USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1403
UNITED STATES OF AMERICA,
Appellee,
v.
MARK A. FERGUSON,
Defendant, Appellant.
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ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya Zobel, U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Lynch, Circuit Judge,
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and Schwarzer,* Senior District Judge.
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Roderick B. O'Connor, for defendant, appellant Mark A.
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Ferguson.
Thomas G. Frongillo, Assistant United States Attorney, for
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the United States.
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July 20, 1995
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*Of the Northern District of California, sitting by
designation.
LYNCH, Circuit Judge. On June 24, 1993, a federal
LYNCH, Circuit Judge.
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grand jury returned a 38-count indictment charging appellant
Mark A. Ferguson and twelve others with violations of the
drug laws. The indictment charged Ferguson with (1)
conspiracy to distribute cocaine and cocaine base in
violation of 21 U.S.C. 846 (Count 2), (2) possession of
cocaine with intent to distribute in violation of 21 U.S.C.
841(a)(1) (Count 4); (3) distribution of cocaine base in
violation of 21 U.S.C. 841(a)(1) (Counts 7, 8, 14, 17); (4)
distribution of cocaine in violation of 21 U.S.C. 841(a)(1)
(Count 11); (5) attempted distribution of heroin in violation
of 21 U.S.C. 846 (Count 12); and (6) unlawful use of a
communication facility in violation of 21 U.S.C. 843(b)
(Counts 34, 35, and 37). Ferguson was also charged with
aiding and abetting in violation of 18 U.S.C. 2 on all of
the substantive drug counts (Counts 4, 7, 8, 11, 12, 14 and
17).
On December 3, 1993, Ferguson pled guilty to Counts
2, 7, 8, 11, 12, 14, 17, 34, 35, and 37 of the indictment
pursuant to a written plea agreement with the United States.
Count 4 was dismissed. On April 7, 1994, the district court
sentenced Ferguson to 120 months imprisonment and five years
supervised release on Counts 2, 8, 14, and 17, to be served
concurrently; 120 months imprisonment on Counts 7, 11, and
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12, to be served concurrently with one another and with the
sentences for Counts 2, 8, 14, and 17; and 48 months
imprisonment on Counts 34, 35, and 37, to be served
concurrently with one another and with the sentences for
Counts 2, 8, 14, and 17. The district court also ordered
Ferguson to pay a $500 special assessment, $50 for each
count. On April 12, 1994, Ferguson appealed, seeking to
withdraw his guilty plea.
Because Ferguson seeks to withdraw his plea
following the imposition of his sentence, he must show that
the plea proceedings were marred by "'a fundamental defect
which inherently results in a complete miscarriage of
justice' or 'an omission inconsistent with the rudimentary
demands of fair procedure.'" Fed. R. Crim. P. 32(d) [now
Rule 32(e)] advisory committee's note to 1983 amendments
(quoting Hill v. United States, 368 U.S. 424 (1962)); see
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also United States v. Japa, 994 F.2d 899, 902 (1st Cir. 1993)
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(stating that the benchmark for setting aside a plea post-
sentencing is "a fundamental defect or a miscarriage of
justice"). Ferguson's appeal does not meet this standard.
Ferguson argues that his plea should be set aside
because the district court failed to take adequate steps at
his plea hearing to determine that his guilty plea was
knowingly and voluntarily made. Specifically, Ferguson
contends that the district court violated Federal Rule of
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Criminal Procedure 11(c)(1) by failing to explain the charges
to him and to determine that he understood the charges. Rule
11(c)(1) requires, among other things, that the court
accepting the plea "address the defendant personally in open
court and inform the defendant of, and determine that the
defendant understands . . . (1) the nature of the charges to
which the plea is offered . . . ." The record shows that
Ferguson's plea neither was a miscarriage of justice nor
resulted from procedures inconsistent with the rudimentary
demands of fair procedure.1
The record of the plea hearing demonstrates that
the district court took a number of steps to ensure that the
concerns underlying Rule 11(c) (particularly those underlying
11(c)(1)) were addressed. The district court asked Ferguson
his age (25) and educational background (11th grade).
Ferguson informed the court that he had read the indictment,
had discussed it with his attorney, and that his attorney had
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1. Ferguson's argument on appeal is limited to the question
of whether the district court complied with Rule 11(c)(1).
