UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1967
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE R. LOPEZ-PINEDA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
Torruella, Chief Judge,
Coffin, Senior Circuit Judge,
and Cyr, Circuit Judge.
Rafael D. Castro Lang for appellant.
Antonio R. Baz n, Assistant United States Attorney, with whom
Guillermo Gil, United States Attorney, and Jos A. Quiles-Espinosa,
Senior Litigation Counsel, were on brief for appellee.
June 6, 1995
CYR, Circuit Judge. After Jose R. Lopez Pineda ("Lop-
CYR, Circuit Judge.
ez") was convicted and sentenced on one count of possessing
cocaine with intent to distribute, see 21 U.S.C. 841(a)(1), he
initiated the instant appeal seeking to set aside his guilty plea
based on defects in the change-of-plea colloquy conducted by the
district court. We affirm the judgment of conviction and sen-
tence.
I
I
BACKGROUND
BACKGROUND
On February 25, 1994, Lopez, a crew member aboard the
M/V Meridian, attempted to import into Puerto Rico approximately
one kilogram of cocaine, and a quantity of Rohypnol, a drug not
approved by the Food and Drug Administration ("FDA"). Following
his arrest and indictment on three federal charges, see 21 U.S.C.
321(p) (introduction of non-FDA approved drug into the United
States); 841(a)(1),(b)(1)(B) (possession of one kilogram of
cocaine, with intent to distribute); 952(a) (importation of
cocaine into the United States), Lopez entered into a plea
agreement whereby he would plead guilty to the section 841
violation and the government would dismiss the two remaining
charges. The plea agreement explicitly stated that the cocaine
charge under section 841 carried "a minimum statutory term of
five (5) years of imprisonment . . . with a term of supervised
release of at least four (4) years" (emphasis in original).
Prior to the Rule 11 change-of-plea hearing before the
district court, Lopez also completed in his own hand and on
2
the advice of counsel an extensive Spanish-language question-
naire which inquired, inter alia, whether he knew and understood
the mandatory minimum term of imprisonment and the nature and
effect of the term of supervised release to which his guilty plea
would expose him. Lopez responded by correctly indicating that
the mandatory minimum term of imprisonment on the cocaine charge
was five years and, further, that he understood the nature and
effect of supervised release.
During the Rule 11 hearing, the district court ad-
dressed Lopez in open court and inquired, among other things,
into whether he understood that he was waiving his constitutional
right to trial by jury, with all its appurtenant rights and
privileges; whether he had been coerced into accepting the plea
agreement; whether he understood that the plea agreement, if
approved, would not be binding upon the court and that he would
not be allowed to withdraw his guilty plea in light of the
sentence imposed; his knowledge of the maximum sentence permitted
under section 841(b)(1)(B); his competency to plead; the factual
grounds for his guilty plea; and his general understanding of the
effects of the sentencing guidelines.
Lopez further confirmed that the plea agreement had
been explained to him by court-appointed counsel before Lopez
signed it and that Lopez had completed the elaborate district
court questionnaire, with the assistance of counsel, shortly
before appearing in court for the Rule 11 hearing. The district
court neglected, nonetheless, to inquire explicitly whether Lopez
3
understood that he faced a mandatory minimum five-year prison
sentence and a mandatory minimum four-year term of supervised
release, as fully explained in the plea agreement and less
comprehensively related in the district court questionnaire.
II
II
DISCUSSION
DISCUSSION
Lopez correctly contends that Federal Rule of Criminal
Procedure 11 mandates that the district court inquire direct-
ly, personally and in open court whether the defendant knows
and understands any mandatory minimum prison sentence and term of
supervised release attendant upon a conviction based on a plea.
See Fed. R. Crim. P. 11(c) ("Before accepting a plea of guilty .
. . the court must address the defendant personally in open court
and inform the defendant of, and determine that the defendant
understands . . . the mandatory minimum penalty provided by law .
. . including the effect of any special parole or supervised
release term.") (emphasis added). Nevertheless, Lopez has not
demonstrated that the clear failure of the district court to
comply with Rule 11 warrants vacation of the guilty plea in the
circumstances presented.
