United States v. Negron-Narvaez

United States Court of Appeals
For the First Circuit

No. 03-2678

UNITED STATES OF AMERICA,

Appellee,

v.

LUIS E. NEGRÓN-NARVÁEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Domínguez, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin and Campbell, Senior Circuit Judges.

Michael R. Schneider and Salsberg & Schneider on brief for
appellant.
H.S. Garcia, United States Attorney, Nelson Pérez-Sosa and
Thomas F. Klumper, Assistant United States Attorneys, on brief for
appellee.

April 7, 2005
 SELYA, Circuit Judge. In mid-trial, defendant-appellant

Luis E. Negrón-Narváez (Negrón) pleaded guilty to three drug-

trafficking counts and one count of aiding and abetting the

possession of a firearm in connection with a drug-trafficking

transaction. The district court imposed sentence, and Negrón

appealed. He claims that his guilty plea as to the firearms count

lacked an adequate factual predicate and asks us to set it aside.

Alternatively, he asserts that his guilty plea to the firearms

count resulted from ineffective assistance of counsel. After

careful consideration of the briefs and the record, we uphold the

district court's acceptance of the appellant's guilty plea and

dismiss the ineffective assistance of counsel claim without

prejudice to the appellant's right to reassert it under 28 U.S.C.

§ 2255.

I.

Background

The material facts are largely uncontested. On March 27,

2003, two officers of the Puerto Rico Police Department, acting on

a tip, began surveillance of a black Mazda automobile parked in

front of a residence in Toa Alta. Shortly thereafter, one officer

observed the appellant come out of the house carrying a large bag.

The bag contained smaller bags filled with what appeared to be a

white powder. The appellant passed the large bag to a man later

identified as Mitchell Atanasio-Reyes (Atanasio), who then entered

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the vehicle. The appellant returned to the house while Atanasio

waited in the car. When the appellant reemerged, the officers

arrested both men. Following the arrests, the officers seized a

backpack containing cocaine and marijuana from Atanasio's vehicle.

The officers also recovered a .40 caliber pistol. There

is a salient factual dispute relating to this weapon. One officer

testified that he had seen the appellant place the gun into his

waistband; the other testified that he had removed the gun from the

appellant's person coincident with the arrests. The appellant

contradicted these accounts. He claimed that he did not have the

weapon and that the police had recovered it from inside the black

Mazda.

In short order, a federal grand jury indicted the

appellant and Atanasio on three counts of aiding and abetting each

other in the possession of narcotics with intent to distribute, see

21 U.S.C. § 841(a)(1); 18 U.S.C. § 2, and one count of aiding and

abetting each other with respect to the possession of a firearm in

furtherance of a drug-trafficking scheme, see 18 U.S.C. §§ 2,

924(c)(1)(A).1 A jury trial commenced on July 23, 2003. On the

eighth day of trial, the appellant decided to change his plea.

During the change-of-plea colloquy, he confirmed his understanding

of the charges against him and accepted the government's version of

1
The grand jury named Atanasio as a codefendant. Since this
appeal deals solely with Negrón, we eschew any further reference to
the proceedings against Atanasio.

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the facts. Nevertheless, when the district court asked how he

wanted to plead to the four counts, he initially replied: "One,

two and three guilty, because the gun was in the car."

This response sparked some confusion as to the

appellant's stance vis-à-vis count four (the firearms count). The

district court essayed further questioning and then recessed the

hearing in order to permit the appellant and his lawyer to confer.

After the hearing resumed, the court satisfied itself that the

appellant, at the very least, knew of the gun's presence in the

vehicle. The court thereupon accepted the changed plea as to all

four counts, ordered the preparation of a presentence report (PSI

Report), and scheduled the disposition hearing for September 30,

2003.

At the disposition hearing, the appellant informed the

court that he desired to withdraw his guilty plea. This desire

apparently stemmed from the appellant's newfound knowledge that the

officers who had testified against him subsequently had been

arrested on charges that they had fabricated evidence in other

cases. The court informed the appellant of the obvious — that he

had changed his plea independently of any alleged police misconduct

— and that he would have to show that the plea did not comply with

the requirements of Fed. R. Crim. P. 11 in order to withdraw it.

