U.S. v. Jimenez

Citation512 F.3d 1
Decision Date27 December 2007
Docket NumberNo. 06-1553.,06-1553.
PartiesUNITED STATES of America, Appellee, v. Virgilio JIMENEZ, Defendant, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Elaine Pourinski, on brief, for appellant.

Robert Clark Corrente, United States Attorney, Donald C. Lockhart and Stephen G. Dambruch, Assistant United States Attorneys, on brief, for appellee.

Before LIPEZ, Circuit Judge, SELYA, Senior Circuit Judge, and HOWARD, Circuit Judge.

SELYA, Senior Circuit Judge.

In this criminal appeal, defendant-appellant Virgilio Jimenez ascribes a litany of errors to the district court proceedings that resulted in his conviction and sentence on a drug-trafficking charge. Finding none of his arguments compelling, we affirm the judgment below.

Because the appellant's conviction and sentence followed the entry of a guilty plea, we draw the essential facts from the change-of-plea colloquy and the uncontroverted portions of the presentence investigation report (PSI Report). See United States v. Dietz, 950 F.2d 50, 51 (1st Cir. 1991).

On June 15, 2002, a federal grand jury sitting in the District of Rhode Island returned a single-count indictment charging the appellant with possession of five grams or more of cocaine base with intent to distribute. See 21 U.S.C. § 841(a)(1). The indictment followed a warrant-backed search of the appellant's home, during which the authorities discovered approximately 39.22 grams of cocaine base hidden inside a can of "Carpet Fresh." The same search revealed a digital scale, drug-packaging supplies, and video surveillance equipment. After being advised of his Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the appellant confessed to his involvement in a drug-trafficking enterprise and admitted ownership of the cocaine base and drug paraphernalia.

Despite these admissions, the appellant originally pleaded not guilty to the lone count of the indictment. He later revised his plea. During the change-of-plea colloquy, he confirmed what he had related at the time of the search. At a subsequent stage of the colloquy, he expressed some confusion anent his potential sentencing exposure. The district court patiently explained the dimensions of that exposure. Particularly, the court told the appellant that if the government was able to prove that he had prior drug-related felony convictions, he would be facing a minimum ten-year term of immurement and a maximum penalty of life imprisonment. The appellant assured the court that he understood his situation.

In due course, the court found the appellant's guilty plea to be knowing and voluntary. The court therefore accepted it and invited the appellant, if he so elected, to mount a challenge at the disposition hearing to his prior convictions and the nature of the trafficked substance. The court then commissioned the preparation of the PSI Report.

In its final form, the PSI Report classified the appellant's prior convictions as controlled substance offenses and on that basis characterized him as a career offender within the purview of the federal sentencing guidelines. See USSG § 4B1.1. At the disposition hearing, the appellant did not challenge this taxonomy.

The district court explained that, as a career offender, the appellant's guideline sentencing range (GSR) would be 292 to 365 months in prison. The appellant voiced no objection to this determination. After listening to the arguments of counsel and the appellant's allocution, the court imposed a sentence at the bottom of the GSR (292 months). This timely appeal followed.

In this venue, the appellant begins by arguing that he should be permitted to withdraw his guilty plea because he did not knowingly enter that plea. He claims that he was confused about its consequences throughout the hearing. This argument implicates Federal Rule of Criminal Procedure 11, which sets the template for the acceptance of guilty pleas in federal criminal cases.

Because the appellant raises the issue about the integrity of his plea for the first time on appeal, our review is for plain error. See United States v. Vonn, 535 U.S. 55, 58-59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); United States v. Jiminez, 498 F.3d 82, 85 (1st Cir.2007); United States v. Mercedes Mercedes, 428 F.3d 355, 358 (1st Cir.2005). Plain-error review places a burden on an appellant to show (i) that an error occurred, (ii) which was clear and obvious, (iii) which affected his substantial rights, and (iv) which seriously impaired the fairness, integrity, or public perception of the proceeding. See Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); United States v. Duarte, 246 F.3d 56, 60 (1st Cir.2001).

A party who aspires to demonstrate plain error faces a steep uphill climb, and the appellant cannot scale that pinnacle. To be sure, his basic premise — that a guilty plea must be knowing in order to satisfy the strictures of the Constitution — is impeccable. See Bousley v. United States, 523 U.S. 614, 618, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); United States v. Delgado-Hernandez, 420 F.3d 16, 19 (1st Cir.2005). Moreover, to satisfy that standard, the accused must have understood the charges against him and the spectrum of possible penalties to which an admission of guilt will expose him. See Jiminez, 498 F.3d at 85; United States v. Gandia-Maysonet, 227 F.3d 1, 3 (1st Cir. 2000). But to recite these general propositions is not to say that they were disregarded in this instance.

The appellant labors mightily to portray his case as falling beyond the pale. His principal plaint is that he started out confused and remained confused as to his sentencing exposure throughout the proceedings below. The district court's attempts at clarification, he adds, did not dispel the haze. Despite the appellant's rhetorical flourishes, however, the record belies his animadversions.

