United States v. Urbina-Robles

• Decision Date: 01 April 2016
• Docket Number: No. 14–1530.,14–1530.
• Citation: 817 F.3d 838
• Parties: UNITED STATES of America, Appellee, v. Ricardo URBINA–ROBLES, Defendant–Appellant.
• Court: U.S. Court of Appeals — First Circuit

817 F.3d 838

UNITED STATES of America, Appellee,

v.Ricardo URBINA–ROBLES, Defendant–Appellant.

No. 14–1530.

United States Court of Appeals, First Circuit.

April 1, 2016.

Kendys Pimentel Soto, with whom Kendys Pimentel Soto Law Office was on brief, for appellant.

Francisco A. Besosa–Martínez, Assistant United States Attorney, with whom Rosa Emilia Rodríguez–Vélez, United States Attorney, and Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellant.

Before HOWARD, Chief Judge, THOMPSON and BARRON, Circuit Judges.

BARRON

, Circuit Judge.

Ricardo Urbina–Robles ("Urbina") pled guilty to carjacking, 18 U.S.C. § 2119

, and carrying a firearm during and in relation to a crime of violence, 18 U.S.C. § 924(c). The District Court sentenced him to a total of 360 months in prison. Urbina appealed. Finding no error that warrants the reversal of Urbina's conviction or sentence, we affirm.

I.

This case arises from a harrowing crime.¹ Early in the morning on February 4, 2013, Urbina and two accomplices broke into the victims' home in Puerto Nuevo, Puerto Rico. All three burglars wore masks and carried firearms. Once inside the home, the burglars tormented the victims, a father and son, both physically and mentally. They also stole several items, including a car. The robbers then drove away in the father's car, and the father called the police.

A grand jury indicted Urbina for carjacking, 18 U.S.C. § 2119

, and carrying a firearm during and in relation to a crime of violence, 18 U.S.C. § 924(c). Urbina initially pled not guilty. On November 14, 2013, however, Urbina moved to change his plea. At a hearing on November 27, 2013, he pled guilty to both counts of the indictment. Urbina entered a "straight plea," meaning that he pled guilty without entering into a plea agreement. On April 2, 2014, the District Court sentenced Urbina to a total of 360 months of incarceration.

II.

On appeal, Urbina first asks this Court to vacate his guilty plea to Count I of the indictment, which charges Urbina with committing carjacking in violation of 18 U.S.C. § 2119

. That statute prohibits the taking of a motor vehicle that has been shipped in interstate commerce "from the person or presence of another

by force and violence or by intimidation," if done "with the intent to cause death or serious bodily harm." Id. (emphasis added).

The indictment does not refer to the words "the person or presence." Instead, the indictment simply charges Urbina with taking a motor vehicle "from N.D.R. [ (the victim) ], by force, violence, and intimidation" (emphasis added). Urbina contends that charging a defendant with taking a car "from" someone is not the same, legally, as charging a defendant with taking a car "from the person or presence" of someone. The former formulation of the crime, Urbina argues, does not require the same showing of the car's proximity to the person from whom it has been taken as does the latter formulation, which is the one that the carjacking statute uses. See United States v. Savarese, 385 F.3d 15, 18–19 (1st Cir.2004)

(discussing the proximity required by the carjacking statute). He thus argues that the indictment omitted an element of the crime for which he was charged.

The Supreme Court has held, however, that defects in indictments are not jurisdictional and thus are subject to waiver. See United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)

("[D]efects in an indictment do not deprive a court of its power to adjudicate a case."); see also United States v. Mojica–Baez, 229 F.3d 292, 311 (1st Cir.2000) (stating that an indictment's omission of an element is subject to plain error review). Accordingly, Urbina waived his right to bring this non-jurisdictional challenge when he pled guilty to the crime. See United States v. Díaz–Doncel, 811 F.3d 517, 518 (1st Cir.2016) (holding that, absent exceptions not applicable here, an unconditional guilty plea waives nonjurisdictional challenges to a conviction).

Nevertheless, Urbina does retain the right to challenge the validity of his plea. See United States v. Castro–Vazquez, 802 F.3d 28, 32–33 (1st Cir.2015)

. And he challenges his plea on a number of grounds, including one that relies in part on the same contention about the indictment's misstatement of the "from the person of presence of" element. We now turn to those challenges.

III.