At that point, the appellant's counsel suggested that the plea to

count four might have been involuntary due to the pressure of the

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trial, compounded by the testimony of the allegedly corrupt

officers.

The district court prudently halted the proceedings and

offered to give the appellant time to investigate the new

information and decide whether to move to withdraw his plea. The

appellant agreed that ten working days would be sufficient for that

purpose, and his trial counsel declared that he would file a Rule

11 motion challenging the validity of the plea if he found some

arguable ground to support it. The ten-day period came and went,

but the appellant eschewed the filing of a Rule 11 motion.

On October 29, 2003, the district court reconvened the

disposition hearing. The court sentenced the appellant to serve

concurrent 121-month incarcerative terms on each of the three drug-

trafficking counts and a consecutive 60-month incarcerative term on

the firearms count. This appeal followed.

II.

The Guilty Plea on Count Four

Before us, the appellant endeavors to resurrect the Rule

11 challenge that he opted not to raise in the court below. In

evaluating this effort, we begin with first principles.

It is well established that a defendant does not have an

absolute right to withdraw a guilty plea. United States v.

Gonzalez-Vazquez, 34 F.3d 19, 22 (1st Cir. 1994). Prior to the

imposition of sentence, a defendant may be allowed to withdraw his

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plea if he can establish, to the trial court's satisfaction, that

a "fair and just reason" for withdrawing the plea exists. United

States v. Pellerito, 878 F.2d 1535, 1537 (1st Cir. 1989); Fed. R.

Crim. P. 11(d)(2)(B). In determining the weight to be attached to

a proffered reason, a court ordinarily should focus on whether any

of Rule 11's core concerns have been implicated, that is, whether

the plea, when entered, was voluntary, intelligent, and knowing.

United States v. McDonald, 121 F.3d 7, 11 (1st Cir. 1997);

Gonzalez-Vazquez, 34 F.3d at 23. Other factors that should be

considered in the decisional calculus include "the force of the

defendant's proffered reason; the timing of the request; the

defendant's assertion of legal innocence (or the lack of such an

assertion); and the likely voluntariness of the plea, given the

newly emergent circumstances." United States v. Doyle, 981 F.2d

591, 594 (1st Cir. 1992). "If the combined weight of these factors

tilts in the defendant's favor," then the trial court, before

ruling, also should factor into the equation "the quantum of

prejudice, if any, that will inure to the government." Id.

In this instance, the appellant challenges only his plea

to count four. In mounting that challenge, he does not actually

argue that his plea was involuntary, unintelligent, or unknowing

(although he parrots that terminology in his brief). Instead, he

makes a related, but somewhat different, argument. He points out

that a guilty plea cannot be accepted in a vacuum. Rather, the

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record must show a factual basis sufficient to justify the plea.

Fed. R. Crim. P. 11(b)(3). Building on this foundation, the

appellant argues that, given his contradictory statements anent the

gun and his occasional professions of innocence as to the firearms

charge, there was an inadequate factual predicate for his plea to

count four. So viewed, the gist of the argument that he makes is

not that the district court should have allowed him to withdraw the

plea despite the absence of any motion to that effect, but, rather,

that the court abused its discretion by accepting it in the first

place. We explore that argument.

The Criminal Rules require a nisi prius court to

determine that an adequate factual basis underpins a guilty plea

before accepting the plea. See Fed. R. Crim. P. 11(b)(3). At its

most abecedarian level, the requirement that a guilty plea must be

supported by an adequate factual basis ensures that the conduct to

which the defendant admits constitutes the crime with which he is

charged. See United States v. Ventura-Cruel, 356 F.3d 55, 59-60

(1st Cir. 2003). This protects 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." Id. (quoting Fed. R. Crim. P. 11 advisory

committee's note (1966 amendment)).

Against this backdrop, it is readily evident that a court

to which a guilty plea is tendered has a duty to ascertain whether

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the record permits a conclusion that the plea has a rational basis

in fact. United States v. Gandia-Maysonet, 227 F.3d 1, 6 (1st Cir.

