U.S. v. Delgado-Hernandez, 03-2245.
| Decision Date | 24 August 2005 |
| Docket Number | No. 03-2245.,03-2245. |
| Citation | 420 F.3d 16 |
| Parties | UNITED STATES of America, Appellee, v. Ehrick F. DELGADO-HERNANDEZ, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
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.
Before TORRUELLA, Circuit Judge, COFFIN, Senior Circuit Judge, and 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
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 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).
In order to be constitutionally valid, a guilty plea must be voluntary and intelligent. Bousley v. United States, 523 U.S. 614, 618, 118 S.Ct. 1604, 140 L.Ed.2d 828 (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, 61 S.Ct. 572, 85 L.Ed. 859 (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) (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, 89 S.Ct. 1166, 22 L.Ed.2d 418 (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) ().
"Under ordinary circumstances, we review the district court's acceptance of a guilty plea for abuse of discretion." United States v. Negron-Narvaez, 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, 159 L.Ed.2d 157 (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 confidence in the outcome of the proceeding." Id. at 2340 (citations and internal quotation marks omitted).
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.
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 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."
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...
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