Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-2454
UNITED STATES OF AMERICA,
Appellee,
v.
RICHARD DIAZ-BAERGA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fuste, U.S. District Judge]
Before
Boudin, Chief Circuit Judge,
Torruella and Howard, Circuit Judges.
Lisa Aidlin was on brief for appellant.
H.S. Garcia, United States Attorney, Sonia I. Torres,
Assistant United States Attorney, Chief, Criminal Division, and
Timothy R. Henwood, Assistant United States Attorney, were on brief
for appellee.
July 15, 2003
Per Curiam. In April 2002, Richard Diaz-Baerga ("Diaz")
pleaded guilty to conspiracy to possess with intent to distribute
cocaine and aiding and abetting the possession of a firearm during
and in relation to a drug trafficking offense. See 21 U.S.C. §
846, 18 U.S.C. § 924(c)(1)(A). He appeals the district court's
acceptance of his guilty plea as to the firearms charge, contending
that the court inadequately explained the charge during his Rule 11
hearing. We affirm.
I. Factual and Procedural Background
In February 2001, Diaz and his wife, Keila Medina-Roman
("Medina"), both police officers with the Commonwealth of Puerto
Rico Police Department, met with a cooperating witness posing as a
drug dealer and agreed to assist in the transport of what they
believed to be a shipment of cocaine. Diaz transported a shipment
in March 2001 while carrying a firearm, and Medina provided escort
and protection during the transfer. Diaz and Medina received
$10,000 for their services. They later recruited two other
individuals and participated in a second shipment in June 2001,
receiving $5,000 each.
On November 26, 2001, a grand jury indicted Diaz and the
three other participants. Diaz was charged in seven counts,
including conspiracy to possess cocaine with intent to distribute,
21 U.S.C. § 846; aiding and abetting the possession of a firearm
during and in relation to a drug trafficking crime, 18 U.S.C. §
-2-
924(c)(1)(A)(i); aiding and abetting interference with commerce by
threats or violence, 18 U.S.C. § 1951; and attempting to possess
cocaine with intent to distribute, 21 U.S.C. § 846. The indictment
also included forfeiture allegations. At his arraignment, Diaz
entered a plea of not guilty on all charges.
On April 26, 2002, Diaz changed his plea to guilty on two
of the charges -- conspiracy to possess narcotics with intent to
distribute (Count I) and aiding and abetting the possession of a
firearm during and in relation to a drug trafficking crime (Count
II) -- and accepted the forfeiture allegations in the indictment.
The government agreed to dismiss the remaining charges. Following
a Rule 11 hearing, the district court accepted Diaz's plea.
Diaz was later sentenced to ten years' imprisonment on
the conspiracy charge and five years' imprisonment on the firearms
charge, with these terms to be served consecutively. Diaz was also
sentenced to four years and two years of supervised release on the
two charges, respectively, with the terms to be served
concurrently. Diaz was ordered to forfeit $15,000, and to pay a
special monetary assessment of $200. This appeal followed.
II. Analysis
Diaz contends that the district court failed to
adequately explain the firearms charge, in particular that the
carrying or use of the firearm must be "in relation to" the drug
trafficking offense. He argues that his plea as to that charge was
-3-
not intelligent and voluntary, and that he should therefore be
allowed to withdraw it.1 Having failed to raise this issue before
the district court, Diaz is entitled only to plain error review.
United States v. Vonn, 535 U.S. 55, 122 S.Ct. 1043, 1046, 152
L.Ed.2d 90 (2002); United States v. Hoyle, 237 F.3d 1, 5 (1st Cir.
2001). Under this standard, Diaz bears the burden of establishing
that "the outcome would likely have been different if the error had
not occurred." Hoyle, 237 F.3d at 5. He also must show that the
error affected substantial rights, and "seriously affect[ed] the
fairness, integrity, or public reputation of judicial proceedings."
United States v. Gandia-Maysonet, 227 F.3d 1, 4 (1st Cir. 2000)
(quoting United States v. Olano, 507 U.S. 725, 732
(1993)(alteration in original)); see also Hoyle, 237 F.3d at 5.
We consider the totality of the circumstances in
determining whether plain error has occurred, and whether Diaz's
plea was voluntary, intelligent, and knowing. United States v.
Hernandez-Wilson, 186 F.3d 1, 5 (1st Cir. 1999). "What is critical
is the substance of what was communicated by the trial court, and
what should reasonably have been understood by the defendant,
rather than the form of the communication." United States v.
Cotal-Crespo, 47 F.3d 1, 4-5 (1st Cir. 1995).
1
Diaz does not challenge his plea on the conspiracy count or
contest the forfeiture allegations.
-4-
Diaz contends that the district court's description of
the firearms charge, reproduced in the margin,2 improperly led him
to believe that merely carrying a firearm made him guilty of the
crime. Considering the colloquy in its entirety, however, the
district court did not misstate the elements of the offense. The
court stated the nexus that the government would have to prove,
namely that the use or carriage of the firearm facilitated the
drug-trafficking crime. United States v. Ortiz de Jesús, 230 F.3d
1, 5 (1st Cir. 2000). Even if we assume, arguendo, that the
district court's explanation was lacking, Diaz fails to meet his
considerable burden of proof under the plain error standard. For
instance, Diaz fails to even allege -- let alone prove -- that the
outcome likely would have been different if the firearms charge had
been described differently.
2
THE COURT: Count Two of the indictment charges you with the
following: That you knowingly carried a firearm during and in
relation to the drug trafficking offense, and that is why you
knowingly and intentionally joined and acted in the conspiracy that
we have just discussed, to possess with intent to distribute in
excess of 5 kilos of cocaine. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: In the context of this case, it means in very
simple terms that you, obviously, as a police officer you have
firearms, you used them, you carried them while you were committing
these crimes, do you understand that?
THE DEFENDANT: Yes.
THE COURT: And the use and the carrying of these firearms
would allow you, to help you in a way to commit the offenses. It's
a lot easier. It's a convenient thing to have firearms when you
are a drug dealer. Do you understand that?
THE DEFENDANT: Yes.
Hr'g Tr. (Apr. 26, 2002) at 10:17-11:22 (Docket No. 139).
-5-
Diaz also contends that the district court erred in
failing to require him to provide a description of what he had done
to commit the firearms offense. In considering the totality of the
circumstances surrounding a guilty plea, such a description may be
useful evidence in defeating a defendant's claim that he lacked
understanding of the charges against him. Cotal-Crespo, 47 F.3d at
5-6. The absence of such evidence does not, however, demonstrate
that the defendant did not understand the charges. See id.
Affirmed.
-6-