United States v. Delgado-Hernandez

United States Court of Appeals
For the First Circuit

No. 03-2245

UNITED STATES OF AMERICA,

Appellee,

v.

EHRICK F. DELGADO-HERNANDEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before

Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.

Ben T. Clements, with whom Clements & Clements, LLP was on
brief, for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, with whom
H.S. Garcia, United States Attorney, was on brief, for appellee.

August 24, 2005
 LIPEZ, Circuit Judge. Defendant-appellant Ehrick F.

Delgado-Hernández seeks to set aside his guilty plea to the charge

of possession of a firearm in furtherance of a drug-trafficking

offense because of alleged errors in the plea proceedings.

Although the plea proceedings in this case raised some problems,

Delgado has not met his heavy burden of establishing that any

deficiencies in the proceedings below amounted to plain error.

Therefore, we affirm his conviction.1

I.

On April 28, 2003, Delgado pled guilty to one count of

conspiracy to distribute and to possess with intent to distribute

cocaine and heroin in violation of 21 U.S.C. § 846 (Count One), and

one count of possession of a firearm in furtherance of a drug-

trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A) (Count

Two). Pursuant to a plea agreement, Delgado stipulated that the

drug conspiracy in Count One involved three kilograms of cocaine.

Based on that drug quantity, Delgado's leading role in the

conspiracy, his acceptance of responsibility, and his Criminal

History Category (II), the district court sentenced Delgado on July

28, 2003 to 84 months (7 years) of imprisonment for the conspiracy

1
Delgado's appeal was consolidated with that of a co-defendant
for purposes of oral argument. Because the issues raised in the
appeals are unrelated, we have severed the appeals for purposes of
decision. See United States v. Barnes, 244 F.3d 172, 175 n.2 (1st
Cir. 2001). We issue both decisions today. See United States v.
De Los Santos, No. 03-2436 (1st Cir. Aug. 24, 2005).

-2-
conviction and a consecutive term of 60 months (5 years) of

imprisonment for the firearm possession conviction, for a total of

144 months (12 years) of imprisonment. The court also ordered

Delgado to forfeit $111,000 and imposed a 4-year term of supervised

release and a special monetary assessment of $200.

Delgado timely appealed, seeking to vacate his conviction

on the firearm possession charge in Count Two only, on the grounds

that the court (1) misinformed him of the nature of the charge in

violation of Fed. R. Crim. P. 11(b)(1)(G) and his constitutional

right to due process, and (2) entered judgment on his guilty plea

in the absence of a factual basis in violation of Fed. R. Crim. P.

11(b)(3).

II.

A. Requirements of Rule 11

In order to be constitutionally valid, a guilty plea must

be voluntary and intelligent. Bousley v. United States, 523 U.S.

614, 618 (1998). "[A] plea does not qualify as intelligent unless

a criminal defendant first receives 'real notice of the true nature

of the charge against him, the first and most universally

recognized requirement of due process.'" Id. (quoting Smith v.

O'Grady, 312 U.S. 329, 334 (1941)). "[E]nsuring that the defendant

understands the elements of the charges that the prosecution would

have to prove at trial" is also "a 'core concern' of Rule 11."

United States v. Gandia-Maysonet, 227 F.3d 1, 3 (1st Cir. 2000)

-3-
(quoting United States v. Hernandez-Wilson, 186 F.3d 1, 5 (1st Cir.

1999)). Accordingly, Rule 11 requires that a court, before

accepting a guilty plea, "inform the defendant of, and determine

that the defendant understands, . . . (G) the nature of each charge

to which the defendant is pleading." Fed. R. Crim. P. 11(b)(1).2

Furthermore, "because a guilty plea is an admission of

all the elements of a formal criminal charge, it cannot be truly

voluntary unless the defendant possesses an understanding of the

law in relation to the facts." McCarthy v. United States, 394 U.S.

459, 466 (1969). Rule 11 therefore requires a court to "determine

that there is a factual basis for the plea" before entering

judgment. Fed. R. Crim. P. 11(b)(3).3 This additional procedural

requirement "'protect[s] a defendant who is in the position of

pleading voluntarily with an understanding of the nature of the

charge but without realizing that his conduct does not actually

fall within the charge.'" United States v. Ventura-Cruel, 356 F.3d

55, 59-60 (1st Cir. 2003) (quoting Fed. R. Crim. P. 11, advisory

committee's note (1966 amendment)).

2
Former Rule 11(c)(1) was recodified as Rule 11(b)(1)(G) in
December 2002. According to the advisory committee's note to the
2002 amendment, the change "[is] intended to be stylistic only."
3
Former Rule 11(f) was recodified as Rule 11(b)(3) in December
2002. This change "[is] intended to be stylistic only." Fed. R.
Crim. P. 11, advisory committee's note (2002 amendment).

-4-
B. Plain Error Review

"Under ordinary circumstances, we review the district

court's acceptance of a guilty plea for abuse of discretion."

United States v. Negrón-Narváez, 403 F.3d 33, 37 (1st Cir. 2005).

However, because Delgado failed to call the district court's

attention to the alleged errors in the plea proceedings "despite

having had ample opportunity to do so," for example, by seeking to

withdraw his plea prior to sentencing pursuant to Fed. R. Crim. P.

