United States Court of Appeals
For the First Circuit
No. 12-1738
UNITED STATES OF AMERICA,
Appellee,
v.
DOMINGO RAMOS-MEJÍA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Torruella, Selya and Lipez,
Circuit Judges.
Alejandra Bird López on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Juan Carlos Reyes-Ramos, Assistant United States
Attorney, on brief for appellee.
July 1, 2013
SELYA, Circuit Judge. Defendant-appellant Domingo Ramos-
Mejía asseverates that he did not understand the criminal intent
required as an element of the crime to which he pleaded and that
the district court accepted his guilty plea to that charge without
an adequate factual basis. For these reasons, he urges us to
vitiate his guilty plea. After careful consideration, we reject
the appellant's asseverational array.
The travel of the case is easily traced. A federal grand
jury sitting in the District of Puerto Rico indicted the appellant
on a charge of conspiracy to possess with intent to distribute 5
kilograms or more of cocaine. See 21 U.S.C. §§ 841(a)(1), 846. He
initially maintained his innocence, but later entered into a plea
agreement. In pursuance of that agreement, he pleaded guilty to
conspiracy to possess with intent to distribute at least 3.5 but
less than 5 kilograms of cocaine (a quantity below that originally
charged in the indictment).
The district court accepted the plea and subsequently
imposed a 78-month incarcerative sentence. This timely appeal
ensued.
Before turning to the meat of this appeal, we pause to
note that the plea agreement contained a waiver-of-appeal
provision. This provision purposed to foreclose any appeal as long
as the district court accepted the plea and sentenced the appellant
in accordance with the plea agreement's terms and recommendations.
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But even though the district court sentenced the
appellant within the parameters of the plea agreement, the waiver-
of-appeal provision does not pretermit this appeal. Where, as
here, an appeal challenges the validity of the plea itself, a
waiver-of-appeal provision lacks force. See United States v.
Chambers, 710 F.3d 23, 27 (1st Cir. 2013). After all, if a plea is
invalid, the plea agreement (and, thus, the waiver provision
contained within it) disintegrates.
We begin our discussion of the merits with the
abecedarian proposition that a defendant has no absolute right to
withdraw his guilty plea. See United States v. Mercedes Mercedes,
428 F.3d 355, 359 (1st Cir. 2005). When, as in this case, a
defendant seeks for the first time to withdraw his plea in the
court of appeals, his request will be granted only if he can show
that the district court's acceptance of the plea was plainly
erroneous. See United States v. Davila, No. 12-167, 2013 WL
2631064, at *7-8 (June 13, 2013). Plain error review imposes a
heavy burden on the appellant, who must demonstrate: "(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).
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Against this backdrop, we turn to the appellant's
assertion that his plea was not knowing, intelligent, and
voluntary. Federal Rule of Criminal Procedure 11(b)(1)(G) requires
that a district court, before accepting a guilty plea, "must inform
the defendant of, and determine that the defendant understands,
. . . the nature of each charge to which the defendant is
pleading." This rule functions "to ensure that a defendant who
pleads guilty does so with full comprehension of the specific
attributes of the charge and the possible consequences of the
plea." United States v. McDonald, 121 F.3d 7, 11 (1st Cir. 1997).
The charge to which the appellant pleaded guilty involved
conspiracy to possess with intent to distribute drugs. Proof of
such a charge entails proof of the existence of the charged
conspiracy, the defendant's knowledge of it, and his voluntary
participation in it. See United States v. Nelson-Rodriguez, 319
F.3d 12, 27-28 (1st Cir. 2003). A conspiracy charge requires, at
a minimum, the same degree of criminal intent as the underlying
substantive offense. Ingram v. United States, 360 U.S. 672, 678
(1959). It follows that, for guilt to attach in a drug conspiracy
case, a defendant must have conspired knowingly to possess the
drugs with the intent to distribute them. See United States v.
Echeverri, 982 F.2d 675, 677-79 (1st Cir. 1993).
The appellant asserts that, when he entered his plea, he
was unaware that the government had to prove his knowledge of a
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conspiracy to distribute drugs (as opposed to some other
contraband) and his specific intent to effectuate the object of the
conspiracy (distributing drugs). He suggests that the district
court kept him in the dark by failing sufficiently to inform him
about these matters, preferring instead to read the charge from the
indictment and then inquire whether that was what he had done. The
appellant posits that, by charting such a course, the court
violated Rule 11(b)(1)(G).1
In this case, the change-of-plea colloquy, though not a
textbook model, was adequate. In order to satisfy Rule 11, the
district court need not employ a "specific script, a set of magic
words, or even certain types of inquiries." United States v. Ward,
518 F.3d 75, 83 (1st Cir. 2008). Here, the court assured itself of
the defendant's competence to plead, had the prosecutor summarize
both the plea agreement and the government's available proof, and
obtained the appellant's acknowledgment that those summaries were
accurate. The appellant then confirmed to the court his desire
"[t]o plead guilty [to] what [he was] being accused of."