2000). The component facts may come either from the defendant's

admissions and concessions or from credible evidence proffered by

the government and not contradicted by the defendant. Id.

We caution that this Rule 11 inquiry is not designed to

be a test of guilt versus innocence. The plea-taking court need

only be persuaded that sufficient evidence exists to permit a

reasonable person to reach a finding of guilt; "[t]he court need

not be convinced beyond a reasonable doubt that the defendant is in

fact guilty." United States v. Webb, 433 F.2d 400, 403 (1st Cir.

1970).

Under ordinary circumstances, we review the district

court's acceptance of a guilty plea for abuse of discretion. See

Doyle, 981 F.2d at 594; United States v. Kobrosky, 711 F.2d 449,

454 (1st Cir. 1983). Here, however, the appellant seeks to pursue

an issue that he failed to pursue in the district court despite

having had ample opportunity to do so. Our review of the

sentencing court's action is, therefore, limited to plain error.

United States v. Vonn, 535 U.S. 55, 58-59 (2002); United States v.

Cheal, 389 F.3d 35, 40 (1st Cir. 2004).

We have stated that:

Review for plain error entails four showings:
(1) that an error occurred (2) which was clear
or obvious and which not only (3) affected the
defendant's substantial rights, but also (4)

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 seriously impaired the fairness, integrity, or
public reputation of judicial proceedings.

United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). In this

context, then, the appellant must show that the district court

erred in accepting the guilty plea, that the error was patent, that

it affected his substantial rights, and that it seriously impaired

the fairness, integrity, or public reputation of the proceeding.

The statute of conviction makes it unlawful for any

person, during and in relation to a drug-trafficking crime, to use,

carry, or possess a firearm. 18 U.S.C. § 924(c)(1)(A). Count four

of the indictment, however, does not charge the appellant with

transgressing this proscription per se, but, rather, with aiding

and abetting such a violation. See 18 U.S.C. § 2(a). Because the

indictment charges the appellant as an aider and abettor, a finding

of guilt requires a showing that the defendant knew "to a practical

certainty" that some participant in the drug-trafficking crime

would be using, carrying, or possessing a firearm in furtherance

thereof. United States v. Shea, 150 F.3d 44, 50 (1st Cir. 1998)

(quoting United States v. Spinney, 65 F.3d 231, 239 (1st Cir.

1995)).

On this record, the presence of the gun, in close

proximity to the drugs, justified an inference that it was

possessed in connection with the ongoing drug-trafficking

operation. See, e.g., United States v. Carlos Cruz, 352 F.3d 499,

509 (1st Cir. 2003); United States v. Luciano, 329 F.3d 1, 6 (1st

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Cir. 2003). This is true regardless of whether the weapon was

being carried on the appellant's person or was located within easy

reach inside the black Mazda. The crux of the matter, then, is

knowledge.

In the appellant's view, the record does not adequately

show that he had knowledge of the gun's presence. He premises this

view on the colloquy that occurred at his change-of-plea hearing

and a statement contained in the PSI Report. We examine those

offerings.

At the change-of-plea hearing, the prosecutor stated that

he was prepared to prove that the appellant had placed a gun in his

waistband as he and Atanasio prepared to leave with the drugs.2

The appellant initially accepted the prosecutor's version of the

facts. But when the court later asked the appellant for his plea

to the four counts, he responded as quoted above ("One, two and

three guilty, because the gun was in the car."). The following

colloquy ensued:

THE COURT: Okay. One, two and three guilty,
because the gun was in the car. One, two and
three and four because the gun was in the car.
Very well.

MR. BAZAN (Prosecutor): Can we clarify?

THE COURT: Yes

2
This representation conformed to testimony already given by
one of the arresting officers during the interrupted trial.

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 MR. BAZAN: He's pleading guilty to all four
counts.

MR. QUETGLAS (Defense Counsel): But the
position is that the gun was in the car.

THE COURT: Very well. It doesn't matter,
whether it was in the car or not.