11(d)(2), his claim is subject only to plain error review on direct

appeal. Id. "The defendant's burden under the plain error

standard is a heavy one." United States v. Ramirez-Benitez, 292

F.3d 22, 27 (1st Cir. 2002). In order to prevail on either of his

challenges, Delgado must show "(1) that an error occurred (2) which

was clear or obvious and which not only (3) affected [his]

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).

To demonstrate the requisite effect on his substantial

rights, Delgado must "show a reasonable probability that, but for

the error, he would not have entered the [guilty] plea." United

States v. Dominguez-Benitez, 542 U.S. 74, ___, 124 S. Ct. 2333,

2336 (2004). "A defendant must thus satisfy the judgment of the

reviewing court, informed by the entire record, that the

probability of a different result is sufficient to undermine

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confidence in the outcome of the proceeding." Id. at 2340

(citations and internal quotation marks omitted).

III.

We set forth the procedural backdrop for Delgado's claims

in considerable detail, noting several troubling missteps on the

part of the government that went undetected by the court. While we

ultimately conclude that Delgado has not met his burden of

establishing plain error with respect to either of his claims, the

government's carelessness in making its record in this case

hampered not only our ability to review Delgado's claims on appeal,

but also the district court's ability to evaluate the factual basis

for his guilty plea.

A. The Plea Colloquies

Delgado's change-of-plea hearing took place on April 28,

2003. After determining that Delgado had received a copy of the

charges against him and had "fully discussed those charges and the

case in general with . . . counsel," the court described the drug

conspiracy charge as listed in Count One of the indictment to

Delgado:

[Y]ou have been charged in a superseding
indictment that . . . beginning not later than
December 2000 through on or about December
2001, in the District of Puerto Rico and
elsewhere within the jurisdiction of the
Court, you, together with 14 other co-
defendants, did knowingly, unlawfully and
intentionally, combine, conspire and agree
with one another and with others to the grand
jury known and unknown, to commit an offense

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 defined in Title 21, U.S. Code, Section
841(a)(1), that is, to possess with the intent
to distribute and to distribute more than one
kilogram of heroin, a Schedule I controlled
substance, and more than five kilograms of
cocaine, a Schedule II controlled substance,
in violation of Title 21, U.S. Code, Section
846.

The court then described the firearm possession charge in Count Two

of the indictment:

You have also been charged with Count Two that
states that on diverse occasions from December
2000 through December 2001, in the District of
Puerto Rico and within the jurisdiction of the
court, you, as a defendant, did knowingly
possess a firearm in furtherance of a drug
trafficking crime, to wit: an unlawful
conspiracy to possess and distribute heroin
and cocaine, in violation of Title 21, U.S.
Code, Section 846, and in violation of Title
18, U.S. Code, 924(c)(1)(A).

The court next proceeded to explain to Delgado the nature

of the charges against him:

Now, to be found guilty of this offense if a
trial were to be held, the Government would
have to prove beyond a reasonable doubt that
you unlawfully, willfully, knowingly[,] and
intentionally combined, conspired, and agreed
with the other co-defendants and with others
to the grand jury known and unknown to commit
the offense that I have previously described
as well as the count concerning the possession
of the firearm in connection with the drug
trafficking crime.
And, of course, then there are the
forfeiture allegations.
Do you understand what I have just
explained?

Delgado responded, "Yes, sir."

-7-
 The government then summarized its evidence in support of

the drug conspiracy charge in Count One.4 The government stated

that if Delgado had chosen to face trial on that charge, it would

have produced evidence in the form of:

the testimony of witnesses and most notably
recordings of calls intercepted pursuant to
the authorized Title [III] wiretap on
[Delgado's] telephones that would have shown
that beginning not later than December of
2000, [Delgado] agreed with others to smuggle
quantities of cocaine and heroin into Puerto
Rico.

The government further stated that it would introduce evidence that

"on several occasions [Delgado] sought to acquire kilogram

quantities of cocaine in Puerto Rico" and "negotiated to purchase

heroin and cocaine from persons outside the United States in

outfitted go-fast boats [speed boats] to smuggle cocaine and heroin

into Puerto Rico." The government concluded by stating that it

would introduce evidence that "this defendant and his co-

conspirators distributed these narcotics for sale to other persons

for further sale to consumers in Puerto Rico and New York."

Despite its recitation of facts in support of the drug

conspiracy charge in Count One, the government neglected to present

any facts whatsoever in support of the firearm possession charge in

Count Two. Similarly, although the government's proffer of

4
Delgado does not dispute the factual basis for his guilty
plea to Count One; nor does he appeal his conviction or sentence on
that charge.

-8-
evidence in support of the drug conspiracy charge in Count One

reflected the contents of the statement of facts that Delgado

signed as an attachment to his plea agreement, that statement of

facts contains no description of the factual predicate for the

firearm possession charge in Count Two. Nevertheless, Delgado pled

guilty to both counts in the indictment.