The court made certain that the appellant had read the
indictment and understood both the charge and the terms of the plea
agreement. The court also verified that the appellant had reviewed
these materials with his attorney. Finally, the court read aloud
1
In support, the appellant also invokes the Due Process
Clause, U.S. Const. amend. V. But this reference adds nothing of
substance to his claim and, so, we do not discuss it further.
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the charge limned in the indictment, and the appellant agreed that
he had knowingly participated in that activity.
This, we think, was enough. Rule 11(b)(1)(G) "does not
require the court to explain the technical intricacies of the
charges in the indictment." United States v. Cruz-Rivera, 357 F.3d
10, 13 (1st Cir. 2004). Under ordinary circumstances, it is
sufficient in a plea colloquy for a district court to "ascertain
that a defendant is aware of the nature of the charge against him
by reading the charge in the indictment to the defendant and
obtaining his competent acknowledgment that he understands the
charge." United States v. Delgado-Hernández, 420 F.3d 16, 26 (1st
Cir. 2005); see United States v. Corporán-Cuevas, 244 F.3d 199, 203
(1st Cir. 2001).
This is not to say that merely reading the formal charge
will be sufficient in every case. The process through which the
court ensures the defendant's understanding of the charge may vary
depending on the attributes of the particular defendant, the nature
of the specific offense, and the complexity of the attendant
circumstances. See Corporán-Cuevas, 244 F.3d at 203; see also Fed.
R. Crim. P. 11 advisory committee's note. One size does not fit
all.
Here, however, the environmental factors were not
extraordinary. This is a run-of-the-mine case, involving a mature
defendant with a history of gainful employment. The appellant was
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facing only a single charge — and that charge was not a complicated
one. Moreover, the circumstances attendant to the charged crime
were straightforward. Given these considerations, we believe that
a reading of the charge sufficed. See, e.g., United States v.
Ramirez-Benitez, 292 F.3d 22, 27 (1st Cir. 2002).
If more were needed — and we doubt that it is — the
record in this case contains other indicia of the appellant's
appreciation of the elements of the charged crime. The plea
agreement contained a factual narrative that described what the
government said it could prove. It further explained that the
appellant was pleading guilty to "knowingly and intentionally
combining, conspiring, and agreeing with others to . . . possess
with intent to distribute" cocaine.2 The word "cocaine" was
underscored and in bold, making pellucid that the charged
conspiracy was one trafficking in drugs, not other goods. The text
of the plea agreement is relevant to this appeal inasmuch as the
agreement explicitly memorialized the appellant's review of it with
his attorney, his satisfaction with his attorney's representation,
the absence of any coercion, and his "full[] understand[ing]" of
the matters described. Absent good cause — and none is present
2
Varying from the language of the indictment, the plea
agreement contained a separate stipulation as to drug quantity.
The stipulation provided that, "for purposes of this plea agreement
[] this defendant shall be accountable for conspiring to possess
with the intent to distribute at least, 3.5 kilograms, but less
than 5 kilograms of cocaine."
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here — a defendant ought to be bound by the statements that he
makes to the district court. See Chambers, 710 F.3d at 29; see
also United States v. Pellerito, 878 F.2d 1535, 1539 (1st Cir.
1989) ("We will not permit a defendant to turn his back on his own
representations to the court merely because it would suit his
convenience to do so.").
This brings us to the appellant's second claim of error.
He contends that the record fails to establish an adequate factual
basis for the mens rea element of the conspiracy charge. In his
view, the record does not evince either his knowledge that drugs
were involved in the conspiracy or his intent to distribute them.
The government's proffered facts, he says, establish only that he
was seen in the vicinity of a meeting and, three months later, in
a vehicle loaded with fake drugs.
This claim of error implicates Federal Rule of Criminal
Procedure 11(b)(3), which requires that, "[b]efore entering
judgment on a guilty plea, the court must determine that there is
a factual basis for the plea." This safeguard "serves to ensure
that the defendant's conduct actually corresponds to the charges
lodged against him." United States v. Jiminez, 498 F.3d 82, 86
(1st Cir. 2007).
The necessary showing, however, is fairly modest. To
satisfy the "factual basis" requirement, the evidence need not
conclusively demonstrate guilt beyond a reasonable doubt. See
-8-
United States v. Pimentel, 539 F.3d 26, 29 (1st Cir. 2008).
Rather, the government need only show a rational basis in fact for
the defendant's guilt. See id.; Delgado-Hernández, 420 F.3d at 27.
In other words, there must be some "basis for thinking that the
defendant is at least arguably guilty." Delgado-Hernández, 420
F.3d at 27 (internal quotation marks omitted).
To meet the "factual basis" standard, the government is
not required to support every element of the charged crime by
direct evidence. See United States v. Marrero-Rivera, 124 F.3d
342, 352 (1st Cir. 1997). A smoking gun is useful, but not
essential.
Of particular pertinence for present purposes, a court
may infer "[t]he factual predicate for the requisite mens rea
. . . from all the evidence alluded to at the Rule 11 hearing."
Id.; see Delgado-Hernández, 420 F.3d at 31. "[A]s 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." Jiminez, 498 F.3d at 87.
In this instance, the facts proffered by the government
at the change-of-plea hearing (and acquiesced in by the appellant)
revealed that the appellant and two accomplices went to a shopping
center parking lot on or about March 1, 2011. While there, one of
the appellant's companions, Rubén Darío Páez-Fontana (Páez), met
with two other individuals to discuss a potential drug shipment.
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One of these individuals was an undercover Drug Enforcement
Administration (DEA) agent; the other was a confidential source
(CS) working with the DEA. The undercover agent and the CS were
part of a government "sting" operation. During the meeting, Páez
agreed to pay the undercover agent for his help in bringing in by
sea substantial quantities of cocaine and provided sea coordinates
for the exchange point.
After some intervening communications, Páez met again
with the CS. Páez told the CS that, after the drugs were retrieved
at sea and brought to Puerto Rico, he would provide a truck for
land transport. The CS would then stow the drugs in the truck and
return the truck to Páez's henchmen.
The retrieval took place as planned. The CS, accompanied
by undercover law enforcement officers, picked up a load of cocaine
and heroin at the sea coordinates that Páez had provided. Shortly
after the retrievers reached land, the appellant and another of
Páez's associates, Marcelino Medina-Vásquez (Medina), met the CS
with a truck. The CS and his confederates loaded the truck but,
unbeknownst to the appellant and Medina, used ersatz drugs, not the
real drugs that had been retrieved at sea. After the truck was
loaded, the appellant and Medina drove it away, while Páez and a
fourth accomplice followed in another vehicle. In short order, the
authorities stopped both vehicles and arrested all four men.
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These facts were more than adequate to allow the district
court to conclude that the appellant was at least arguably guilty
of participation in the charged conspiracy. Participation in a
drug-trafficking conspiracy can be proved through circumstantial
evidence. See United States v. Bergodere, 40 F.3d 512, 518 (1st
Cir. 1994); Echeverri, 982 F.2d at 677-79. Here, a rational
factfinder could conclude that the appellant was privy to the drug-
trafficking scheme. Drug traffickers do not normally bring
innocent parties to clandestine meetings set up to arrange for drug
deliveries, see United States v. Ortiz, 966 F.2d 707, 711-12 (1st
Cir. 1992); see also Echeverri, 982 F.2d at 677-78, and a
factfinder could reasonably infer that the appellant's presence at
the parking lot meeting was culpable. By like token, a factfinder
could reasonably infer that the appellant's role in delivering the
truck for loading — and leaving in it after the loading had been
completed — was carried out with knowledge of the plot. The fact
that only fake drugs were in the truck at the time of the arrest
does not diminish the force of this inference. See United States
v. Sánchez-Berríos, 424 F.3d 65, 77-78 (1st Cir. 2005).
To say more on this point would be to paint the lily. We
conclude, without serious question, that the version of events
proffered at the change-of-plea hearing was ample to ground
inferences that the appellant knew that the conspiracy was
arranging to import drugs and that he intended to facilitate the
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delivery by his role in transporting drugs. The bottom line, then,
is that there was a suitable factual basis for the appellant's
guilty plea.
We need go no further. For the reasons elucidated above,
we discern no error, plain or otherwise, in the district court's
acceptance of the appellant's tendered guilty plea. The appellant
is not, therefore, entitled to withdraw his plea.
Affirmed.
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