USCA1 Opinion

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,
_________________
Guillermo Gil,
_____________

Assistant United

United States

States Attorney,

with w

Attorney, and Jos

A. Quiles-Espino
______________________

Senior Litigation Counsel, were on brief for appellee.

____________________

June 6, 1995
____________________

CYR, Circuit Judge.

CYR, Circuit Judge.
_____________

ez")

was convicted

cocaine

and

After Jose R. Lopez Pineda

sentenced on

one

count of

with intent to distribute, see 21 U.S.C.

___

("Lop-

possessing

841(a)(1), he

initiated the instant appeal seeking to set aside his guilty plea

based on defects in the change-of-plea colloquy

district

court.

We affirm

the judgment of

conducted by the

conviction and sen-

tence.

I
I

BACKGROUND
BACKGROUND
__________

On February 25, 1994,

M/V Meridian, attempted to

one kilogram of cocaine, and

Lopez, a crew member aboard

the

import into Puerto Rico approximately

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

States);

cocaine,

cocaine

of non-FDA approved drug

841(a)(1),(b)(1)(B) (possession

with intent

into

the

to distribute);

United

whereby

he

violation

and the

government

charges.

The

charge under

five (5)
________

would plead

one kilogram

952(a)

States), Lopez

agreement

of

into the United

(importation of

entered

guilty

would dismiss

to

carried "a

years of imprisonment .

into

the

remaining

the cocaine

minimum statutory

. . with a

a plea

section 841

the two

plea agreement explicitly stated that

section 841

of

term of

term of supervised

release of at least four (4) years" (emphasis in original).

________

Prior to the Rule

district court, Lopez

11 change-of-plea hearing before the

also completed

in

his own hand

and on

the advice of counsel

an extensive Spanish-language question-

naire which inquired, inter alia,

_____ ____

the mandatory

minimum term of

whether he knew and understood

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

was

minimum term of imprisonment on the cocaine charge

five years and, further,

that he understood

the nature and

effect of supervised release.

During

dressed

the Rule

Lopez in

11

hearing, the

open court and

district court

inquired, among

ad-

other things,

into whether he understood that he was waiving his constitutional

right

to

privileges;

agreement;

trial by

jury, with

whether he had been

whether he

approved, would not be

not

all

be allowed

to

its appurtenant

coerced into accepting the plea

understood

that the

plea agreement,

binding upon the court and

withdraw his

rights and

guilty plea

in

if

that he would

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

been

further confirmed

explained to

him by

signed

it and that

court

questionnaire,

that the

plea

court-appointed counsel

Lopez had

completed the

with the

assistance

before appearing in court for the Rule 11

agreement had

before Lopez

elaborate district

of

counsel, shortly

hearing.

The district

court neglected, nonetheless, to inquire explicitly whether Lopez

understood

sentence

that he

and a

release, as

faced a

mandatory minimum
_________ _______

mandatory minimum
_________ _______

fully

explained

in

five-year prison

four-year term

the plea

of supervised

agreement

and

less

comprehensively related in the district court questionnaire.

II
II

DISCUSSION
DISCUSSION
__________

Lopez correctly contends that Federal Rule

Procedure 11 mandates
________

that the district court inquire

ly, personally and in

open court

whether the

of Criminal

direct-

defendant knows

and understands any mandatory minimum prison sentence and term of

supervised release attendant upon

See Fed.
___

a conviction based on

a plea.

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

release term.")

of any

special parole

(emphasis added).

demonstrated that

the

Nevertheless, Lopez

clear failure

comply with Rule 11 warrants

or supervised

of the

has not

district court

vacation of the guilty plea in

to

the

circumstances presented.

Rule

enter

11 was

designed

to ensure

that defendants

who

guilty pleas do so with full "'understanding of the nature

of the charge

and the

States v. Cotal-Crespo,
______
____________

McCarthy v.
________

consequences of [their]

47 F.3d

1, 4 (1st

United States, 394

_____________

for cert. filed,

___ _____ _____

plea.'"

Cir. 1995)

U.S. 459, 467

United
______

(quoting

(1969)), petition
________

(U.S. May 1, 1995) (No. 94-9076-CFY).

Compli-

ance

with Rule 11

enables the district

"own determination of a

court to arrive

guilty plea's voluntariness . .

at its

. [and]

also

facilitates

that

conviction proceeding

involuntary."

determination

based

upon

United States
_____________

in any

a claim

subsequent

that

the

v. Medina-Silverio,
_______________

post-

plea

30 F.3d

was

1, 3

(1st Cir. 1994) (quoting McCarthy, 394 U.S. at 467).

________

open court

total failure

may invalidate

to conduct

the required

the plea, even

though the

acknowledges in

open court

through written

documents and the assistance of

all

that he

was provided

pertinent information contemplated by

(absent requisite

oral inquiry

written questionnaire containing

insufficient).

colloquy in

defendant

beforehand

counsel

Rule 11.

with

Id. at 3-4
___

by district court,

responses to

relevant Rule 11

inquiries are

"Where a district court neither conducts a direct

personal interrogation, nor advises

the defendant of his rights,

all

substantially as
_____________

sufficient

required under

Rule 11,

there can

be no

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

material subject

the

Rule

Cotal-Crespo,
____________

colloquy

but

matter contemplated by

record, including

scripts, with a

11

the change-of-plea

inadvertently

Rule 11, we

47

F.3d at

5-7

(holding

may review

and sentencing

view to whether the omission

was harmless.