On May 2, 2003, the government acknowledged its error and

moved to hold a supplemental Rule 11 hearing "to ensure that the

defendant acknowledges and admits the factual basis for his plea"

of guilty to the firearm possession charge. In its motion, the

government indicated that it had already presented the evidence

establishing the factual basis for the firearm possession charge

during evidentiary hearings before a magistrate judge on Delgado's

motion to suppress a firearm seized from his rental car when

federal agents executed arrest and search warrants at his apartment

on December 10, 2001. According to the government's motion, the

evidence providing a factual basis for the firearm possession

charge consisted of: (1) the seized firearm and (2) "intercepted

pertinent conspiracy-related telephone conversations in which

[Delgado] spoke of his possession of a firearm." The government

did not attach transcripts or descriptions of the recorded phone

calls to its motion. Instead, the government requested that the

court "take notice of its own record of the evidence presented

during the [suppression] hearings."

-9-
 On June 20, 2003, the court held a supplemental Rule 11

hearing in response to the government's motion of May 2, 2003.

During the supplemental hearing, the government again "invite[d]

the Court's attention to its own records from the [suppression

hearing] in which [intercepted telephone] calls were introduced in

evidence." After explaining the purpose for the supplemental

hearing to Delgado, the court described the firearm possession

charge in Count Two as set forth in the indictment, just as it had

during the first Rule 11 hearing on April 28, 2003. The court

continued: "as counsel for the Government has stated, you know,

there was a motion to suppress that was filed in this case, and I

take judicial notice of the prior record in this case that states

more or less the facts underlying that Count Two." The court did

not further specify which parts of the record it was relying on or

which facts supplied a basis for the charge. It did, however, make

reference later in the hearing to its "adopt[ion of] the

[m]agistrate[] [judge's] version of the facts as stated in his

report and recommendation" on Delgado's suppression motion.

The government then stated that if the case had proceeded

to trial, it would have introduced the evidence it had already

presented during the suppression hearing, namely, the "pistol

[seized] from [Delgado's rental] car outside of his apartment" and

transcripts of intercepted phone calls "in which in coded language

[Delgado] in two of these calls, discussed the possession of the

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firearm in connection with the drug activities." The government

did not elaborate further on the nature or contents of the phone

calls.

Delgado's counsel added only that "when the firearm was

seized from that automobile, Mr. Delgado Hernandez was in his

apartment and not in the automobile. That's, I think, factually

correct." The court then asked Delgado if he "agree[d] with the

Government's version that you just heard with respect to Count

Two." After consulting with counsel, Delgado replied, "Yes, your

Honor." Delgado then pled guilty a second time to the firearm

possession charge in Count Two.

The presentence investigation report that was sent to

Delgado and to the government on June 23, 2003, just after the

supplemental Rule 11 hearing and prior to Delgado's sentencing on

July 28, 2003, does not mention any facts in support of the firearm

possession charge in Count Two.

B. The Suppression Hearings

The suppression hearings that the government and the

district court referred to during the supplemental Rule 11

proceeding, and that the court took judicial notice of, took place

before the magistrate judge on March 9, 2003 and March 26, 2003.

During the suppression proceedings, Delgado argued that the firearm

seized from his rental car was inadmissible in the government's

case-in-chief at trial because he had not validly consented to the

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search of the car after agents arrested him and during the search

of his apartment pursuant to a warrant.

At the hearing on March 26, 2003, a Drug Enforcement

Administration ("DEA") agent testified that, based on cell phone

conversations intercepted during the drug conspiracy investigation

pursuant to a court order, the agents had reason to believe Delgado

possessed a firearm when they executed the search and arrest

warrants. In support of this testimony, the government played

during the hearing four excerpts from recordings of three

intercepted phone conversations between Delgado and others, all of

which were conducted in Spanish. The government referred to the

excerpts as recordings #316, #70, #71, and #572.

Based on his knowledge of the investigation, the DEA

agent testified that Delgado was the person referred to in the

calls as "Frank." The agent identified the person Delgado spoke to

in one of the calls (#316) as the mother of Delgado's former wife,

but did not ascribe any drug-related activity to her. The agent

was not asked to identify any of the speakers in the second set of

call excerpts (#70 and #71). However, in response to questioning

about an apparent reference in the excerpts to a boat, the agent

testified that Delgado's drug-trafficking activity included

"coordinat[ing] possible shipments of narcotics by boat into Puerto

Rico" and "contract[ing] people . . . to get boats for him and to

work for him." Finally, the agent identified the person with whom

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Delgado spoke in the third phone call (#572) as a co-defendant who

worked with Delgado "in distributing drugs here in Puerto Rico."

The transcripts of the suppression hearing contain no indication of

when or in what context a firearm is mentioned in the call

excerpts.

After the excerpts were played, the DEA agent testified

that, during the search of Delgado's apartment, another agent asked

Delgado whether he kept a firearm in a safe in his apartment, and

Delgado replied that he kept a gun in the car. The agent testified

that Delgado then identified the car key to the agents, who

subsequently found a semi-automatic pistol in Delgado's rental car,

which was parked outside the apartment. No drugs were seized

during the search of the apartment or the car.

On March 27, 2003, the magistrate judge issued a report

and recommendation to deny Delgado's motion to suppress the

firearm, finding that Delgado had validly consented to the search

of the car. The magistrate judge also noted that, "[b]ased on

information acquired via [court-authorized] intercepts, the agents

believed defendant carried a firearm" (footnote omitted). The

district court adopted the report and recommendation on April 21,

2003.5 Delgado's initial change-of-plea hearing took place one

5
Delgado does not challenge the denial of his motion to
suppress the firearm.

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week later, on April 28, 2003, and the supplemental plea colloquy

was held on June 20, 2003.

