United States Court of Appeals
For the First Circuit
No. 99-2053
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN SAVINON-ACOSTA,
a/k/a Sachi,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Honorable Mary M. Lisi, U.S. District Judge]
Before
Boudin, Circuit Judge
Cyr, Senior Circuit Judge,
and Lipez, Circuit Judge.
Juan Savinon-Acosta on brief pro se.
Juan Ortiz-Lebron, by appointment of the court, for
appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Margaret E. Curran, United States Attorney, and Zechariah
Chafee, Assistant United States Attorney, were on brief for the
United States.
November 21, 2000
BOUDIN, Circuit Judge. This appeal concerns the
validity of a guilty plea challenged for the first time on
appeal. On March 24, 1999, Juan Savinon-Acosta, the defendant-
appellant in this case, was indicted, along with co-defendant
Miguel Piantini, for drug dealing. Both defendants were
charged, in two counts, with possessing cocaine with intent to
distribute it, 21 U.S.C. § 841(a)(1) (1994), and with conspiracy
to distribute cocaine, id. § 846. The background events out of
which the indictment arose are virtually undisputed.
In February 1999, Savinon-Acosta agreed to supply five
kilograms of cocaine to two men who were, unbeknownst to him,
informants for the Drug Enforcement Administration ("DEA").
Later in February, Savinon-Acosta held a meeting with the
informants to fix the delivery date and then had a further
telephone conversation with them during which Savinon-Acosta
raised the price. In early March 1999, the informants spoke by
telephone both with Savinon-Acosta and with Savinon-Acosta's
supplier, Miguel Piantini, and fixed delivery for the next day,
March 3.
On March 3, 1999, Savinon-Acosta, accompanied by
Piantini and the latter's brother, drove to a restaurant in
Pawtucket, Rhode Island, and met with the informants. Piantini
offered the informants an additional five kilograms of cocaine.
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Savinon-Acosta and the two Piantini brothers were then arrested,
and the officers recovered ten kilograms of cocaine from the car
used by the defendants. Savinon-Acosta later admitted that he
had previously constructed a secret compartment in a car for
Miguel Piantini.
On May 19, 1999, Savinon-Acosta agreed with the
government to plead guilty to both counts of the indictment.
The district court held a one-hour plea hearing that began at
11:30 a.m. on May 27, 1999. At the outset, the district court
inquired whether Savinon-Acosta was under the influence of any
drug. He answered that he had taken a prescription sleeping
tranquilizer early that morning. In response to further
questions he said that the medicine did not affect his ability
to understand the proceedings, which he "underst[ood]
perfectly," and that his "head [was] clear." The district court
then had an extensive colloquy with Savinon-Acosta concerning
the plea agreement, sentencing parameters, and the
constitutional rights that Savinon-Acosta would forego by
pleading guilty.
Following the colloquy, the prosecutor summarized the
evidence that the government had available, consistent with the
facts described above (but with more detail). Asked to comment
on the prosecutor's summary of evidence, Savinon-Acosta replied,
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"What the prosecutor said is correct, but there's a certain
point I would like to make . . . ." The points on which
Savinon-Acosta then elaborated were that he had been drawn into
the deal by a cousin, that he thought that five kilograms rather
than ten would be involved, that Miguel Piantini was the
supplier, and that he (Savinon-Acosta) did not "have possession
of" the cocaine and had never had the cocaine "in my hands."
These reservations prompted further questioning by the
district judge. In response, Savinon-Acosta explicitly conceded
that he and Miguel Piantini had an agreement with each other
that they were going to sell the cocaine. He also said
explicitly that he did not otherwise disagree with the
prosecutor's statement. At the close of the plea hearing, the
district court accepted Savinon-Acosta's guilty plea as
voluntary.