"harmless" a

omits

tran-

See
___

district

court's failure to inform defendant of right to remain silent and

confront witnesses, and of potential exposure to perjury prosecu-

tion for giving false testimony); see also Fed. R. Crim. P. 11(h)
___ ____

("Any variance

does

the

from the procedures

required by this

not affect substantial rights shall

rule which

be disregarded.").

As

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

sentence

inform the

and term

defendant of

of supervised

court from determining that the

the mandatory

minimum prison

release disabled

the district

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

discern

the guilty plea.

See
___

Cotal-Crespo, 47
____________

F.3d at

4.

We

no disabling infirmity in the core Rule 11 findings made

by the district court.1

Lopez neither claims that

nor that he

lacked understanding

his guilty plea was coerced,

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
quy

urges us to enlarge upon the required Rule 11 collo-

by directing

district

courts to

mandatory minimum

sentence

prescribed by

lesser guideline sentencing

First, a

recent guideline

directive.
which

See note 3
___

range.

inform defendants
statute

overrides

We decline, for two reasons.

amendment precludes any

infra.
_____

that a

Second,

such blanket

the presentence report,

contains the proposed guideline sentencing calculation, is

not necessarily disclosed to

guilty plea

has been approved.

("The report must not be

disclosed

the district court until after

See
___

Fed. R. Crim.

ing, has pleaded

P. 32(b)(3)

submitted to the court or its

to anyone unless the defendant

guilty or

contents

has consented in writ-

nolo contendere, or

guilty.").

the

has been

found

the mandatory minimum sentence prescribed by statute, contrary to

the explicit terms of

handwritten

the plea agreement signed by Lopez and the

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
of the defendant's

timing

motion; (3) the existence

or nonexistence of an assertion of innocence;

and

(4)

whether, when

emergent circumstances,

viewed

in

light of

the defendant's plea

appropriately may be characterized

as invol-

untary, in derogation of the requirements imposed by

Fed. R.

legally suspect.

Crim. P. 11,

or otherwise

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

tion

suspect.

We are not persuaded

that former counsel

after advising Lopez

the plea agreement and assisting

district court

questionnaire

to both those

documents, that

prison

Lopez

report

than the

with the

directly informed

something less

must impose a

mandatory minimum prescribed

than the

in the

detailed

him, contrary

would be imposed.

clear statement

that the district court

to enter into

him in completing the

sentence mandated by statute

take issue

by the bare allega-

minimum
_______

Nor did

presentence

sentence not less

in 21 U.S.C.

841(b)(1-

____________________

2Lopez is represented by different counsel on appeal.

)(B).

Indeed, at sentencing, Lopez's counsel urged the

district

court "in [its] mercy to give [Lopez] the minimum mandatory of 60

months."

Cir. 1993)

Cf. United States v. Japa, 994

__ ______________
____

(district court's

F.2d 899, 903-94 (1st

failure to inquire

into requisite

criminal intent,

evidence

combined with prosecutor's

of intent

rendered harmless

in relating

failure to describe

factual basis for

by absence of objection

guilty plea,

to presentence report

on grounds of lack of intent).

Second, the

appeal,

rather than

belated attempt to

set the plea

before sentencing,

substantially heightens

Lopez's burden.

See Fed R.
___

been imposed, "a

plea may be set aside only

by motion under

28 U.S.C.

post-sentencing

Rule

forward with

defect

11

Crim. P.

2255.").

challenge,

sufficient evidence

which inherently

results

32(e) (Once sentence

In order to

the

has

on direct appeal or

prevail on a

defendant

to demonstrate

in a

aside on

must

come

"a fundamental

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

he explicitly urges

assert legal innocence.

Rather,

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

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

contravention of the plea

_____________ __ ___ ____

guilty plea, as Lopez alleges

__ _____ _______

agreement he signed, and

_________ __ ______ ___

court questionnaire he completed,

_____ _____________ __ _________

of the
__ ___

district

same attorney.
____ ________

court

the district
___ ________

with the advice and assistance

____ ___ ______ ___ __________

Cf. Raineri,
___ _______

misinformed

in direct
__ ______

defendant

42 F.3d

at 42

(although

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

sentencing

consequences of

review on direct appeal.

an

counsel misled Lopez

his guilty

Consequently,

concerning the

plea precludes

reliable

the attempt to insinuate

ineffective assistance claim on direct appeal must be reject-

ed, see
___

1994)

United States v. Tuesta-Toro, 29 F.3d 771, 776 (1st Cir.

_____________
___________

(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

drug offenders
lines

even

sentences for

qualifying first-time

are to be determined under

the sentencing guide-

though

the guideline

sentence

is

mandatory minimum sentence prescribed by statute.

5C1.2.

U.S.S.G.

amendment

5C1.2

promulgating it

is not

listed in

than the

See U.S.S.G.
___

is not retroactive, however,

U.S.S.G.

See DeSouza v. United States, 995 F.2d 323, 324

___ _______
______________
(amendmentsnot listed in

lower

since the

1B1.10.

(1st Cir. 1993)

1B1.10 not given retroactive effect).

collateral review under 28 U.S.C.

2255.

Id.
___

10

For the

foregoing reasons, the judgment

and sentence is affirmed.

Affirmed.
Affirmed
________

of conviction

11