The transcript of the suppression hearing indicates that

the government provided English-language translations of the

intercepted phone calls that were played during the hearing to both

Delgado and the magistrate judge. After the calls were played, the

government provided copies of the translations to the court

interpreter for certification.6 The magistrate judge's report and

recommendation, which was issued the next day, on March 27, 2003,

further indicates that "[t]he English language translations of the

[recordings played during the hearing] shall be certified by the

court interpreter and be made part of the record."7 However, the

record on appeal contains no trace of the translations, certified

or uncertified, nor any indication that they were ever made part of

the record below.

6
Delgado raised no objection to the accuracy of the
translations during or after the suppression hearing.
7
"All pleadings and proceedings in the United States District
Court for the District of Puerto Rico shall be conducted in the
English language." 48 U.S.C. § 864. See also D.P.R. R. 10(b)
("All documents not in the English language which are presented to
or filed in this Court, whether as evidence or otherwise, shall be
accompanied at the time of presentation or filing by an English
translation thereof, unless the Court shall otherwise order.")
(formerly D.P.R. R. 108.1, renumbered and approved as final rule
effective April 5, 2004).

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C. Government's Supplementation of the Record During Direct
Appeal

After oral argument in the instant appeal and upon

notification by the district court of the absence of the English-

language translations of the intercepted phone calls from the

record, the government was unable to locate copies of the

translations that had been provided to Delgado, the magistrate

judge, and the court interpreter during the suppression hearing.

Instead, the government moved before the district court on June 13,

2005 to supplement the record with newly translated transcripts of

the intercepted phone calls, which were completed and certified on

June 2, 2005, and to have those transcripts "transmitted

expeditiously to the Court of Appeals." See Fed. R. App. P.

10(e)(2)(B) (district court may supplement the record "before or

after [it] has been forwarded" to the court of appeals). The

district court granted the motion on June 14, 2005,8 and the

translated transcripts have been provided to us.

IV.

A. Nature of the Firearm Possession Charge

We first address Delgado's claim that the district court

committed plain error by misinforming him of the nature of the

firearm possession charge. The statute under which Delgado was

8
On June 30, 2005, this court granted Delgado's motion for
leave to file a response to the government's submission of the
newly translated transcripts that had been transmitted to this
court. We discuss that response below in Part IV.B.

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charged and convicted of firearm possession, 18 U.S.C.

§ 924(c)(1)(A), provides, in relevant part:

[A]ny person who, during and in relation to
any crime of violence or drug trafficking
crime . . . for which the person may be
prosecuted in a court of the United States,
uses or carries a firearm, or who, in
furtherance of any such crime, possesses a
firearm, shall, in addition to the punishment
provided for such crime of violence or drug
trafficking crime--

(i) be sentenced to a term of imprisonment of
not less than 5 years . . . .

(Emphasis added). In order to convict Delgado, the government

would have had to prove at trial (1) that he committed the

underlying drug-trafficking crime, (2) that he knowingly possessed

a firearm, and (3) that he did so in furtherance of the specified

drug-trafficking crime. See United States v. Flecha-Maldonado, 373

F.3d 170, 179 (1st Cir. 2004) (describing "basic elements" of

§ 924(c)(1) violation for using or carrying a firearm during and in

relation to a drug-trafficking crime); see also United States v.

Cruz, 352 F.3d 499, 509 (1st Cir. 2003) ("[G]iven the text of the

statute, merely determining that [a defendant] was in possession of

a [firearm] is not enough to support [a] conviction; we must also

consider whether the weapon was possessed 'in furtherance of . . .

a drug-trafficking crime.'") (quoting § 924(c)(1)(A)) (ellipsis in

original).

During both the initial plea colloquy on April 28, 2003

and the supplemental colloquy on June 20, 2003, the court correctly

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described Count Two of the indictment as charging Delgado with

possession of a firearm "in furtherance of" a drug-trafficking

offense. However, when the court explained to Delgado the elements

the government would have to prove at trial during the initial

colloquy on April 28, 2003, it stated:

Now, to be found guilty of this offense if a
trial were to be held, the Government would
have to prove . . . the count concerning the
possession of the firearm in connection with
the drug trafficking crime.

(Emphasis added.)9 Delgado argues that, far from ensuring that he

understood the elements of the firearm possession charge against

him, the court misstated the requisite nexus between the firearm

possession and the drug-trafficking offense, in violation of Rule

11(b)(1)(G) and his right to due process.

The statutory language prohibiting possession of a

firearm "in furtherance of" the underlying crime was inserted into

§ 924(c)(1) by amendment in 1998. Congress thus "broadened § 924

to sweep in the mere possession" of firearms, in addition to the

use or carrying of firearms, but "only when . . . possessed 'in

furtherance of' the underlying crime." United States v. Castillo,

406 F.3d 806, 812 (7th Cir. 2005). As the House Report on the

9
During the supplemental Rule 11 hearing on June 20, 2003, the
government repeated the court's phrasing by stating that its
evidence in support of a factual basis for the firearm possession
charge included intercepted phone calls "in which in coded language
[Delgado] in two of these calls, discussed the possession of the
firearm in connection with the drug activities" (emphasis added).