He does not argue that the district court failed to comply
with the requirements of Rule 11(d) when it failed to ask
Ferguson at the plea hearing whether his willingness to plead
guilty resulted from discussions with the attorney for the
government. See Fed. R. Crim. P. 11(d)("The court shall also
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inquire as to whether the defendant's willingness to plead
guilty or nolo contendere results from prior discussions
between the attorney for the government and the defendant or
the defendant's attorney."). Any argument based on Rule
11(d), therefore, has been waived. See, e.g., Pignons S.A.
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de Mecanique v. Polaroid Corp., 701 F.2d 1, 3 (1st Cir. 1983)
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(arguments not presented in initial brief on appeal are
waived).
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explained to him what it meant. The district court also
asked Ferguson whether he understood that he had been charged
with crimes similar to the ones that the district court had
described earlier in the hearing to Yancy Calhoun, a
codefendant charged under the same counts who pled guilty at
the same hearing. Ferguson, who had been present for the
description of the charges against Calhoun, stated that he
did.2
Further, during the course of the plea hearing, the
district court informed Ferguson of the charges in the
indictment; it informed him of the potential penalties he
faced; it informed him of the rights he would be waiving by
pleading guilty; it ensured that the factual basis of each
offense was presented in open court in Ferguson's presence;
it repeatedly asked him if he understood; and it asked
questions of Ferguson about each of the substantive offenses
to determine whether he understood what conduct the
government alleged formed the basis of his criminal
conduct.3 When Ferguson asked to be allowed to consult with
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2. Ferguson had also executed a written plea agreement.
Indeed, he had executed the agreement after refusing to
execute an earlier one proffered by the government because he
did not like one of its clauses.
3. The district court asked Ferguson specifically about all
of the counts to which he was pleading guilty, except one --
Count 2, the conspiracy charge. Although the district court
did not ask Ferguson specifically about Count 2, the nature
of the conspiracy charge was explained thoroughly to
codefendant Patrick Culbreath in Ferguson's presence, and
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his mother, he was permitted to do so. Finally, the court
specifically asked Ferguson whether he was entering his plea
voluntarily and Ferguson replied that he was.
On appeal, Ferguson appears to refer to only four
counts, Counts 8, 12, 14, and 17, as being problematic.
Ferguson points out that during the plea hearing, he denied
some of the factual foundations of these counts and exhibited
reluctance to admit that he knew that drugs were involved in
the transactions underlying those counts. To be sure, some
of Ferguson's responses to the court's questions about his
involvement in Counts 8, 12, 14 and 17 show some confusion on
his part over the precise requirements for the offenses. But
when Ferguson gave such responses, the district court made
additional inquiries of Ferguson, asking him what he
understood his role to have been in the offense. And when
questioned on these counts, Ferguson often admitted to facts
sufficient to uphold the charges and, more importantly,
exhibited a basic understanding of the conduct which the
government alleged was criminal.4 The court's detailed
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Ferguson does not claim on appeal that such a procedure was
inadequate to apprise him of the nature of that charge.
4. Count 8 was based on a July 16, 1992 drug transaction at
the Brigham and Women's Hospital at which Ferguson was
present. Although at first Ferguson denied knowing that a
drug sale was occurring, upon further questioning from the
court, he admitted to the court that he entered the
undercover officer's vehicle and told him that the persons
delivering the cocaine would "be there." Count 12 was based
on a September 15, 1992 attempted sale of heroin at the New
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inquiry on these counts supports the conclusion that Ferguson
understood the nature of the charges against him on these
counts. See United States v. Pellerito, 878 F.2d 1535, 1542
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(1st Cir. 1989) (a searching Rule 11 inquiry was "a
circumstance of some importance" in showing that the district
court properly determined that the defendant understood the
nature of the charges to which he was pleading guilty).
Indeed, Ferguson's claim that he did not understand
the nature of these charges is seriously undercut by his
clear admission at the plea hearing of his guilt on Count 7,
a distribution charge under 21 U.S.C. 841(a)(1) arising
from a transaction in which Ferguson delivered cocaine to a
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England Medical Center. As to this count, the government
stated that Ferguson had delivered to an undercover officer
three bricks of what was supposed to have been heroin and was
later determined to be procaine, a cutting agent. Although
Ferguson initially denied his involvement in the transaction,
Ferguson eventually agreed with the government as to
everything it stated regarding the transaction during the
plea hearing except its claim that he had been the person who
physically delivered the bricks to the undercover officer.
He admitted being involved in the transaction and that he
believed at the time of the transaction that it involved
drugs.