A review of the transcript corroborates that the appellant at one point labored under a misconception about the possible parameters of his sentence: he thought that a five-year mandatory minimum rather than a ten-year mandatory minimum pertained, telling the district court:

Jimenez: So I don't understand why they say ten years as my mandatory minimum. That's what I don't understand. Because I look at the guidelines and it doesn't put me at a ten year minimum.

But that was only a momentary aberration. The transcript shows with conspicuous clarity that the district court promptly corrected this misimpression, advising the appellant that if he did have prior felony drug convictions, as the government represented, "then your mandatory minimum would be ten years, not five years." The court proceeded to explore the margins of the possible sentencing options and to explicate the considerations that bore on sentencing. The completeness and the transparency of this explanation ensured that the appellant, well before the court accepted his changed plea, had come to comprehend the full extent of his sentencing exposure.

The sockdolager is that the appellant proceeded to acknowledge as much. The final aspect of the relevant exchange tells the tale:

Jimenez: I understand what you're saying now, right. For instance, I plead guilty now, so what you're saying [is] a ten year minimum, right? The ten year minimum?

The Court: I have to inform you that you could be facing a ten year mandatory minimum. Now whether you are or not subject to the ten year mandatory minimum, I don't know. I'm telling you that's a possibility.

Shortly thereafter, the following colloquy occurred:

The Court: And do you also understand . . . that if your guilty plea is accepted, you could face a penalty of at least ten years and up to life in prison, followed by a period of supervised release of at least eight years and up to life, a fine of up to $4 million, and a special assessment of at least $100. Do you understand that you could receive sentences up to that amount?

Jimenez: Yes.

A defendant's acknowledgment, during a change-of-plea proceeding, that he understands a lucid explanation of his potential sentencing exposure is powerful evidence of the knowing nature of his guilty plea. See Jiminez, 498 F.3d at 86.

Given the tenor of the discourse here, this case finds a close analog in United States v. Isom, 85 F.3d 831 (1st Cir.1996), in which the defendant pleaded to drug-related charges and thereafter sought to withdraw his plea on the ground that he had misunderstood the extent of the possible penalties. See id. at 833-34. After examining the transcript of the change-of-plea colloquy, we rejected Isom's appeal, noting that the lower court had thoroughly explored whether he understood his situation. See id. at 836. Similarly, the lower court in this case took pains to ascertain that the appellant understood the dimensions of his sentencing exposure.

We summarize succinctly. While the appellant started with an inaccurate impression of what his minimum sentence could be, the district court set him straight. At and after that point, the appellant repeatedly reassured the court that he understood his potential sentencing exposure. The record bears out that he did.

The bottom line, then, is that we can discern no error, plain or otherwise, with respect to the Rule 11 colloquy. It follows, as night follows day, that there is no reason to allow withdrawal of the appellant's guilty plea. See Mercedes Mercedes, 428 F.3d at 359 (explaining that the fact that a defendant receives a harsher sentence than the one he anticipated is not a basis for setting aside a plea).

The appellant next contends that his sentence should be vacated on the ground that the two prior convictions that the sentencing court used as predicates for his career offender designation were inadequately substantiated. We examine this contention.

In order to qualify as a career offender, a defendant, among other things,...

To continue reading

Request your trial
60 cases
  • United States v. Sevilla-Oyola
    • United States
    • U.S. Court of Appeals — First Circuit
    • 16 Octubre 2014
    ...122 S.Ct. 1043 ) (reasoning that a Rule 11 issue raised for the first time on appeal was reviewed for plain error); United States v. Jiménez, 512 F.3d 1, 3 (1st Cir.2007) (same).37 Were there any question that remand is necessary due to the sentencing procedures before the district court, I......
  • U.S. v. Jones
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 24 Junio 2008
    ...Gall, this Circuit tended to discourage district courts from deviating from the crack cocaine Guidelines"); see also United States v. Jimenez, 512 F.3d 1, 8 (1st Cir.2007) ("The landscape anent the crack/powder disparity changed significantly on December 10, 2007, when the Supreme Court hel......
  • United States v. Sevilla-Oyola
    • United States
    • U.S. Court of Appeals — First Circuit
    • 16 Octubre 2014
    ...122 S.Ct. 1043) (reasoning that a Rule 11 issue raised for the first time on appeal was reviewed for plain error); United States v. Jiménez, 512 F.3d 1, 3 (1st Cir.2007) (same). 37. Were there any question that remand is necessary due to the sentencing procedures before the district court, ......
  • United States v. Sevilla-Oyola
    • United States
    • U.S. Court of Appeals — First Circuit
    • 3 Junio 2014
    ...15 (1st Cir.2008) (reasoning that a Rule 11 issue raised for the first time on appeal was reviewed for plain error); United States v. Jiménez, 512 F.3d 1, 3 (1st Cir.2007) (same). 35. Were there any question that this sentence requires remand, I also note that where the oral and written sen......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT