United States Court of Appeals
For the First Circuit
No. 98-1788
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE R. PEREZ-CARRERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin and Campbell, Senior Circuit Judges.
Paul M. Koziell, by appointment of the court, on brief for
appellant.
Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco
and Nelson Pérez-Sosa, Assistant United States Attorneys, on
brief for appellee.
March 16, 2001
SELYA, Circuit Judge. On February 21, 1996, a federal
grand jury indicted defendant-appellant José R. Pérez-Carrera
(along with two codefendants). The indictment contained six
counts, viz., aiding and abetting a bank robbery, death
resulting, in violation of 18 U.S.C. §§ 2 and 2113(a), (d), (e)
(count 1); aiding and abetting the use and carriage of automatic
weapons during and in relation to a crime of violence, in
violation of 18 U.S.C. §§ 2 and 924(c)(1), (3) (count 2); aiding
and abetting the taking of a motor vehicle by force and
violence, intending to cause death or serious bodily harm and
resulting in death, in violation of 18 U.S.C. §§ 2 and 2119(3)
(count 3); aiding and abetting the use and carriage of firearms
during a carjacking, in violation of 18 U.S.C. §§ 2 and
924(c)(1), (3) (count 4); aiding and abetting the possession or
receipt of firearms shipped or transported in interstate or
foreign commerce, in violation of 18 U.S.C. §§ 2, 922(g), and
924(a)(2) (count 5); and aiding and abetting the possession of
two semi-automatic assault rifles in violation of 18 U.S.C. §§
2, 922(v)(1), and 924(a)(1)(B) (count 6). The appellant
originally pleaded not guilty across the board but subsequently
moved to revise his plea.
The district court convened a change-of-plea hearing
on April 9, 1997. During that session, the appellant withdrew
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his original plea and entered a plea of guilty to counts 1, 2,
3, 4, and 6 pursuant to a written agreement with the government
(the Plea Agreement). After conducting an extensive colloquy,
see Fed. R. Crim. P. 11, the district court accepted the changed
plea and scheduled disposition for August 15, 1997.
After several delays, the court convened the
disposition hearing on May 27, 1998. At that time, the court
dismissed count 5 of the indictment and sentenced the appellant
to concurrent 293-month incarcerative terms on counts 1 and 3;
a similarly concurrent 60-month term on count 6; a 120-month
term on count 2, consecutive to the sentences imposed on counts
1, 3, and 6; and a 240-month term on count 4, consecutive to all
the other sentences. Facing the grim prospect of 653 months in
prison, Pérez-Carrera filed this timely appeal.
Proceedings before this court have brought to light a
series of bevues. The Plea Agreement erroneously recited that
count 2 exposed the appellant to "[a] mandatory sentence of five
years." But because count 2 charged the appellant with
violating 18 U.S.C. § 924(c)(1) by the use and carriage of
automatic weapons, the offense carried a mandatory sentence of
ten years under 18 U.S.C. § 924(c)(1)(B). By like token, the
Plea Agreement mistakenly recited that the appellant faced "[a]
statutory maximum sentence of TEN (10) years imprisonment" on
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count 6. But because that count charged the appellant with
aiding and abetting in the unlawful possession of two semi-
automatic assault weapons, as that term is defined in 18 U.S.C.
§ 921(a)(30), the offense carried a maximum penalty of five
years. See 18 U.S.C. §§ 922(v)(1), 924(a)(1)(B). These errors
were repeated in the change-of-plea colloquy. During that
exchange, the district court told the appellant that, if he pled
guilty, he would be exposed to a mandatory sentence of five
years on count 2 and a maximum sentence of ten years on count 6.
These statements were inaccurate.1
By the time of sentencing, the probation department had
filed a presentence report that recited the correct sentencing
parameters for counts 2 and 6, and the court sentenced the
appellant within those parameters. No one spotted the
inconsistencies between the representations originally made to
the appellant and the sentence actually imposed. Despite the
lack of any contemporaneous objection, however, we may review
the sentence for plain error. United States v. Gandia-Maysonet,
227 F.3d 1, 5 (1st Cir. 2000).2 We warm to that task, mindful
1 The Plea Agreement accurately described the penalties
associated with the other counts of conviction, and the district
court gave the appellant correct advice anent those penalties in
the change-of-plea colloquy.
2The test for plain error is multi-dimensional. See United
States v. Olano, 507 U.S. 725, 732 (1993) (explaining required
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that part of the plain error calculus requires an appellant to
show that an error was not harmless, i.e., that it affected his
substantial rights. See supra note 2; see also Fed. R. Crim. P.
11(h).