Count 14 involved an October 29, 1992 drug
transaction at a Farmer's Market on River Street in Boston at
which Ferguson was present. Again, although Ferguson
initially indicated that he was unaware that a drug
transaction was occurring when he was at the Farmer's Market,
he later stated that while he was at the Farmer's Market lot
in his car he "surmised" that the transaction involved drugs.
Finally, Count 17 involved a February 4, 1993 drug
transaction at a Mobil gas station in Mattapan that Ferguson
aided. As Ferguson notes in his brief, he admitted at the
plea hearing to delivering a message to one of the principals
that the transaction would go forward on a certain date.
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co-conspirator's house to have it cooked into crack.5
Ferguson concedes on appeal that he understood the nature of
the charge contained in Count 7. Counts 8 and 14, which,
like Count 7, were each charges of distribution of cocaine
base in violation of 21 U.S.C. 841(a)(1), involved conduct
identical in nature to that charged in Count 7, and simply
involved acts occurring on different dates involving the same
basic actions. Similarly, Count 12, while styled as an
"attempt" because of the chemical composition of the
substance distributed, was also essentially a distribution
charge.6 Under these circumstances, Ferguson "should
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5. The government has noted that because of this admission,
Ferguson's appeal, even if successful, will have no effect on
his term of imprisonment because Ferguson was sentenced to a
concurrent 120 months of imprisonment on Count 7. This fact
does not mean that this appeal fails to present a live
controversy, however. The other counts apparently impose
longer periods of supervised release than Count 7 (five years
for Counts 2, 8, 14, and 17, as compared to three years for
Count 7) and each count increased the amount of the
assessment ($50 per count). Moreover, Ferguson may face
collateral consequences for his convictions on the additional
counts. Cf. Benton v. Maryland, 395 U.S. 784, 787-91 (1969)
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(the existence of concurrent sentences does not bar
consideration of challenges to multiple convictions because
there may be collateral consequences to the multiple
convictions). Thus, there is enough at stake in this appeal
to have us decide whether Ferguson may properly withdraw his
plea as to the other counts.
6. Ferguson's involvement in Count 17 was presented on an
aiding and abetting theory. Whether or not Ferguson fully
understood the subtleties of aiding and abetting law, at the
hearing he acknowledged a basic understanding that he was
being charged with facilitating the offense when he stated
that he told the undercover officer that the drug transaction
of February 4 was "on" for that night.
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reasonably have . . . understood," United States v. Cotal-
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Crespo, 47 F.3d 1, 4 (1st Cir. 1995), the nature of the
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charges to which he was pleading guilty on Counts 8, 12, and
14.
Although the defendant's understanding of the
nature of the charges to which he is pleading is a "core
concern" of Rule 11, see Cotal-Crespo, 47 F.3d at 4, in the
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absence of a total failure to address this concern, the plea
cannot be set aside unless the irregularities in the plea
proceeding affect the defendant's "substantial rights." Fed.
R. Crim. P. 11(h) ("Any variance from the procedures required
by this rule which does not affect substantial rights shall
be disregarded."). Ferguson has not articulated how the
district court's plea proceedings affected his substantial
rights. He does not argue that he pled guilty to crimes he
did not commit. He did not object to the presentence report,
which established a factual basis for the plea. Cf. United
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States v. Zorrilla, 982 F.2d 28, 30 (1st Cir. 1992) (district
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court's failure to determine factual basis for the plea was
harmless error under Rule 11(h) where the presentence report
and probable cause hearing revealed that appellant's conduct
satisfied the elements of the crime charged), cert. denied,
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113 S. Ct. 1665 (1993). Nor does Ferguson suggest that if
the court had conducted a further inquiry into his
understanding of the nature of the offense, he would not have
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pled guilty. See id. at 31 ("As appellant has suffered no
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concrete prejudice other than entering a plea he now regrets,
we cannot set his plea aside.").
Given that Ferguson has not shown a sufficient
deviation from the Rule 11 requirements to overcome Rule
11(h), it follows that he has not met his burden under Rule
32(e) of showing a "'fundamental defect which inherently
results in a complete miscarriage of justice' or 'an omission
inconsistent with the rudimentary demands of fair
procedure.'" Fed. R. Crim. P. 32(d) [now Rule 32(e)]
advisory committee notes to 1983 amendments. Ferguson is not
entitled to withdraw his guilty plea.
For the foregoing reasons, Ferguson's judgment of
conviction is affirmed.
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