United States Court of Appeals
For the First Circuit
No. 06-2343
UNITED STATES OF AMERICA,
Appellee,
v.
CIRILO JIMINEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Lipez, Circuit Judge,
Selya and Stahl, Senior Circuit Judges.
Martin D. Harris on brief for appellant.
Thomas P. Colantuono, United States Attorney, and Donald A.
Feith, Assistant United States Attorney, on brief for appellee.
August 14, 2007
SELYA, Senior Circuit Judge. In this proceeding, the
appellant asks us to vacate his guilty plea or, alternatively, to
set aside his sentence. If all else fails, he prays for relief
based on the ineffective assistance of counsel and the discovery of
new evidence. Discerning no merit in any of these importunings, we
affirm the judgment below.
Because this appeal follows a guilty plea, we draw the
relevant facts from the change-of-plea colloquy, the presentence
investigation report, and the transcript of the disposition
hearing. See United States v. Mercedes Mercedes, 428 F.3d 355, 357
(1st Cir. 2005).
This case had its genesis in a scheme that entailed
transporting heroin between Rhode Island and New Hampshire and then
distributing it. After a time, two deaths resulted from heroin
overdoses. Investigators concluded that one Brian Mahoney was the
source of the death-inducing heroin.
The authorities, using a pen register and trap-and-trace
device, charted hundreds of telephone calls between Mahoney's
telephone and a telephone linked to defendant-appellant Cirilo
Jiminez. After his arrest, Mahoney agreed to cooperate, identified
the appellant as his supplier, and made a controlled buy from the
appellant. The appellant's arrest and indictment followed apace.
On July 27, 2005, the appellant appeared before the
district court, withdrew his original plea, and entered a plea of
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guilty to a count of conspiracy to distribute 100 grams or more of
heroin, death resulting. See 21 U.S.C. §§ 841(a)(1) &
(b)(1)(B)(i), 846. Under a negotiated plea agreement (the
Agreement), the government pledged to drop the other two counts
contained in the indictment.
At the change-of-plea hearing, the district court,
through an interpreter, reviewed the Agreement with the appellant.
See Fed. R. Crim. P. 11(b)(1). In response to the court's
questions, the appellant acknowledged the accuracy of the
prosecution's version of the relevant events. He also confirmed
his understanding that the charge to which he was pleading carried
a 20-year mandatory minimum sentence and that he would not be able
to withdraw his guilty plea should the court eschew the
government's sentencing recommendation.
At the conclusion of the colloquy, the district court
determined that the plea was being tendered knowingly and
voluntarily, and that a factual basis existed for it. Accordingly,
the court accepted the plea.
The disposition hearing took place on August 31, 2006.
The district court imposed a 20-year incarcerative term. This
timely appeal followed.
The appellant's main arguments, neither of which was
raised below, are cast in the raiment of Rule 11. Where, as here,
a defendant fails to object below to particular aspects of a
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change-of-plea proceeding and asserts objections for the first time
on appeal, appellate review is for plain error.1 See Mercedes
Mercedes, 428 F.3d at 358. In order to establish plain error, the
defendant must show "(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) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings." United
States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). We apply that
standard here.
In order to pass constitutional muster, a guilty plea
must be both knowing and voluntary. Bousley v. United States, 523
U.S. 614, 618 (1998); United States v. Delgado-Hernandez, 420 F.3d
16, 19 (1st Cir. 2005). Accordingly, the trial court must ensure
that a defendant understands the nature of the charges to which he
purposes to plead and the penalties that may attach. See United
States v. Gandia-Maysonet, 227 F.3d 1, 3 (1st Cir. 2000); see also
Fed. R. Crim. P. 11(b)(1). In this instance, the appellant
contends that he was unaware of the mandatory minimum sentence and
1
Although the appellant at one point filed a pro se motion to
withdraw his guilty plea, that motion contained no articulation of
any of the grounds that he now advances in support of withdrawing
his plea. The district court denied that motion without prejudice,
allowed the appellant to dismiss his counsel, and advised him to
consult successor counsel regarding withdrawal of the plea.
Although the appellant retained a new lawyer, he never filed a
revised motion to withdraw his plea. We construe this failure as
a forfeiture. See United States v. Rodriguez, 311 F.3d 435, 437
(1st Cir. 2002).
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that, therefore, he could not have made a knowing and voluntary
plea.