The court then clarified why it did not matter: the appellant had

been charged with aiding and abetting, and that made the location

of the gun irrelevant as long as the appellant knew of its

presence.

Upon hearing this explanation, the appellant blurted out

that he had been completely unaware of the gun's presence inside

the Mazda. The court stated that if this was the appellant's

position, it would not accept a change of plea as to count four;

the trial would have to proceed; and the jury would have to pass

upon that count.

At that juncture, defense counsel asked for a recess.

When the hearing resumed, the following colloquy took place:

MR. QUETGLAS: I was talking to my client and
apparently he was confused as to the weapons
charge, because it was his understanding that
if he did not have the weapon on him he could
not be found guilty of that crime. His
position is that the gun was inside the black
Mazda. Now, he has clarified to me that he
had knowledge of the weapon being there. So
the bottom line is that he's going to enter a
guilty plea as to that charge, but I would
request the Court to ask him personally.
(Emphasis supplied).

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 THE COURT: Okay. Sir, . . . did you hear the
explanation made by Counsel Quetglas to the
Court?

MR. NEGRÓN: Yes, Sir.

THE COURT: Okay. After hearing that
explanation by Counsel Quetglas are you to
continue making a plea of guilty as to count
four which is the weapons charge?

MR. NEGRÓN: Yes, Sir.

THE COURT: All right. Very well. So, you're
going to continue making a plea as to counts
one, two, three and four?

MR. NEGRÓN: Yes, Sir.

We think that this exchange forged an adequate factual

basis for the proposed plea. The mere fact that the appellant at

one point took a contradictory position as to his culpability on

the firearms count neither alters our conclusion nor dispels the

factual basis for the plea. That sort of temporary contradiction

is inherent in virtually every change of plea.

This case illustrates the point. The appellant's

original position, voiced at his arraignment, was one of innocence

with respect to the totality of the charged offenses. He

maintained that posture throughout the pretrial proceedings and the

first seven days of trial. When he decided to change his plea, he

initially acquiesced in the government's version of the facts, but

then reiterated his claim of innocence on the gun charge during a

colloquy with the court. Nevertheless, after consultation with

counsel and a fuller explication of the elements of the offense by

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the court he changed his tune and acknowledged that he understood

(i) that actual possession of the gun was not an element of the

offense, and (ii) that he could be found guilty so long as he knew

that his accomplice had deposited the gun inside the Mazda for

possible use during the drug-trafficking transaction. He then

admitted that he knew that the gun was in the car. These

statements were in no way coerced. Together, they constituted his

final answer and comprised a factual basis sufficient to allow the

district court to accept the proffered plea. See Cheal, 389 F.3d

at 43 (holding that a defendant's admissions are sufficient to

ground the requisite factual basis).

The appellant attempts to blunt the force of this

reasoning by arguing that his admissions at the resumed change-of-

plea hearing were flawed because his attorney did the talking and

he merely agreed with his attorney's statements. Given the

presence of the appellant and the importance of the issue, it would

have been preferable had the judge obtained from the appellant's

own mouth an express acknowledgment that he had known about the

gun. Still, the colloquy, as conducted, was adequate to establish

this fact. The attorney's statements, verified in open court by

the appellant, constituted adoptive admissions attributable to the

appellant. See United States v. Paulino, 13 F.3d 20, 24 (1st Cir.

1994); United States v. Fortes, 619 F.2d 108, 115 (1st Cir. 1980).

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 In reviewing Rule 11 challenges, we "review the totality

of the circumstances of the hearing." United States v. Hoyle, 237

F.3d 1, 7 (1st Cir. 2001). "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). Applying these principles, we have found,

in similar cases, that a defendant, by responding to another

person's explanation of what happened, may thereby establish the

factual basis needed to undergird a guilty plea. See, e.g., United

States v. Japa, 994 F.2d 899, 902-03 (1st Cir. 1993). So it is

here.