To argue that his guilty plea should be vacated, Urbina points to what he contends were the District Court's violations of various Federal Rule of Criminal Procedure 11

requirements at his plea colloquy. Urbina concedes that our review of the alleged violations is for plain error, because he did not raise them below. See United States v. Dominguez Benitez, 542 U.S. 74, 80, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). And so Urbina concedes that he must show as to each one "(1) an error, (2) that is clear or obvious, (3) which affects his substantial rights ... and which (4) seriously impugns the fairness, integrity, or public reputation of the proceeding." United States v. Hernández–Maldonado, 793 F.3d 223, 226 (1st Cir.2015) (quoting United States v. Correa–Osorio, 784 F.3d 11, 18 (1st Cir.2015) ). Because we are dealing here with a conviction resulting from a guilty plea, to meet the third prong, Urbina must show that there is a reasonable probability that, but for the error, he might not have pled guilty. See United States v. Gandia–Maysonet, 227 F.3d 1, 4–5 (1st Cir.2000).

But while Urbina argues that he satisfies this standard as to each Rule 11

violation, he does not in fact meet it as to any. We start with the one that is closely tied to the omission of the "person or presence" language of § 2119 from Count I of the indictment. We then consider the others.

A.

During Urbina's plea colloquy, the District Court told Urbina that he was charged with taking the vehicle "from the possession of [the victim] by force, violence, and intimidation." The District Court did not use the statutory language, "from the person or presence" of the victim. See 18 U.S.C. § 2119

. Urbina thus argues that his plea should be vacated because the District Court violated Rule 11(b)(1)(G), which required the District Court to "inform the defendant of, and determine that the defendant understands ... the nature of each charge to which the defendant is pleading."

Our prior decisions in Gandia–Maysonet, 227 F.3d 1

, and United States v. Delgado–Hernandez, 420 F.3d 16 (1st Cir.2005), provide the framework for assessing this challenge. As we explained in Gandia–Maysonet, "because a guilty plea is a shortcut around the fact-finding process, reviewing courts have been willing to intervene when an error in the guilty plea process arguably affects a ‘core concern’ of Rule 11." 227 F.3d at 3 (quoting United States v. Hernandez–Wilson, 186 F.3d 1, 5 (1st Cir.1999) ). And one such core concern is "ensuring that the defendant understands the elements of the charges that the prosecution would have to prove at trial." Id.; see also Delgado–Hernandez, 420 F.3d at 19 ("In order to be constitutionally valid, a guilty plea must be voluntary and intelligent." (citing Bousley v. United States, 523 U.S. 614, 618, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) )).

The government's sole contention is that there was no clear or obvious error in the colloquy because the difference between "from the possession of" and "from the person or presence of" is not material. But the government is wrong. For while every auto theft entails taking a car from the possession of the car's owner—regardless of how proximate the car is to the victim when it is taken—not every auto theft entails taking the car from "the person or presence" of the owner. It is only those thefts that involve taking a car that is proximate to the victim in this specific way, however, that Congress saw fit to criminalize under the carjacking statute. Cf. Savarese, 385 F.3d at 18–19

.

In some cases, the indictment or the plea agreement may properly describe the same element that is misstated in the plea colloquy. See Delgado–Hernandez, 420 F.3d at 26

. In such cases, the error thus might not undermine the Rule 11 requirement's "core concern": ensuring that "the defendant understands the elements of the charges that the prosecution would have to prove at trial." Gandia–Maysonet, 227 F.3d at 3.

But here, as we have noted, the indictment itself misstated the element that the car be taken "from the person or presence" of the victim. In fact, the indictment did not even include the words "the possession of" that the government contends (wrongly) were an adequate substitute for the words Congress used to establish the element. Instead, the indictment simply stated that Urbina was charged with taking the vehicle "from" the victim "by force, violence, and intimidation." Nor was there a plea agreement that might have provided Urbina with the requisite notice of the element in question.²

Notwithstanding the significance of the misstatement in the colloquy, Urbina still does need to show that there is a reasonable probability that he would not have pled guilty had the Rule 11

colloquy been conducted without this error. See Gandia–Maysonet, 227 F.3d at 4–5. But, in his initial briefing, as well as in the supplemental briefing this panel ordered on this very issue, Urbina merely asserts that he might not have so pled. On this record, that contention is not enough.

The discovery materials Urbina received prior to his guilty plea clearly suggested that, at trial, the government would have little trouble proving the "person or presence" element. Those materials included: photos which show that the house had a driveway and a garage, where the car could have been; a statement Urbina made to the police that "he acted alone, that he walked by the house[,] saw the car, and took it;" the report from a photo array, in which the victim identified Urbina "as one of the assailants who did the home invasion/carjacking at his...