As to count 6, the misstatements made by the government
and the district court obviously were harmless (and, therefore,
not a proper ground for setting aside the appellant's plea or
sentence). Although the prosecutor and the court misinformed
the appellant as to the maximum penalty for count 6, the
sentence actually imposed was not only within legal limits, but
also was substantially less than the mistaken maximum. Under
those circumstances, there was no prejudice. 3 E.g., United
States v. Camacho, 233 F.3d 1308, 1319 (11th Cir. 2000),
petition for cert. filed (U.S. Feb. 20, 2001) (No. 00-8593);
United States v. McDonald, 121 F.3d 7, 11 (1st Cir. 1997).
Count 2 presents a different problem. The government
and the district court incorrectly advised the appellant that
this count carried a mandatory five-year penalty. The appellant
showing as encompassing (1) an error (2) that is obvious and (3)
that affects the defendant's substantial rights, (4) provided
that the error, if uncorrected, also may affect the fairness,
integrity, or public repute of judicial proceedings); Gandia-
Maysonet, 227 F.3d at 5-6 (same).
3
To cinch the harmless-error inquiry, the sentence imposed
on count 6 was less than, yet concurrent with, the untainted
sentences validly imposed on counts 1 and 3.
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pleaded guilty based on that information. The court nonetheless
sentenced him to ten years in prison. In light of the
representations made to the appellant in connection with his
guilty plea, this sentence cannot stand.
To its credit, the government concedes that, under
these circumstances, the imposition of a ten-year sentence on
count 2 violates Rule 11(c)(1) and is not harmless within the
contemplation of Rule 11(h). In view of this concession, we
think that the error is easily corrected. After all, the
district court did inform the appellant that his plea to count
2 would result in the imposition of a mandatory sentence of five
years. Since the United States concedes the error and informs
us that it has no objection to the lesser sentence, there is no
need to set aside the appellant's plea to this count. Rather,
we instruct the district court, on remand, to modify the
sentence imposed by reducing the incarcerative term under count
2 to five years. See Fed. R. Crim. P. 43(c)(4); United States
v. Moree, 928 F.2d 654, 655-56 (5th Cir. 1991).
We are cognizant of the appellant's claim that, had he
been aware of the errors discussed above, he would not have
entered a guilty plea at all. Appellant's Br. at 10. This
claim, however, is made in wholly conclusory terms. We have
reviewed the record with care and find no basis for suspecting
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that the misinformation about the terms of imprisonment
available in respect to counts 2 and 6 deprived the appellant of
a full understanding of the consequences of his actions or
otherwise influenced his decision to change his plea. After
all, counts 1 and 3 — each of which carried a maximum term of
life imprisonment — were the centerpieces of the indictment, and
it is surpassingly difficult to believe that, having decided to
bite the bullet and plead to those grave charges, a more
accurate description of the penalties associated with counts 2
and 6 would have made a dispositive difference.
We add two observations relating to different subjects.
The first deals with a pro se brief filed by the appellant. We
have carefully reviewed that submission (which dwells on the
government's refusal to move for a downward departure at
sentencing pursuant to USSG §5K1.1) and find it wholly lacking
in merit. See, e.g., Wade v. United States, 504 U.S. 181, 185-
86 (1992) (holding that a defendant must make substantial
showing of improper motive to force review of the prosecutor's
refusal to seek a "substantial assistance" downward departure);
United States v. Alegría, 192 F.3d 179, 183 (1st Cir. 1999)
(similar); United States v. Amparo, 961 F.2d 288, 293 (1st Cir.
1992) (noting that wholly conclusory allegations cannot overcome
the government motion requirement).
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Our second observation relates to yet another pro se
filing. While this appeal was pending, the appellant served a
pro se motion suggesting that his appointed appellate counsel
had failed to raise various defenses and was, therefore,
ineffective.4 By separate order, we agreed to treat this motion
as a supplemental pro se brief.
We have considered this submission. We think that it
falls within the ambit of our oft-stated rule "that fact-
specific claims of ineffective assistance cannot make their
debut on direct review of criminal convictions." United States
v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993) (collecting cases).
Given the need for factfinding — a task that we, as an appellate
court, are neither equipped nor inclined to undertake — that
rule applies here. Consequently, we dismiss the appellant's
ineffective assistance claim, without prejudice to his right to
assert it in the district court by way of a petition for post-
conviction relief under 28 U.S.C. § 2255.
We need go no further. Despite the unfortunate errors
that occurred in the lower court, we see no manifest injustice
and, thus, no compelling reason for setting aside the
4
The appellant apparently faults his counsel for neglecting
to pursue sundry theories of prosecutorial misconduct or to
expose misrepresentations supposedly made by his trial counsel.
These arguments depend almost exclusively on facts that are not
evident from the existing record.
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appellant's conviction or allowing him to withdraw his guilty
plea. Since the only cognizable defect in his sentence is
easily corrected, we remand the case to the district court for
the entry of a modified sentence in regard to count 2 and, as
modified, uphold the judgment below.
It is so ordered.
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