United States v. Perez Carrera

United States Court of Appeals
For the First Circuit

No. 98-1788

UNITED STATES OF AMERICA,

Appellee,

v.

JOSE R. PEREZ-CARRERA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin and Campbell, Senior Circuit Judges.

Paul M. Koziell, by appointment of the court, on brief for
appellant.
Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco
and Nelson Pérez-Sosa, Assistant United States Attorneys, on
brief for appellee.

March 16, 2001
 SELYA, Circuit Judge. On February 21, 1996, a federal

grand jury indicted defendant-appellant José R. Pérez-Carrera

(along with two codefendants). The indictment contained six

counts, viz., aiding and abetting a bank robbery, death

resulting, in violation of 18 U.S.C. §§ 2 and 2113(a), (d), (e)

(count 1); aiding and abetting the use and carriage of automatic

weapons during and in relation to a crime of violence, in

violation of 18 U.S.C. §§ 2 and 924(c)(1), (3) (count 2); aiding

and abetting the taking of a motor vehicle by force and

violence, intending to cause death or serious bodily harm and

resulting in death, in violation of 18 U.S.C. §§ 2 and 2119(3)

(count 3); aiding and abetting the use and carriage of firearms

during a carjacking, in violation of 18 U.S.C. §§ 2 and

924(c)(1), (3) (count 4); aiding and abetting the possession or

receipt of firearms shipped or transported in interstate or

foreign commerce, in violation of 18 U.S.C. §§ 2, 922(g), and

924(a)(2) (count 5); and aiding and abetting the possession of

two semi-automatic assault rifles in violation of 18 U.S.C. §§

2, 922(v)(1), and 924(a)(1)(B) (count 6). The appellant

originally pleaded not guilty across the board but subsequently

moved to revise his plea.

The district court convened a change-of-plea hearing

on April 9, 1997. During that session, the appellant withdrew

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his original plea and entered a plea of guilty to counts 1, 2,

3, 4, and 6 pursuant to a written agreement with the government

(the Plea Agreement). After conducting an extensive colloquy,

see Fed. R. Crim. P. 11, the district court accepted the changed

plea and scheduled disposition for August 15, 1997.

After several delays, the court convened the

disposition hearing on May 27, 1998. At that time, the court

dismissed count 5 of the indictment and sentenced the appellant

to concurrent 293-month incarcerative terms on counts 1 and 3;

a similarly concurrent 60-month term on count 6; a 120-month

term on count 2, consecutive to the sentences imposed on counts

1, 3, and 6; and a 240-month term on count 4, consecutive to all

the other sentences. Facing the grim prospect of 653 months in

prison, Pérez-Carrera filed this timely appeal.

Proceedings before this court have brought to light a

series of bevues. The Plea Agreement erroneously recited that

count 2 exposed the appellant to "[a] mandatory sentence of five

years." But because count 2 charged the appellant with

violating 18 U.S.C. § 924(c)(1) by the use and carriage of

automatic weapons, the offense carried a mandatory sentence of

ten years under 18 U.S.C. § 924(c)(1)(B). By like token, the

Plea Agreement mistakenly recited that the appellant faced "[a]

statutory maximum sentence of TEN (10) years imprisonment" on

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count 6. But because that count charged the appellant with

aiding and abetting in the unlawful possession of two semi-

automatic assault weapons, as that term is defined in 18 U.S.C.

§ 921(a)(30), the offense carried a maximum penalty of five

years. See 18 U.S.C. §§ 922(v)(1), 924(a)(1)(B). These errors

were repeated in the change-of-plea colloquy. During that

exchange, the district court told the appellant that, if he pled

guilty, he would be exposed to a mandatory sentence of five

years on count 2 and a maximum sentence of ten years on count 6.

These statements were inaccurate.1

By the time of sentencing, the probation department had

filed a presentence report that recited the correct sentencing

parameters for counts 2 and 6, and the court sentenced the

appellant within those parameters. No one spotted the

inconsistencies between the representations originally made to

the appellant and the sentence actually imposed. Despite the

lack of any contemporaneous objection, however, we may review

the sentence for plain error. United States v. Gandia-Maysonet,

227 F.3d 1, 5 (1st Cir. 2000).2 We warm to that task, mindful

1 The Plea Agreement accurately described the penalties
associated with the other counts of conviction, and the district
court gave the appellant correct advice anent those penalties in
the change-of-plea colloquy.
2The test for plain error is multi-dimensional. See United
States v. Olano, 507 U.S. 725, 732 (1993) (explaining required

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that part of the plain error calculus requires an appellant to

show that an error was not harmless, i.e., that it affected his

substantial rights. See supra note 2; see also Fed. R. Crim. P.

11(h).