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amendment indicates, the "in furtherance of" element of a firearm

possession charge imposes a "slightly higher standard" of liability

than the nexus element corresponding to the different charges of

using or carrying a firearm, which need only occur "during and in

relation to" the underlying crime. H.R. Rep. No. 105-344, at 11

(1997) ("House Report"). To establish the "in furtherance of"

requirement of a firearm possession charge under § 924(c)(1),

[t]he government must clearly show that a
firearm was possessed to advance or promote
the commission of the underlying offense. The
mere presence of a firearm in an area where a
criminal act occurs is not a sufficient basis
for imposing this particular mandatory
sentence. Rather, the government must
illustrate through specific facts, which tie
the defendant to the firearm, that the firearm
was possessed to advance or promote the
criminal activity.

House Report at 12 (emphases added); see also United States v.

Grace, 367 F.3d 29, 35 (1st Cir. 2004) (analyzing "in furtherance

of" element of § 924(c)(1)); accord Castillo, 406 F.3d at 813-14

(interpretation of "in furtherance of" to mean "furthering,

advancing or helping forward" comports with legislative history and

purpose of § 924(c), as well as case law of all circuit courts)

(citation omitted).

Delgado argues that "in furtherance of" means something

distinct from "in connection with" when used to describe the

relationship between possession of a firearm and the commission of

a drug-trafficking crime. We agree that the two phrases have

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different meanings, and that possession of a firearm "in

furtherance of" a drug-trafficking crime suggests something more by

way of nexus between the possession and the crime than the phrase

"in connection with." Compare American Heritage Dictionary of the

English Language 714 (4th ed. 2000) (defining "furtherance" as

"[t]he act of furthering, advancing, or helping forward") with id.

at 390 (defining "connection" as "[a]n association or relationship"

or "[r]eference or relation to something else").10 Rule

11(b)(1)(G), however, "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).

Ordinarily, a court may 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. See, e.g., United

States v. Ramirez-Benitez, 292 F.3d 22, 27 (1st Cir. 2002) (finding

"no error, let alone plain error," where "[t]he terms of the

10
Two sentencing guidelines permit increases in a defendant's
base offense level for possession of a firearm. See U.S.S.G.
§ 2K2.1(b)(5) (authorizing increase for possession of a firearm "in
connection with" certain felony offenses) (emphasis added);
U.S.S.G. § 2D1.1(b)(1) (authorizing increase for drug offenses
"[i]f a dangerous weapon (including a firearm) was possessed"); see
also U.S.S.G. § 2D1.1, cmt. n.3 (U.S.S.G. § 2D1.1(b)(1) "should be
applied if the weapon was present, unless it is clearly improbable
that the weapon was connected with the offense. For example, the
enhancement would not be applied if the defendant, arrested at his
residence, had an unloaded hunting rifle in the closet.") (emphasis
added).

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indictment alone sufficed to put [the defendant] on notice of the

charge to which he was pleading guilty. [The defendant] admitted

he understood the charge and the court found him competent to

plead.").11

Furthermore, we have recently recognized that the meaning

of firearm possession "in furtherance of" a drug-trafficking crime

is fluid. "One might expect with such a common criminal offense

that the legal framework would be well settled, but, as is so often

the case with general statutory terms, it is not." United States

v. Felton, Nos. 02-2414, 03-1089, 03-1441, 2005 U.S. App. LEXIS

15607, at *17 (1st Cir. July 29, 2005). We therefore conclude that

any error in the district court's use of "in connection with" to

mean "in furtherance of," if error there was, was far from obvious.

Cf. Gandia-Maysonet, 227 F.3d at 5 (court erred in

"affirmatively . . . misstat[ing] the scienter element" through

omission of carjacking statute's requirement of intent to kill or

cause bodily harm).

Moreover, even if we were to assume, arguendo, that the

court plainly erred by understating the nature of the nexus

requirement of the firearm possession charge, Delgado has not

11
While Delgado invokes his right to due process, he does not
seriously argue that any error in the court's explanation of the
charge rises to the level of a constitutional violation. In any
event, the record amply demonstrates that "the [plea] colloquy was
constitutionally sufficient to ensure that [Delgado] made an
intelligent plea." See Medina-Roman, 376 F.3d 1, 7 (1st Cir.
2004).

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established that the difference in degree between the two

formulations affected his substantial rights. See Negrón-Narváez,

403 F.3d at 37; see also United States v. Hernández-Albino, 177

F.3d 33, 41 (1st Cir. 1999) (assuming, arguendo, that court's

failure to include "in relation to" in jury instruction for charge

of carrying a firearm "during and in relation to" a drug-

trafficking offense "was error and that the error was plain,"

defendant failed to show prejudice under plain error review).

During the initial colloquy on April 28, 2003, the court asked

Delgado whether he had received a copy of the charges against him,

as well as whether he had discussed those charges with counsel.

Delgado replied unequivocally that he had. Both the indictment and

the plea agreement that Delgado signed correctly use the statutory

"in furtherance of" language to describe the firearm possession

charge.