Rule 11 was designed to ensure that defendants who
enter guilty pleas do so with full "'understanding of the nature
of the charge and the consequences of [their] plea.'" United
States v. Cotal-Crespo, 47 F.3d 1, 4 (1st Cir. 1995) (quoting
McCarthy v. United States, 394 U.S. 459, 467 (1969)), petition
for cert. filed, (U.S. May 1, 1995) (No. 94-9076-CFY). Compli-
4
ance with Rule 11 enables the district court to arrive at its
"own determination of a guilty plea's voluntariness . . . [and]
also facilitates that determination in any subsequent post-
conviction proceeding based upon a claim that the plea was
involuntary." United States v. Medina-Silverio, 30 F.3d 1, 3
(1st Cir. 1994) (quoting McCarthy, 394 U.S. at 467).
A total failure to conduct the required colloquy in
open court may invalidate the plea, even though the defendant
acknowledges in open court that he was provided beforehand
through written documents and the assistance of counsel with
all pertinent information contemplated by Rule 11. Id. at 3-4
(absent requisite oral inquiry by district court, responses to
written questionnaire containing relevant Rule 11 inquiries are
insufficient). "Where a district court neither conducts a direct
personal interrogation, nor advises the defendant of his rights,
all substantially as required under Rule 11, there can be no
sufficient basis for finding that the guilty plea was voluntary,
intelligent or otherwise valid." Id. (emphasis added).
On the other hand, where the district court conducts an
otherwise adequate Rule 11 colloquy but inadvertently omits
material subject matter contemplated by Rule 11, we may review
the record, including the change-of-plea and sentencing tran-
scripts, with a view to whether the omission was harmless. See
Cotal-Crespo, 47 F.3d at 5-7 (holding "harmless" a district
court's failure to inform defendant of right to remain silent and
confront witnesses, and of potential exposure to perjury prosecu-
5
tion for giving false testimony); see also Fed. R. Crim. P. 11(h)
("Any variance from the procedures required by this rule which
does not affect substantial rights shall be disregarded."). As
the omissions Lopez points to in the present case clearly do not
approximate a total lack of compliance with Rule 11, cf. Medina-
Silverio, 30 F.3d at 3-4, we consider whether the failure person-
ally to inform the defendant of the mandatory minimum prison
sentence and term of supervised release disabled the district
court from determining that the core Rule 11 requirements essen-
tial to a valid guilty plea were met: 1) absence of coercion; 2)
understanding of the charges; and 3) knowledge of the consequenc-
es of the guilty plea. See Cotal-Crespo, 47 F.3d at 4. We
discern no disabling infirmity in the core Rule 11 findings made
by the district court.1
Lopez neither claims that his guilty plea was coerced,
nor that he lacked understanding of the charges. Instead, he
alleges that he did not understand the sentencing consequences of
his guilty plea, because counsel below informed him that he would
be sentenced under the guidelines rather than in accordance with
1Lopez urges us to enlarge upon the required Rule 11 collo-
quy by directing district courts to inform defendants that a
mandatory minimum sentence prescribed by statute overrides a
lesser guideline sentencing range. We decline, for two reasons.
First, a recent guideline amendment precludes any such blanket
directive. See note 3 infra. Second, the presentence report,
which contains the proposed guideline sentencing calculation, is
not necessarily disclosed to the district court until after the
guilty plea has been approved. See Fed. R. Crim. P. 32(b)(3)
("The report must not be submitted to the court or its contents
disclosed to anyone unless the defendant has consented in writ-
ing, has pleaded guilty or nolo contendere, or has been found
guilty.").
6
the mandatory minimum sentence prescribed by statute, contrary to
the explicit terms of the plea agreement signed by Lopez and the
handwritten responses he gave to the district court question-
naire.2
The instant Rule 11 claim may be assessed against
essentially the same standards governing change-of-plea requests,
see Cotal-Crespo, 47 F.3d at 8, by evaluating
(1) the plausibility of the reasons prompting
the requested change of plea; (2) the timing
of the defendant's motion; (3) the existence
or nonexistence of an assertion of innocence;
and (4) whether, when viewed in light of
emergent circumstances, the defendant's plea
appropriately may be characterized as invol-
untary, in derogation of the requirements im-
posed by Fed. R. Crim. P. 11, or otherwise
legally suspect.
