Not For Publication in West's Federal Reporter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. 02-2250
UNITED STATES OF AMERICA,
Appellee,
v.
JERRY MARTÍNEZ-MARTÍ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Lipez, Circuit Judges.
Leslie W. O'Brien, was on brief, for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, with whom
H.S. García, United States Attorney, and Sonia I. Torres-Pabón,
Assistant United States Attorney, Chief, Criminal Division, were on
brief, for appellee.
May 4, 2004
Per Curiam. Defendant-appellant Jerry Martínez-Martí was
charged with one count of conspiracy to distribute narcotics in
violation of 21 U.S.C. § 846 and one count of possession of
firearms in furtherance of a drug trafficking crime in violation of
18 U.S.C. § 924(c)(1). Martínez-Martí pleaded guilty to both
counts and was sentenced to a term of 144 months imprisonment for
the narcotics violation and 60 months imprisonment for the firearms
violation, to be served consecutively. Martínez-Martí appeals the
district court's acceptance of his guilty plea for the firearms
possession charge because, he argues, there was an insufficient
factual basis for the plea. We disagree.
At the plea hearing, the prosecutor submitted that
[t]he evidence would have shown that [as an
enforcer and supervisor of drug distribution],
the defendant, Jerry Martínez-Martí would
possess firearms and ensure that other members
of the conspiracy would possess and use
firearms in order to protect itself and the
other members of the conspiracy, the drug
business, the narcotics themselves, and the
proceeds derived from sales of narcotics.
The plea agreement Martínez-Martí signed contained a similar
description of the nature of the firearms violation. At the
sentencing hearing, Martínez-Martí informed the district court that
at no time [has] the U.S. Attorney's Office,
nor my attorney, . . . handed me any evidence
that directly or indirectly links me with the
crime of possessing a firearm, nor of my
knowing that others were using firearms . . .
[but knowing] that if I am to go to trial
. . . I could face a life sentence in prison
. . . I make this decision to plead guilty.
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In response to this statement, the prosecutor informed
the district court that "there would have been more than one
cooperating witness that would have testified that throughout the
course of this conspiracy, on more than one occasion, that this
Defendant possessed a firearm during the course of his role of that
conspiracy."
The district court then asked Martínez-Martí for his
response and Martínez-Martí replied that he agreed with the plea
that he signed, he assumed responsibility, and he agreed with the
version of the facts presented by the prosecutor. The district
court then asked Martínez-Martí specifically if "you admit that you
possessed weapons in connection with the traffic offense."
Martínez-Martí replied "Well, yes." The district court then found
that Martínez-Martí's decision to plead guilty was made "knowingly,
intelligently, voluntarily, and solemnly," noting that Martínez-
Martí "acknowledge[d] the prosecutor's version of the facts" which
would have shown guilt beyond a reasonable doubt on both charged
counts.
Martínez-Martí now contends that the district court's
acceptance of the guilty plea violated Federal Rule of Criminal
Procedure 11(b)(3) which requires that "[b]efore entering judgement
on a guilty plea, the court must determine that there is a factual
basis for the plea." Fed. R. Crim. P. 11(b)(3). Although neither
party addressed the issue, it is important to note that Rule 11 was
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subject to an amendment that took effect on December 1, 2002.
Martínez-Martí's guilty plea and sentence took place in August
2002. Because his guilty plea was entered prior to the effective
date of the amendment, the pre-amended Rule 11 applies. See United
States v. Mercado, 349 F.3d 708, 710 (2d Cir. 2003), cert. denied,
124 S. Ct. 1190 (2004).
The analogous provision to current Rule 11(b)(3) in the
prior version of Rule 11 is Rule 11(f), which stated that
"[n]otwithstanding the acceptance of a plea of guilty, the court
should not enter a judgment upon such plea without making such
inquiry as shall satisfy it that there is a factual basis for the
plea." See Libretti v. United States, 516 U.S. 29, 38 (1995).
Martínez-Martí believes that this rule was violated
because the information provided to the sentencing judge was too
vague in that it failed to inform the district court when and where
Martínez-Martí was alleged to have a firearm, what he actually did
with a firearm that furthered the conspiracy, and what type of
firearm he possessed.
When a Rule 11 challenge is made for the first time on
appeal, we review for plain error. United States v. Vonn, 535 U.S.
55, 59 (2002); see also United States v. Mills, 329 F.3d 24, 27
(1st Cir. 2003) (stating that "[an] error not objected to at the
plea hearing is reversible only where the error is plain, affects
the defendant's substantial rights, and seriously affects the
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fairness of the proceeding.") (citations omitted). A "a district
judge satisfies the requirements of Rule 11(f) when he determines
that the conduct which the defendant admits constitutes the offense
charged in the indictment or information or an offense included
therein to which the defendant has pleaded guilty." Libretti, 516
U.S. at 38 (internal quotations and citations omitted). "Often
what the judge is told at the hearing is an abbreviated version of
the full range of government evidence, omitting detail and nuance
that would be offered at trial." United States v. Gandía-Maysonet,
227 F.3d 1, 6-7 (1st Cir. 2000). Rule 11(f)'s requirement -- that
the trial court be satisfied that a guilty plea has a basis in fact
-- is designed to "protect a defendant who is in the position of
pleading voluntarily with an understanding of the nature of the
charge but without realizing that his conduct does not actually
fall within the charge." McCarthy v. United States, 394 U.S. 459,
467 (1969) (footnote and internal quotation omitted).
In this case, Martínez-Martí questioned whether the
government had evidence linking him with the crime of possessing a
firearm. In response, the prosecution asserted that they had more
than one cooperating witnesses who could testify that Martínez-
Martí possessed a firearm while executing his role in the
conspiracy. After hearing the prosecutor's response, the judge
attempted to clarify whether Martínez-Martí admitted that he
possessed weapons to further the offenses. Martínez-Martí again
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admitted that he did possess firearms to further the conspiracy.
This colloquy proves that Martínez-Martí understood the nature of
the charge against him and realized that his actions fell within
that charge. The district court fulfilled its Rule 11(f) duty of
"making such inquiry as shall satisfy it that there is a factual
basis for the plea."
As a result, it is not a violation of the former Federal
Rule of Criminal Procedure 11(f) for a judge to accept a plea
where, as here, the defendant admitted that the facts at trial
would have shown that he possessed firearms to further the
conspiracy and where, as here, the defendant had an opportunity to
explain "in his own words" whether he admitted to possessing
weapons in connection with the conspiracy. For the aforementioned
reasons, Martínez-Martí's conviction and sentence are affirmed.
Affirmed.
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