To be sure, "Rule 11 is disserved" if a defendant chooses

whether to proceed to trial "based on a misappreciation of the

weight -- light or heavy -- of the government's burden as to a

charge and its elements." United States v. Medina-Roman, 376 F.3d

1, 7 (1st Cir. 2004). On one side of the balance, Delgado argues

that the government's circumstantial evidence that he possessed a

firearm "in furtherance of" a drug-trafficking offense was weak.12

12
As we discuss below in Part IV.B., based on our review of the
entire record, we reject Delgado's independent claim that there was
no factual basis for the "in furtherance of" element of the firearm

-21-
On the other side of the balance rest the firearm itself, which was

admissible at trial, and Delgado's admission, supported by the

government's wiretap and other proffered evidence, that he

conspired to smuggle cocaine by speed boat into Puerto Rico for

further distribution and sale. Given the weight of the evidence as

a whole, Delgado fails to demonstrate a reasonable probability

that, although he entered a guilty plea when the charge against him

was explained as possession of a firearm "in connection with" a

drug-trafficking crime, he would have chosen to face trial if the

charge had instead been described as possession of a firearm "in

furtherance of" a drug-trafficking crime. See Dominguez-Benitez,

124 S. Ct. at 2336.

B. Factual Basis for the Firearm Possession Charge

Delgado argues that apart from the court's alleged

misstatement of the "in furtherance of" element of the firearm

possession charge, the court erred by accepting and entering

judgment on his guilty plea in the absence of a sufficient factual

basis, in violation of Rule 11(b)(3). Delgado does not dispute

that he knowingly possessed a firearm, nor that he committed a

drug-trafficking crime by participating in the drug conspiracy to

which he pled guilty in Count One. He challenges only the factual

basis for the "in furtherance of" element of the firearm possession

charge, arguing that the government's proffered evidence during the

possession charge.

-22-
supplemental Rule 11 hearing fails to establish the requisite nexus

between his possession of the firearm and his drug-trafficking

offense.

When determining whether a sufficient factual basis

exists to support a guilty plea, the question before the court "is

not whether a jury would, or even would be likely, to convict: it

is whether there is enough evidence so that the plea has a rational

basis in facts that the defendant concedes or that the government

proffers as supported by credible evidence." Gandia-Maysonet, 227

F.3d at 6. In other words, there must be "an admission, colloquy,

proffer, or some other basis for thinking that the defendant is at

least arguably guilty." Id.

As the government recognized when it sought a

supplemental Rule 11 hearing in its motion of May 2, 2003, no facts

supporting the firearm possession charge (apart from those also

supporting the underlying drug-trafficking charge) were set forth

during the initial plea colloquy on April 28, 2003, and no such

facts appeared in the signed statement of facts attached to

Delgado's plea agreement. When the court held the supplemental

Rule 11 hearing on June 20, 2003, the government stated only, in

conclusory fashion, that Delgado had "discussed the possession of

the firearm in connection with [his] drug activities" during

conspiracy-related phone calls, and referred the court to the

record of the hearings on Delgado's suppression motion.

-23-
 Although the record of those hearings contains evidence

that Delgado possessed a firearm, it does not contain the

government's promised evidence demonstrating the requisite nexus

between Delgado's firearm possession and the drug conspiracy.

While the translated transcripts of the intercepted phone calls

that were played in Spanish during the suppression hearing may very

well have contained relevant facts, those transcripts are not part

of the record of that hearing.

The magistrate judge's tangential observation in his

March 27, 2003 report and recommendation on Delgado's suppression

motion that, "[b]ased on information acquired via [court-

authorized] intercepts, the [DEA] agents believed defendant carried

a firearm" (footnote omitted), establishes only what Delgado does

not dispute: that he possessed a firearm. Although the phone calls

were intercepted pursuant to a court order as part of a drug

conspiracy investigation, the government played the calls during

the suppression hearing only to support the DEA agent's testimony

that the agents had reason to believe Delgado had a firearm when

they elicited his valid consent to their search of his rental car,

not to show that Delgado possessed the firearm for any particular

purpose. Indeed, the transcript of the hearing fails to indicate

when and in what context the phone calls refer to a firearm. The

facts and circumstances of the firearm's seizure from Delgado's

rental car, which was parked outside his apartment, in which no

-24-
drugs or drug activity were detected, also shed no light on the

relationship between the firearm and Delgado's drug-trafficking

activities.

As a result of these gaps in the record, the court's

judicial notice of the suppression motion proceedings -- taken at

the government's urging -- contributes nothing to the factual basis

for the "in furtherance of" element of the firearm possession

charge; there simply were no pertinent facts in the record of which

to take notice. Finally, the presentence investigation report,

from which the district court could have gleaned a factual basis

"[b]efore entering judgment on [Delgado's] guilty plea," Fed. R.

Crim. P. 11(b)(3), contains no facts whatsoever relating to the

firearm possession charge. Under these circumstances, the court

had no way of evaluating the factual basis for Delgado's guilty

plea.

Because the government's proffered evidence lacked a

rational basis in facts for the "in furtherance of" element of the

firearm possession charge, the district court erred in determining

that there was an adequate factual predicate for Delgado's guilty

plea. Although discovery of the error required examination of the

suppression hearing record, we could readily discern the absence of

the facts represented by the government to exist in that record.

It is not enough, however, for a defendant facing plain

error review of his claim to establish that an "error" occurred and

-25-
that it was "plain." He must also show that the error "affected

his substantial rights, and that it seriously impaired the

fairness, integrity, or public reputation of the proceeding."