On August 27, 1999, the district court held a
sentencing hearing. Savinon-Acosta, through counsel, sought an
adjustment in the guideline calculation on the ground that he
had been only a minor participant. See U.S.S.G. § 3B1.2(b)
(2000). He also sought a downward departure based on a litany
of departure provisions. See U.S.S.G. §§ 5H1.3, 5H1.6, 5K2.0,
5K2.12, 5K2.13 (2000). The district court rejected these
requests, explaining in detail its reasons for ruling that
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Savinon-Acosta was not a minor participant and did not qualify
for a downward departure on any of the grounds presented. The
discussion covers about 20 pages of the sentencing hearing
transcript.
At the close, the district court determined that the
guideline range was 70 to 87 months incarceration, and the court
sentenced Savinon-Acosta to 70 months on each count, the two
sentences to run concurrently. The guideline calculation
included a reduction of three levels for acceptance of
responsibility, see U.S.S.G. § 3E1.1 (2000), and, in determining
the sentence, the district court gave the defendant the benefit
of the safety-valve provision to avoid imposing the ten-year
mandatory minimum sentence that could otherwise have been
applicable because of the quantity of cocaine involved, see 18
U.S.C. § 3553(f) (1994 & Supp. II 1996); U.S.S.G. §§
2D1.1(b)(6), 5C1.2 (2000).
An appeal was filed on defendant's behalf, and, after
new defense counsel was appointed, new counsel submitted an
Anders brief. See Anders v. California, 386 U.S. 738, 744
(1967). The brief identified the minor-participant and
downward-departure issues as matters that counsel had considered
but found not to merit appellate review. At the court's request
the government filed a responsive brief arguing that neither of
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the sentencing claims had merit. Shortly thereafter, Savinon-
Acosta submitted a pro se brief addressed to the same two
issues, asserting that the district court had erred on both
issues.
During this period, this court on initial review of the
appeal encountered the colloquy, already briefly described, in
which defendant mentioned his ingestion of a prescribed
tranquilizer drug on the day of the change of plea. In light of
this court's decision in United States v. Parra-Ibanez, 936 F.2d
588 (1st Cir. 1991), this court asked for and received briefs
from Savinon-Acosta's appointed counsel and from the government
addressing the question whether the plea had been voluntary.
Thereafter, we heard oral argument.
The sentencing claims which Savinon-Acosta has pressed
pro se require little discussion. The district court's finding
that Savinon-Acosta was not a minor participant rested on a
correct understanding of the law. Findings of fact are subject
to review only for clear error, but nothing the district court
said about the facts appears to be error at all. The district
court's ultimate characterization of Savinon-Acosta as having
played more than a minor role was eminently reasonable.
The district court's refusal to depart downward is also
secure. Under well-established precedent in this circuit,
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refusals by the district court to depart, whether upward or
downward, are unreviewable unless the district court has
misunderstood its own legal authority. United States v.
O'Connor, 28 F.3d 218, 222-23 (1st Cir. 1994). We cannot
identify any statement of the district court suggesting that it
misunderstood its legal authority to make downward departures.
Accordingly, there was no error in the sentence.
The guilty plea colloquy relating to drug use raises
an entirely different set of issues. As we recently suggested,
merely technical failures to comply with Rule 11 are often
found harmless, but a finding of harmlessness is less likely
where an error affects a "core concern" of the rule. United
States v. Gandia-Maysonet, 227 F.3d 1, 5-6 (1st Cir. 2000).
Where the error was not called to the district court's
attention, appellate review is governed by the plain error
standard, which "requires not only an error affecting
substantial rights but also a finding by the reviewing court
that the error has 'seriously affect[ed] the fairness,
integrity, or public reputation of judicial proceedings.'" Id.
at 5 (quoting United States v. Olano, 507 U.S. 725, 732 (1993)).
A guilty plea must, of course, be "voluntary." See
Fed. R. Crim. P. 11(d). That the plea be voluntary is not only
a requirement of due process, McCarthy v. United States, 394
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U.S. 459, 466 (1969), but a premise of the defendant's
meaningful participation in the plea process. Common sense,
backed by ample case law, suggests that medication can in some
circumstances affect a defendant's mental state to a degree that
undermines the defendant's ability to enter a voluntary plea.