As to count 6, the misstatements made by the government

and the district court obviously were harmless (and, therefore,

not a proper ground for setting aside the appellant's plea or

sentence). Although the prosecutor and the court misinformed

the appellant as to the maximum penalty for count 6, the

sentence actually imposed was not only within legal limits, but

also was substantially less than the mistaken maximum. Under

those circumstances, there was no prejudice. 3 E.g., United

States v. Camacho, 233 F.3d 1308, 1319 (11th Cir. 2000),

petition for cert. filed (U.S. Feb. 20, 2001) (No. 00-8593);

United States v. McDonald, 121 F.3d 7, 11 (1st Cir. 1997).

Count 2 presents a different problem. The government

and the district court incorrectly advised the appellant that

this count carried a mandatory five-year penalty. The appellant

showing as encompassing (1) an error (2) that is obvious and (3)
that affects the defendant's substantial rights, (4) provided
that the error, if uncorrected, also may affect the fairness,
integrity, or public repute of judicial proceedings); Gandia-
Maysonet, 227 F.3d at 5-6 (same).
3
To cinch the harmless-error inquiry, the sentence imposed
on count 6 was less than, yet concurrent with, the untainted
sentences validly imposed on counts 1 and 3.

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pleaded guilty based on that information. The court nonetheless

sentenced him to ten years in prison. In light of the

representations made to the appellant in connection with his

guilty plea, this sentence cannot stand.

To its credit, the government concedes that, under

these circumstances, the imposition of a ten-year sentence on

count 2 violates Rule 11(c)(1) and is not harmless within the

contemplation of Rule 11(h). In view of this concession, we

think that the error is easily corrected. After all, the

district court did inform the appellant that his plea to count

2 would result in the imposition of a mandatory sentence of five

years. Since the United States concedes the error and informs

us that it has no objection to the lesser sentence, there is no

need to set aside the appellant's plea to this count. Rather,

we instruct the district court, on remand, to modify the

sentence imposed by reducing the incarcerative term under count

2 to five years. See Fed. R. Crim. P. 43(c)(4); United States

v. Moree, 928 F.2d 654, 655-56 (5th Cir. 1991).

We are cognizant of the appellant's claim that, had he

been aware of the errors discussed above, he would not have

entered a guilty plea at all. Appellant's Br. at 10. This

claim, however, is made in wholly conclusory terms. We have

reviewed the record with care and find no basis for suspecting

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that the misinformation about the terms of imprisonment

available in respect to counts 2 and 6 deprived the appellant of

a full understanding of the consequences of his actions or

otherwise influenced his decision to change his plea. After

all, counts 1 and 3 — each of which carried a maximum term of

life imprisonment — were the centerpieces of the indictment, and

it is surpassingly difficult to believe that, having decided to

bite the bullet and plead to those grave charges, a more

accurate description of the penalties associated with counts 2

and 6 would have made a dispositive difference.

We add two observations relating to different subjects.

The first deals with a pro se brief filed by the appellant. We

have carefully reviewed that submission (which dwells on the

government's refusal to move for a downward departure at

sentencing pursuant to USSG §5K1.1) and find it wholly lacking

in merit. See, e.g., Wade v. United States, 504 U.S. 181, 185-

86 (1992) (holding that a defendant must make substantial

showing of improper motive to force review of the prosecutor's

refusal to seek a "substantial assistance" downward departure);

United States v. Alegría, 192 F.3d 179, 183 (1st Cir. 1999)

(similar); United States v. Amparo, 961 F.2d 288, 293 (1st Cir.

1992) (noting that wholly conclusory allegations cannot overcome

the government motion requirement).

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 Our second observation relates to yet another pro se

filing. While this appeal was pending, the appellant served a

pro se motion suggesting that his appointed appellate counsel

had failed to raise various defenses and was, therefore,

ineffective.4 By separate order, we agreed to treat this motion

as a supplemental pro se brief.

We have considered this submission. We think that it

falls within the ambit of our oft-stated rule "that fact-

specific claims of ineffective assistance cannot make their

debut on direct review of criminal convictions." United States

v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993) (collecting cases).

Given the need for factfinding — a task that we, as an appellate

court, are neither equipped nor inclined to undertake — that

rule applies here. Consequently, we dismiss the appellant's

ineffective assistance claim, without prejudice to his right to

assert it in the district court by way of a petition for post-

conviction relief under 28 U.S.C. § 2255.

We need go no further. Despite the unfortunate errors

that occurred in the lower court, we see no manifest injustice

and, thus, no compelling reason for setting aside the

4
The appellant apparently faults his counsel for neglecting
to pursue sundry theories of prosecutorial misconduct or to
expose misrepresentations supposedly made by his trial counsel.
These arguments depend almost exclusively on facts that are not
evident from the existing record.

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appellant's conviction or allowing him to withdraw his guilty

plea. Since the only cognizable defect in his sentence is

easily corrected, we remand the case to the district court for

the entry of a modified sentence in regard to count 2 and, as

modified, uphold the judgment below.

It is so ordered.

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