In a last-ditch effort to save the day, the appellant

asserts that a passage in the PSI Report, which informed the

sentencing court that the appellant "denied ownership of the

firearm," contradicted his admissions and so undermined the factual

basis for his plea as to require the court to take corrective

action. We reject this assertion. Leaving to one side the odd

timing — after all, the change-of-plea hearing is when the district

court must determine the adequacy of the factual basis for the

proffered plea — the short answer to the appellant's plaint is that

the statement in the PSI Report did not contradict the appellant's

admissions at all. Although the appellant disavowed owning the

gun, ownership was not an element of the offense of conviction.

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United States v. Dirden, 38 F.3d 1131, 1142 (10th Cir. 1994).

Thus, the statement did nothing to call into question the

appellant's acknowledgment that he knew his accomplice possessed a

firearm and had stowed it inside the Mazda.

That ends this aspect of the matter. The appellant

cannot demonstrate any error on the part of the district court in

connection with his Rule 11 challenge. A fortiori, that challenge

fails plain-error review.

III.

Ineffective Assistance of Counsel

We need not tarry over the appellant's remaining

assignment of error. He complains that his trial attorney's

failings with respect to his guilty plea to count four constituted

ineffective assistance of counsel. We interpret the appellant's

argument to be that his trial attorney allowed him to plead guilty

without having a sufficient understanding of the nature of the

firearms charge and then compounded the error by not filing a

motion to withdraw the guilty plea even though the district court

continued the disposition hearing to give him time to submit such

a motion.

On the facts recounted above, this challenge looks

unpromising. In all events, the claim was not made below and the

record is not fully developed with respect to the elements of the

claim. See, e.g., Strickland v. Washington, 466 U.S. 668, 687-96

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(1984) (limning standard for ineffective assistance claims); Ouber

v. Guarino, 293 F.3d 19, 25-26 (1st Cir. 2002) (same). Thus, the

assignment of error is not properly before us.

For over twenty years, this court has held with

monotonous regularity that "fact-specific claims of ineffective

assistance cannot make their debut on direct review of criminal

convictions, but, rather, must originally be presented to, and

acted upon by, the trial court." United States v. Mala, 7 F.3d

1058, 1063 (1st Cir. 1993). The rationale is straightforward.

Ineffective assistance of counsel claims impose upon the defendant

the necessity to show "first, that counsel's performance was

constitutionally deficient and, second, that the deficient

performance prejudiced the defense." Id. (citing Strickland, 466

U.S. at 687). The evaluation of such claims "typically require[s]

the resolution of factual issues that cannot efficaciously be

addressed in the first instance by an appellate tribunal." Id.

Moreover, "the insights of the trier, who has seen and heard the

witnesses at first hand and watched the dynamics of the trial

unfold, are often of great assistance." United States v. Moran,

393 F.3d 1, 10 (1st Cir. 2004); see also Mala, 7 F.3d at 1063

("Under ideal circumstances, the court of appeals should have the

benefit of this evaluation; elsewise, the court, in effect may be

playing blindman's buff.").

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 To be sure, we occasionally have considered ineffective

assistance of counsel claims that were raised for the first time on

direct review. See, e.g., United States v. Natanel, 938 F.2d 302,

309-10 (1st Cir. 1991); United States v. Caggiano, 899 F.2d 99, 100

(1st Cir. 1990). By and large, however, we have limited that

praxis to situations in which "the critical facts are not in

dispute and the record is sufficiently developed to allow reasoned

consideration of the claim." Mala, 7 F.3d at 1063. This is not

such a case. For one thing, the record before us contains no

indication as to why the appellant's trial attorney opted not to

file a motion to withdraw the guilty plea. For another thing, the

record is murky as to what conversations between the appellant and

his lawyer may have informed that decision. Lacking these critical

facts, we are constrained to follow our usual practice and treat

the ineffective assistance of counsel claim as prematurely raised.

See Moran, 393 F.3d at 10-11.

IV.

Conclusion

We need go no further. For the reasons elucidated above,

we reject the appellant's Rule 11 challenge and dismiss, without

prejudice, his ineffective assistance of counsel claim. The latter

claim may be reasserted, if the appellant so chooses, in an

application for post-conviction relief brought pursuant to 28

U.S.C. § 2255.

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Affirmed.

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