Accordingly, when the defendant at a Rule 11 proceeding
confirms that he is taking medication, the district court has a
duty to inquire into the defendant's capacity to enter a guilty
plea. See Miranda-Gonzalez v. United States, 181 F.3d 164, 166
(1st Cir. 1999); Parra-Ibanez, 936 F.2d at 595-96. The better
practice would be to identify which drugs a defendant is taking,
how recently they have been taken and in what quantity, and (so
far as possible) the purpose and consequences of the drugs in
question. The critical question is whether the drugs--if they
have a capacity to impair the defendant's ability to plead--have
in fact done so on this occasion. Miranda-Gonzalez, 181 F.3d at
166.
Judges are not pharmacists or doctors. Occasionally
the aid of an expert may be necessary to explain the likely or
actual effects of a particular drug. However, practical
judgments can usually be made. Courts have commonly relied on
the defendant's own assurance (and assurances from counsel) that
the defendant's mind is clear. E.g., Miranda-Gonzalez, 181 F.3d
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at 166-67; United States v. Vaughan, 13 F.3d 1186, 1187 (8th
Cir.), cert. denied, 511 U.S. 1094 (1994). Further, the
defendant's own performance in the course of a colloquy may
confirm, or occasionally undermine, his assurances. Miranda-
Gonzalez, 181 F.3d at 167; Vaughan, 13 F.3d at 1187.
Conversely, a defendant's prior medical history or behavior may
call for heightened vigilance. Parra-Ibanez, 936 F.2d at 591,
595-96.
In this instance, we would have been more comfortable
if the district court had been able to ascertain the name of the
tranquilizer and the quantity, but the district court did ask
for the name of the medicine and Savinon-Acosta said he did not
know. On the other hand, the court did determine the purpose of
the medicine and then asked specifically, "Does that medicine in
any way affect your ability to understand the conversation we're
having this morning?" Savinon-Acosta answered, "No. No. I
understand perfectly." Furthermore, when the district court
then rephrased the question to ask Savinon-Acosta whether his
"head [was] clear this morning," Savinon-Acosta replied, "Yes,
ma'am."
The district court then conducted an extensive colloquy
which bore out the defendant's claim of clearheadedness. At
different points the court asked Savinon-Acosta to explain what
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he understood to be the meaning of what the court had just said
or for his own version of events; and in each case Savinon-
Acosta responded coherently. Even when only yes or no answers
were required, Savinon-Acosta frequently offered more elaborate
responses, similarly coherent. And at no point prior to the
time that this court raised the issue did Savinon-Acosta or his
attorney ever suggest that there was any doubt about his ability
to enter the plea.
Under these circumstances, we are satisfied that there
was no error in accepting the plea, let alone the sort of
miscarriage of justice that would meet the plain error standard.
At first blush, the inquiries made in this case may not look too
different from those in Parra-Ibanez, 936 F.2d at 591-92, where
we remanded for further findings as to the effect of the
medicine; but there the defendant had, prior to the plea,
revealed a history of psychiatric treatment and drug abuse
sufficient to justify a psychiatric evaluation for competency,
id. at 591. Moreover, after the plea, there was additional
concrete evidence of serious emotional disturbance, including
the defendant's attempted suicide and his affliction with
seizures. Id. at 592. By contrast, in Miranda-Gonzalez,
inquiries not dissimilar to those made in this case were
regarded as sufficient. 181 F.3d at 166.
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The rhetoric in the circuit courts is not uniform even
within circuits, but there is certainly no settled rule that a
hearing cannot proceed unless precise names and quantities of
drugs have been identified. On the contrary, in general terms
our own case is not unlike United States v. Dalman, 994 F.2d
537, 538-39 (8th Cir. 1993), where the defendant was unable to
tell the district court the names of the drugs he was taking but
confirmed that he understood what was happening; and his
performance in the colloquy bore out his assertion. The circuit
court upheld the plea, as we do here.
Affirmed.
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United States v. Savinon-Acosta
Court: Court of Appeals for the First Circuit
Date filed: 2000-11-21
Citations: 232 F.3d 265
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