Negrón-Narváez, 403 F.3d at 37.

"[I]n assessing the effect of Rule 11 error, a reviewing

court must look to the entire record, not to the plea proceedings

alone . . . ." Dominguez-Benitez, 124 S. Ct. at 2338. Based on

our review of the entire record, we conclude that despite the

deficiencies in the government's proffer of evidence, Delgado was

not "in the position of pleading voluntarily with an understanding

of the nature of the charge but without realizing that his conduct

[did] not actually fall within the charge." Ventura-Cruel, 356

F.3d at 59-60 (internal quotation marks omitted). To the contrary,

as we discuss below, the record shows that the government disclosed

evidence to Delgado that was sufficient to support the "in

furtherance of" element. Delgado thus fails to convince us that

there is a "reasonable probability that, but for" the court's

inability to consider that evidence during the plea proceedings,

"he would not have entered the [guilty] plea." Dominguez-Benitez,

124 S. Ct. at 2336.

The record as supplemented after oral argument now

contains certified English translations of the intercepted phone

calls played during the suppression hearing. In his response to

the government's submission of the newly translated transcripts,

-26-
Delgado does not dispute the accuracy of the government's

translations or seek to strike them from the record; rather, he

argues that the government's belatedly filed translations only

serve to confirm its lack of evidence supporting a factual basis

for his guilty plea because the certified translations contain no

explicit reference either to a firearm or to Delgado's drug-

trafficking activities.

We are aided in our evaluation of the likelihood of a

different outcome by one additional document, which we have

excavated from the record without the assistance of the parties.

That document is the government's "Informative Motion Regarding

Anticipated Evidence" as to Delgado and his co-defendants, filed on

April 9, 2003, after the suppression hearings took place before the

magistrate judge on March 9 and 26, 2003 and before the district

court adopted the magistrate judge's report and recommendation to

deny Delgado's motion to suppress on April 21, 2003.13 In its

informative motion, the government stated its intent to prepare and

provide to Delgado a single compact disc containing the three

recorded phone calls purportedly relating to Delgado's possession

of a firearm. The motion then provides brief descriptions of the

13
Because there is no indication in the record that the
government or the district court referred to or relied on the
informative motion to support a factual basis for Delgado's guilty
plea at the time of the supplemental Rule 11 hearing or before
entry of the judgment of conviction, we consider the motion only at
the prejudice stage (rather than the error stage) of our plain
error analysis.

-27-
contents of each phone call. No transcripts, whether in Spanish or

English, are attached to the motion.

Contrary to Delgado's argument, the contents of the

translated transcripts provide a sufficient factual basis for the

"in furtherance of" element of the firearm possession charge to

which Delgado pled guilty. The descriptions in the government's

informative motion further confirm the existence of a factual basis

for Delgado's guilty plea. We set forth the descriptions of the

intercepted phone calls contained in the informative motion,

juxtaposed with the newly filed translations of the calls, below:14

CALL EXCERPT #316 (recorded September 25, 2001):

Informative Motion (April 9, 2003):

Frank tells Chris [Liliana's mother] that he
has to carry a gun because he has hundreds of
problems.

(Alteration in original.)

Certified Translation (June 2, 2005):

[DELGADO]: Because I tell her, 'look, look
I'm going to take care of
everything.' And because she
doesn't understand she starts a
fight with me, look I don't even
want to get near the house, I tell
her. You go ahead and eat, do
whatever you want. I don't even

14
During the supplemental Rule 11 hearing on June 20, 2003, the
government represented that "at least two" of the three intercepted
phone calls played during the suppression hearing supported a
factual basis for Delgado's guilty plea. Because the government
did not identify which two calls it relied upon, we review all
three phone calls.

-28-
 want to come here if you drive me
crazy. I have my own problems.

[UNIDENTIFIED FEMALE]: But why?

[DELGADO]: Personal problems. Because
everything is a fight. I tell her
'look I got this problem'. She
(INAUDIBLE) here, go around here
armed and all that it's not, here
it's not easy. I have to go armed
and she knows that I have certain
problems over here. An [sic]
problems not because I have the
problems, problems because,
because the people let me down.

As we have discussed, during the suppression hearing on March 26,

2003, the DEA agent testified that Delgado was the person referred

to as "Frank" in the intercepted phone calls. The agent also

identified the woman with whom Delgado spoke in call excerpt #316

as the mother of his former wife, but did not attribute any drug-

related activities to her.

CALL EXCERPTS #70 AND #71 (recorded September 15, 2001):

Informative Motion (April 9, 2003):

Frank talks with "Rafa" about [a] problem with
another man and threatens that he will lose
his temper and do it right there.

Certified Translation (June 2, 2005):

[DELGADO]: Oh, I'm over here by Carolina.

[RAFA]: Oh, I saw, I saw, I saw your
little boat over there.

[DELGADO]: Yes, it's outside, yes.

[RAFA]: Yes but I'm calling you because,
you know, there's a guy one of

-29-
 those crazy guys there.
That . . .

[DELGADO]: Oh.

[RAFA]: Without me, without me asking he
started to talk about you, you
know. So you be very careful,
brother.

[DELGADO]: What did the man say?

[RAFA]: Well he says that the little boat
is his. And that you owe him some
money, for a job that he did and
that he went to some place, you
know.

