United States Court of Appeals
For the First Circuit
No. 19-1572
UNITED STATES OF AMERICA,
Appellee,
v.
DALNOVIS DELAROSA ARIAS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Thompson, Boudin, and Kayatta,
Circuit Judges.
Robert C. Andrews on brief for appellant.
Andrew E. Lelling, United States Attorney, and Donald C.
Lockhart, Assistant United States Attorney, on brief for appellee.
November 9, 2020
BOUDIN, Circuit Judge. Dalnovis Delarosa Arias pled
guilty to possession with intent to distribute heroin, 21 U.S.C.
§ 841, and conspiracy to possess with intent to distribute heroin,
21 U.S.C. § 846. Delarosa Arias has appealed, asking this court
to set aside his guilty plea to the conspiracy charge.
At his plea hearing, Delarosa Arias admitted that he had
conspired with another person, but expressly denied that Minerva
Ruiz, named as a co-conspirator in the indictment, was involved in
the conspiracy. The following exchange ensued:
THE COURT: All right. So let me read the
charge in the indictment, and I'm going to
deal with what he just told me. So do you
plead guilty from in [sic] around June, 2017,
and continuing through August 24, 2017, in
Lawrence, Charlestown, and elsewhere in the
District of Massachusetts, that you, Dalnovis
Delarosa Arias, and another person, not the
cooperator, did knowingly and intentionally
combine, conspire, confederate, and agree with
each other, and with persons known and unknown
to the grand jury, to possess with intent to
distribute heroin . . . ? Do you plead guilty
knowingly, freely, and voluntarily to
conspiracy with intent to distribute heroin?
THE DEFENDANT: Yes.
THE COURT: And, as I understand it, the
disagreement here is who you were conspiring
with, that you were conspiring with someone in
Texas and maybe somebody else but not with
Minerva [Ruiz]. Is that right?
THE DEFENDANT: Yes.
THE COURT: Is that right?
THE DEFENDANT: Yes, but not in Texas.
THE COURT: Well, where is the person?
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THE DEFENDANT: In the Dominican Republic.
Based on this colloquy, the district court accepted
Delarosa Arias' plea to the conspiracy charge. He received a ten-
year sentence.
On appeal, Delarosa Arias seeks to set aside his
conspiracy conviction, arguing that the district court failed to
"determine that there is a factual basis for the plea" as required
by Federal Rule of Criminal Procedure 11(b)(3). Delarosa Arias
claims that "the facts to which he was willing to agree only
supported a conspiracy that was not charged in the indictment,"
since the indictment specifically named Ruiz as his co-
conspirator.
Because Delarosa Arias' counsel did not raise this
objection below, it is reviewed for plain error. United States v.
Smith, 511 F.3d 77, 85 (1st Cir. 2007). However, plainness is
beside the point because we find no error.
At his plea hearing, Delarosa Arias admitted to
participating in a conspiracy that involved at least one other
person. That admission alone provided a "reasoned basis" to
believe that Delarosa Arias was guilty of conspiracy. United
States v. Matos-Quiñones, 456 F.3d 14, 21 (1st Cir. 2006); see also
United States v. Penagarciano-Soler, 911 F.2d 833, 840 n.5 (1st
Cir. 1990) ("It is settled law that 'the identity of the other
members of the conspiracy is not needed, inasmuch as one person
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can be convicted of conspiring with persons whose names are
unknown.'") (quoting Rogers v. United States, 340 U.S. 367, 375
(1951)). Delarosa Arias claims that because he did not admit that
Ruiz was involved in the conspiracy, his plea lacked a factual
basis. But whether Ruiz was involved is irrelevant: he pled guilty
to conspiracy, not "conspiracy with Ruiz." See United States v.
Gaccione, No. 19-1680, 2020 WL 5869462, at *5 (1st Cir. Oct. 2,
2020). That is enough.
Delarosa Arias' only further argument is that the
district court's decision to accept his plea on the basis that he
had admitted to conspiring with someone other than Ruiz was an
impermissible variance. "A variance occurs when the crime charged
remains unaltered, but the evidence adduced at trial proves
different facts than those alleged in the indictment." United
States v. Mangual-Santiago, 562 F.3d 411, 421 (1st Cir. 2009)
(quoting United States v. Yelaun, 541 F.3d 415, 419 (1st Cir.
2008)). Even if the variance argument applies in the context of
a guilty plea, see Gaccione, 2020 WL 5869462 at *4, a "variance is
grounds for reversal only if it is prejudicial," Mangual-Santiago,
562 F.3d at 421.
Delarosa Arias cannot show that the district court's
acceptance of his plea prejudiced him. He argues that when the
district court accepted his plea to the conspiracy charge despite
his unwillingness to admit Ruiz's involvement, it made him
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ineligible for a "safety valve" under the United States Sentencing
Guidelines. While the crime Delarosa Arias pled to carries a ten-
year mandatory minimum sentence, the safety valve would have
allowed the district court to impose a sentence below the mandatory
minimum. To qualify for the safety valve, Delarosa Arias would
have had to "truthfully provide[] to the Government all information
and evidence [he had] concerning the offense or offenses that were
part of the same course of conduct or of a common scheme or plan."
U.S.S.G. § 5C1.2(a)(5).
No action by the district court precluded him from
fulfilling this requirement. In fact, he did negotiate with the
prosecution over his safety valve eligibility up until the
afternoon of sentencing. That these negotiations were
unsuccessful does not mean that he was ineligible for the safety
valve due to the district court's acceptance of his plea.
Affirmed.
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