We summarily reject this contention. The 20-year
mandatory minimum term of imprisonment was spelled out, bluntly and
distinctly, in the Agreement. The appellant, represented by
counsel and aided by an interpreter, signed the Agreement.
Moreover, he indicated during the change-of-plea colloquy that he
had read the Agreement and understood its contents. Last — but far
from least — the district court, during that colloquy, informed the
appellant of the mandatory minimum sentence with unmistakable
clarity.2 It is thus apparent that the record conclusively
reflects the appellant's argument.
To be sure, the appellant says that he was misled by the
suggestion that his guideline sentencing range would be 168-210
months. But a sentencing court is not bound to credit self-serving
protestations, see, e.g., United States v. Ramos, 810 F.2d 308, 313
(1st Cir. 1987), and we too are free to reject such claims. In all
events, any conceivable confusion would have been dispelled by the
court's clear statement about the mandatory minimum prison term.
See United States v. Isom, 85 F.3d 831, 835-36 (1st Cir. 1996).
2
We quote the relevant exchange:
THE COURT: "The charge against you carries a prison term
of up to life and a mandatory minimum prison term of 20
years. Do you understand that?"
MR. JIMINEZ: "Yes."
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Consequently, we see no error — let alone plain error — in the
district court's finding that the appellant's plea was tendered
knowingly and voluntarily.
The appellant also asserts for the first time on appeal
that his plea rested on an inadequate factual predicate. He bases
this assertion on a purported lack of evidence that the heroin he
distributed led to either of the two deaths identified by the
government.
The legal framework is familiar: before a guilty plea can
be accepted, the district court is required to find that a factual
basis for the plea exists. See Fed. R. Crim. P. 11(b)(3). This
requirement serves to ensure that the defendant's conduct actually
corresponds to the charges lodged against him. United States v.
Negrón-Narváez, 403 F.3d 33, 37 (1st Cir. 2005). It 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." United
States v. Ventura-Cruel, 356 F.3d 55, 59-60 (1st Cir. 2003)
(quoting Fed. R. Crim. P. 11 advisory committee's note (1966
amendment)). The facts relevant to this inquiry may be gleaned
either from the defendant's admissions or from the prosecution's
version of the evidence (to the extent that it is acknowledged by
the defendant). Gandia-Maysonet, 227 F.3d at 6.
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Here, "death resulting" was no mere lagniappe but,
rather, an essential element of the charge to which the appellant
pleaded. See United States v. Soler, 275 F.3d 146, 152 (1st Cir.
2002). Thus, the factual basis for the plea had to cover this
point. We think that it did.
At the change-of-plea hearing, the government offered a
more than sufficient scenario linking the appellant to the heroin-
related deaths. The change-of-plea record indicates that Mahoney
was tightly tied to the heroin ingested by both decedents shortly
before they died. Mahoney, in turn, named the appellant as his
supplier and told the authorities that he had been dealing with the
appellant for almost two years; during that period, he had
purchased significant quantities of heroin (between 150 and 300
bags a week). A subsequent search of the appellant's vehicle
incident to his arrest revealed 300 bags of heroin on hand.
In an attempt to blunt the force of the prosecution's
version of events, the appellant, going beyond the confines of the
change-of-plea record, sketches two alternative scenarios. First,
he speculates that the heroin Mahoney purchased from him may have
been for Mahoney's personal use and, thus, not distributed to the
decedents. Second, he speculates that Mahoney may have had another
supplier for heroin and that the death-inducing heroin may have
come from that source. These surmises miss the mark.
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A Rule 11 inquiry is not designed to prove a criminal
defendant's guilt beyond all doubt. See Negrón-Narváez, 403 F.3d
at 37; United States v. Webb, 433 F.2d 400, 403 (1st Cir. 1970).
A mere possibility (say, that the heroin may have been for personal
use or that Mahoney may have had a second supplier) might
constitute a plausible line of defense at trial, but such
possibilities, without more, are not enough to dissipate an intact
factual basis for a guilty plea. Negrón-Narváez, 403 F.3d at 37.
In other words, as long as the government's proffered facts,
conceded by the defendant to be true, touch all the bases, there is
a sufficient factual basis for the tendered plea. It is immaterial
that the proffer does not exclude every hypothesis consistent with
the defendant's innocence.