[DELGADO]: The man was talking; he talked a
little too much the fucker.

[. . . ]

[DELGADO]: The little fat guy, did he already
leave your place?

[RAFA]: No, no, he is here (INAUDIBLE) I'm
over here with him, wait a moment.

[DELGADO]: Ujum.

[RAFA]: For you.

[UNIDENTIFIED MALE]: Hello.

[DELGADO]: Hello.

[UNIDENTIFIED MALE]: Yeah buddy.

[DELGADO]: Yes, look.

[UNIDENTIFIED MALE]: Go ahead.

[DELGADO]: Listen, tell that man that, that,
that if he keeps that up I [sic]
going to have to do my own thing,
man. He's going to get it.

-30-
 [UNIDENTIFIED MALE]: Ujum, yes. I'm going to
talk with, I'm going to talk with
the son, I'm going to tell him.

[DELGADO]: (INAUDIBLE) He's making me, he's
compromising me. The, the son
knows what he did. Yes, the son
knows what he did and I could have
taking [sic] it out and done
something.

[. . .]

[UNIDENTIFIED MALE]: Yeah, no, no, brother,
yes. I'm going to deal with that.

[DELGADO]: (INAUDIBLE) If I lose the
(INAUDIBLE) If I lose the table
(PHONETIC) I'm going to do it
right there brother.

The agent did not identify any of the voices in call excerpts #70

and #71 during the suppression hearing, but, apparently in response

to questioning about Delgado's use of boats, testified that Delgado

"coordinated possible shipments of narcotics by boat into Puerto

Rico" and "contracted people . . . to get boats for him and to work

for him."

CALL EXCERPT #572 (recorded October 8, 2001):

Informative Motion (April 9, 2003):

CHUCHO is reluctant to go there because of a
problem he had. Frank tells CHUCHO that he
will get him, and reminds him that he is
"always equipped with his tools"

Certified Translation (June 2, 2005):

[UNIDENTIFIED MALE]: Yes but I don't want to
stop by over there because, come
over here because I can't stop by
there

-31-
 [DELGADO]: Oh.

[UNIDENTIFIED MALE]: (INAUDIBLE) Get in by
(INAUDIBLE) around the back and
I'll take care of you

[DELGADO]: //INTERRUPTS// Is that I'm coming
with, I'm coming with (INAUDIBLE)
all the time, remember.

At the suppression hearing, the DEA agent identified "Chucho" as

one of Delgado's co-defendants, who worked with Delgado "in

distributing drugs here in Puerto Rico."

As Delgado correctly points out, the only translated

phone call excerpt that contains an explicit reference to a weapon

of any kind is Delgado's conversation (#316) with his former wife's

mother, whom the record does not reveal to be involved in Delgado's

drug-trafficking activities. Delgado also notes that although he

refers to "problems" in call excerpt #316, the DEA agent testified

during the suppression hearing that he was not personally aware of

any "problems" that Delgado had in his drug-trafficking activities.

We add that the translated transcript of call excerpt #572

indicates that any reference to Delgado's "tools," as described in

the informative motion, is "inaudible."

While the government's evidence supporting a factual

predicate for the "in furtherance of" element, as contained in the

translations of the phone calls, may not be iron-clad, the factual

basis for a guilty plea need only consist of "enough evidence so

that the plea has a rational basis in facts" -- that is,

-32-
"some . . . basis for thinking that the defendant is at least

arguably guilty," Gandia-Maysonet, 227 F.3d at 6. Further, the

factual basis for certain elements may be inferred from other facts

admitted by the defendant or proffered by the government. See

United States v. Marrero-Rivera, 124 F.3d 342, 352 (1st Cir. 1997)

(inferring "factual predicate for the requisite mens rea" from "all

the evidence alluded to at the Rule 11 hearing"); see also Gandia-

Maysonet, 227 F.3d at 6 (same).

The translated phone call excerpts, whose accuracy

Delgado has never challenged, include references to Delgado's

"problems because, because the people let me down," which require

him to "go around here armed." These references could fairly be

read to support the inference that Delgado possessed the firearm

seized from his rental car in order to resolve problems hindering

the progress of the drug conspiracy in which he was involved. The

excerpts also contain references to people who could reasonably be

inferred to be co-conspirators in a plan to use boats to smuggle

drugs; the references in the translations to people who variously

"talk too much," "compromis[e] me," and are "going to get it,"

further suggest that Delgado possessed the firearm either to

protect himself when "people let [him] down" or to make threats of

force to eliminate potential obstacles to the success of the

conspiracy. These inferences are reinforced by the government's

descriptions in the informative motion, the accuracy of which

-33-
Delgado has also never challenged, which contain explicit

references to a "gun" and Delgado's "tools," again in contexts

supporting the inference that Delgado possessed a firearm to

promote the drug conspiracy in which he participated.

Because the record as a whole contains a "rational basis

in facts" to support Delgado's guilty plea, Gandia-Maysonet, 227

F.3d at 6, Delgado fails to establish prejudice resulting from the

court's inability to evaluate the factual basis proffered by the

government during the proceedings below.

V.

Because Delgado has not met his burden under plain error

review on either of his claims of error in the plea proceedings

below, we affirm Delgado's conviction for possession of a firearm

in furtherance of a drug-trafficking offense.

So ordered.

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