United States v. Mercedes Leon

United States Court of Appeals
For the First Circuit

No. 18-1600

UNITED STATES OF AMERICA,

Appellee,

v.

JOSÉ MERCEDES LEON,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. John J. McConnell, Jr., U.S. District Judge]

Before

Lynch, Selya, and Boudin,
Circuit Judges.

Lisa Aidlin on brief for appellant.
Richard B. Myrus, Acting United States Attorney, and Donald
C. Lockhart, Assistant U.S. Attorney, on brief for appellee.

April 8, 2019
 BOUDIN, Circuit Judge. On May 18, 2017, a Rhode Island

federal grand jury charged José Mercedes Leon ("Mercedes"), a

citizen of the Dominican Republic, with one count of illegal

reentry of an alien who had previously been removed from the United

States, 8 U.S.C. § 1326(a). The indictment charged Mercedes with

having "knowingly entered and [been] found in the District of Rhode

Island" on or about May 2, 2017, without having obtained the

consent of the Attorney General of the United States to return

notwithstanding his prior order of removal.

Mercedes had previously been ordered removed from the

United States on three separate occasions and also had past

convictions and corresponding prison sentences for drug-related

offenses, felony assault with a machete, trespassing, and

resisting arrest. His May 2, 2017, arrest by Immigration and

Customs Enforcement ("ICE") authorities immediately followed his

release from state prison in Rhode Island, on the heels of a

conviction and six-month prison sentence for heroin possession;

ICE officials compared his fingerprints to those found on prior

warrants for his removal and discovered a match.

In due course, Mercedes entered a straight guilty plea

to the section 1326 charge. Fed. R. Crim. P. 11. At the change-

of-plea colloquy, the district court confirmed that Mercedes was

competent to enter a plea of guilty, that he was "voluntarily

deciding to change [his] plea to guilty," that he understood it

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was likely he would be deported again, and that he understood that

he was admitting to the facts stated by the government as to his

offense conduct. The court accepted the plea and sentenced

Mercedes to 29 months' imprisonment and three years of supervised

release, although the guideline sentencing range was 46-57 months.

Mercedes now argues on appeal that the district court

erred in accepting his guilty plea because when he returned to the

United States in 2011, he was forced into crossing the southern

border and acting as a drug mule by Los Zetas gang, which had

kidnapped him in Guatemala; therefore, he claims that he did not

"voluntarily" re-enter the United States and that his guilty plea

therefore lacked an adequate basis in fact. See, e.g., United

States v. Negrón-Narváez, 403 F.3d 33, 37 (1st Cir. 2005).

Relatedly, he argues that the district court violated Rule 11 by

not ascertaining with certainty at the change-of-plea colloquy

whether Mercedes understood the elements of the crime charged,

Fed. R. Crim. P. 11(b)(1)(G), namely, that in order to be

convicted, he must have voluntarily re-entered the United States.

In deciding whether to accept a plea under Rule 11, a

district court must "ascertain whether the record permits a

conclusion that the plea has a rational basis in fact." Negrón-

Narváez, 403 F.3d at 37; see also United States v. Delgado-

Hernández, 420 F.3d 16, 27 (1st Cir. 2005). The district judge

must also ensure that the plea was voluntary, knowing, and

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intelligent, and that the defendant understands the nature of the

charge to which he is pleading guilty. Fed. R. Crim. P.

11(b)(1)(G) & (b)(2); see also United States v. Díaz-Concepción,

860 F.3d 32, 36 (1st Cir. 2017).

Mercedes concedes that he did not raise his claims of

error below in connection with his change of plea, and therefore

our review is for plain error. United States v. Urbina-Robles,

817 F.3d 838, 842 (1st Cir. 2016). There was no error here, much

less plain error, in the district court's decision to accept the

plea or in its determination that Mercedes's guilty plea was

knowing and intelligent.

As to the "factual basis for the plea," Fed. R. Crim. P.

11(b)(3), there was plainly "an admission, colloquy, proffer, or

some other basis for thinking that the defendant [was] at least

arguably guilty," United States v. Gandia-Maysonet, 227 F.3d 1, 6

(1st Cir. 2000). Mercedes was a serial violator of the immigration

laws and even if he was coerced in 2011 to cross the southern

border--a matter on which we take no view--he was hardly forced

into remaining in the United States for six years or forced into

entering Rhode Island, a non-border state, where he was then

"found" in 2017. See United States v. DeLeon, 444 F.3d 41, 52

(1st Cir. 2006) ("Where an alien is indicted under the 'found in'

prong" of section 1326, "the alien is deemed to have committed the

offense at the moment he was 'found.'").

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 With respect to Mercedes' second argument, the

transcript of Mercedes' change-of-plea hearing is clear on its

face that the district judge walked Mercedes through the

consequences of pleading guilty, made sure that he had discussed

these issues with his attorney, and confirmed that he was knowingly

and voluntarily pleading guilty. Mercedes's argument to the

contrary rests on the same flawed premise he advances above--

namely, that his story about his 2011 kidnapping somehow renders

his having entered and been found in Rhode Island in 2017

involuntary--and is thus easily dismissed.

Finally, the argument that Mercedes reentered

involuntarily in 2011 was not raised until the sentencing phase

and was urged upon the court by defense counsel as a mitigating

factor justifying a downward departure or variance from the

guidelines. The district court was never called upon by defense

counsel to vacate the plea based on this allegation, nor would the

court have had any reason to do so in light of the actual

allegations underpinning the indictment and guilty plea.

Affirmed.

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