So it is here. The change-of-plea record provides an
ample factual predicate for the appellant's guilty plea. That
factual predicate may not have been impervious to attack at trial
— but it did not have to be. Consequently, there was no plain
error in the district court's conclusion that a satisfactory
factual basis existed for the plea.
Moving from his conviction to his sentence, the appellant
argues that the "death resulting" element that enhanced his
sentence should have been proven beyond a reasonable doubt. This
argument is based loosely on the Supreme Court's decision in
Apprendi v. New Jersey, 530 U.S. 466, 476-77 (2000).
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The argument is a non-starter. Apprendi is inapplicable
in this case because the "death resulting" element was part and
parcel of both the indictment and the offense of conviction. To
cinch matters, the appellant admitted responsibility for the
victims' deaths during the change-of-plea colloquy — that concept
was embedded in the prosecution's version of the events, to which
he acceded — and his guilty plea waived any right to have the
underlying facts found by a jury beyond a reasonable doubt. See
United States v. Gil-Quezada, 445 F.3d 33, 35 (1st Cir. 2006).
If more were needed — and we doubt that it is — an
Apprendi error arises only if the defendant receives a sentence
beyond the default statutory maximum for the offense of conviction.
See Duarte, 246 F.3d at 60. That is not what occurred here. The
statute under which the appellant was charged provides in pertinent
part that a person who unlawfully distributes 100 grams or more of
heroin "shall be sentenced to a term of imprisonment which may not
be less than 5 years and not more than 40 years." 21 U.S.C. §
841(b)(1)(B). The appellant received a sentence of 20 years — well
below the 40-year statutory maximum for this offense. Hence, the
claim of Apprendi error is hopeless.
The appellant next suggests that, in order for the court
to impose a 20-year term of immurement under 21 U.S.C. §
841(b)(1)(B), the government would have had to proffer evidence
that death was a reasonably foreseeable consequence of his heroin
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distribution. In the absence of such evidence, the appellant
argues, his sentence should be vacated. To support this argument,
the appellant cites a line of cases holding that a defendant may
not be sentenced for a drug quantity that, while properly
attributable to the conspiracy to which he belonged, was not
foreseeable to him. See, e.g., United States v. Colon-Solis, 354
F.3d 101, 103 (1st Cir. 2004); United States v. Lanni, 970 F.2d
1092, 1093 (2d Cir. 1992).
This argument cannot survive even cursory scrutiny. We
have held, squarely and recently, that there is no foreseeability
requirement for the "death resulting" component of 21 U.S.C. §
841(b)(1)(C). See Soler, 275 F.3d at 152 (noting that "the fact
the statute does not speak to the defendant's state of mind
undercuts the [] argument" that a foreseeability test should be
imposed). While we left open the possibility that such a
requirement might apply in a case involving "liability of one
coconspirator for the acts of others," we made plain that "[w]hen
the defendant's own conduct has caused the harm," strict liability
applies. Id.
The statute sub judice in Soler differs in no material
respect from section 841(b)(1)(B). Thus, the rationale of Soler is
controlling here. Moreover, because the enhancement was imposed on
the basis of the appellant's own conduct and the government
introduced evidence tracing the death-causing heroin to that
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conduct, he is strictly liable. See id. at 152; see also United
States v. McIntosh, 236 F.3d 968, 971-73 (5th Cir. 2001) (rejecting
an argument identical to the appellant's on facts similar to those
before us).
The appellant makes a half-hearted effort to bring to
bear two other arguments (neither of which was raised in the
district court). First, he muses that the encouragement of his
prior counsel to plead guilty may have amounted to ineffective
assistance of counsel. Second, he refers briefly to "newly
discovered" autopsy evidence — but offers no explanation as to why
this evidence was not readily available, in the exercise of due
diligence, prior to the time he entered his guilty plea.
These allusions need not detain us. The appellant does
not support them with either case law or developed argumentation.
We see no reason, therefore, to deviate from the well-settled
appellate rule that "issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed
waived." United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990).3
We need go no further. For the reasons elucidated above,
we reject the appellant's asseverational array.
3
Waiver aside, we note that garden-variety claims of
ineffective assistance of counsel, not raised in the district
court, generally are not considered on direct review of a criminal
conviction. See United States v. Mala, 7 F.3d 1058, 1063 (1st Cir.
1993).
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Affirmed.
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