United States v. Raineri, 42 F.3d 36, 41 (1st Cir. 1994), peti-
tion for cert. filed, (U.S. May 3, 1995) (No. 94-9121-CFY).
First, the purported reasons for requesting vacation of
the plea are suspect. We are not persuaded by the bare allega-
tion that former counsel after advising Lopez to enter into
the plea agreement and assisting him in completing the detailed
district court questionnaire directly informed him, contrary
to both those documents, that something less than the minimum
prison sentence mandated by statute would be imposed. Nor did
Lopez take issue with the clear statement in the presentence
report that the district court must impose a sentence not less
than the mandatory minimum prescribed in 21 U.S.C. 841(b)(1-
2Lopez is represented by different counsel on appeal.
7
)(B). Indeed, at sentencing, Lopez's counsel urged the district
court "in [its] mercy to give [Lopez] the minimum mandatory of 60
months." Cf. United States v. Japa, 994 F.2d 899, 903-94 (1st
Cir. 1993) (district court's failure to inquire into requisite
criminal intent, combined with prosecutor's failure to describe
evidence of intent in relating factual basis for guilty plea,
rendered harmless by absence of objection to presentence report
on grounds of lack of intent).
Second, the belated attempt to set the plea aside on
appeal, rather than before sentencing, substantially heightens
Lopez's burden. See Fed R. Crim. P. 32(e) (Once sentence has
been imposed, "a plea may be set aside only on direct appeal or
by motion under 28 U.S.C. 2255."). In order to prevail on a
post-sentencing Rule 11 challenge, the defendant must come
forward with sufficient evidence to demonstrate "a fundamental
defect which inherently results in a complete miscarriage of
justice," Hill v. United States, 368 U.S. 424, 428 (1962), or "an
omission inconsistent with the rudimentary demands of fair proce-
dure." Japa, 994 F.2d at 902 (quoting Fed. R. Crim. P. 32(c)
advisory committee's notes (1983)).
Third, Lopez does not assert legal innocence. Rather,
he explicitly urges vacation of the challenged sentence in order
to enable him to plead guilty anew, which might permit him to be
sentenced under the more generous regimen prescribed in new
8
U.S.S.G. 5C1.2.3
Finally, the belated manner in which the Rule 11
challenge has been presented denied the government any opportuni-
ty to develop the district court record with a view to whether or
not Lopez was misinformed by counsel below regarding the sentenc-
ing consequences of his guilty plea, as Lopez alleges in direct
contravention of the plea agreement he signed, and the district
court questionnaire he completed, with the advice and assistance
of the same attorney. Cf. Raineri, 42 F.3d at 42 (although
district court misinformed defendant as to maximum penalty,
defendant failed to indicate that he had ever been informed he
would receive a lower sentence than that actually imposed).
The absence of a sufficiently developed factual record
relating to whether former counsel misled Lopez concerning the
sentencing consequences of his guilty plea precludes reliable
review on direct appeal. Consequently, the attempt to insinuate
an ineffective assistance claim on direct appeal must be reject-
ed, see United States v. Tuesta-Toro, 29 F.3d 771, 776 (1st Cir.
1994) (holding that undeveloped, fact-bound ineffective assis-
tance claim must be asserted on collateral review), cert. denied,
115 S. Ct. 947 (1995), without prejudice to its presentment on
3Lopez was sentenced before the promulgation of U.S.S.G.
5C1.2, which provides that sentences for qualifying first-time
drug offenders are to be determined under the sentencing guide-
lines even though the guideline sentence is lower than the
mandatory minimum sentence prescribed by statute. See U.S.S.G.
5C1.2. U.S.S.G. 5C1.2 is not retroactive, however, since the
amendment promulgating it is not listed in U.S.S.G. 1B1.10.
See DeSouza v. United States, 995 F.2d 323, 324 (1st Cir. 1993)
(amendmentsnot listed in 1B1.10 not given retroactive effect).
9
collateral review under 28 U.S.C. 2255. Id.
10
For the foregoing reasons, the judgment of conviction
and sentence is affirmed.
Affirmed.
Affirmed
11