United States v. Fernández-Santos, s. 15-2456 & 15-2462

• Decision Date: 01 May 2017
• Docket Number: Nos. 15-2456 & 15-2462,s. 15-2456 & 15-2462
• Parties: UNITED STATES of America, Appellee, v. Diego FERNÁNDEZ-SANTOS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

856 F.3d 10

UNITED STATES of America, Appellee,

v.Diego FERNÁNDEZ-SANTOS, Defendant, Appellant.

Nos. 15-2456 & 15-2462

United States Court of Appeals, First Circuit.

May 1, 2017

Jose R. Gaztambide-Aneses for appellant.

Mainon Schwartz , Assistant United States Attorney, with whom Rosa Emilia Rodríguez–Vélez , United States Attorney, Mariana E. Bauzá Almonte , Assistant United States Attorney, Chief, Appellate Division, and Thomas F. Klumper , Assistant United States Attorney, Senior Appellate Counsel, were on brief, for appellee.

Before Howard, Chief Judge, Dyk^* and Thompson, Circuit Judges.

THOMPSON, Circuit Judge.

Defendant-appellant Diego Fernández-Santos ("Fernández") pled guilty to three charges stemming from his possession of guns and drugs while on supervised release. He later moved to change his plea to not guilty, but the district court denied the motion and sentenced him to seventy-six months' imprisonment on those three charges plus twenty-four months, to be served consecutively, for violating the terms of his supervised release. He now appeals the court's denial of his motion to change his plea and the procedural reasonableness of his 100-month sentence. Finding no error on either score, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY¹

Back in 2011, Fernández was convicted of possessing cocaine with intent to distribute. He was sentenced to time served and placed on supervised release. Fernández failed to comply with the terms of that supervised release, so law enforcement officers obtained a warrant for his arrest. Early in the morning of February 13, 2014, the officers approached his home to make the arrest, knocked on the door, and identified themselves. They got no response but heard movement inside, so they attempted to enter by force. But this took a little time, and as they were trying to get through the front door, someone ran out the back door carrying a red bag. Officers gave chase. The runner turned out to be Fernández's twelve-year-old nephew, and the red bag contained drug paraphernalia, cocaine residue, zip-top bags with a fruit insignia (commonly used by drug dealers to brand their product), 9mm ammunition, and two firearm magazines.

Meanwhile, other officers got in the house and quickly apprehended a wet-handed Fernández, who was darting out of the bathroom and also trying to flee out the back door. Officers searched the house and found more drug paraphernalia, including cutting agents (used to increase the quantity of saleable drugs), torn "eight-ball" wrappings on top of the washing machine next to the bathroom (later found to contain trace amounts of cocaine), digital scales, and more fruit-branded zip-top bags. When asked if there was anything in the house that might harm an officer, Fernández said there was a gun hidden behind the washing machine, so the officers immediately recovered it.

On March 27, 2014, a grand jury indicted Fernández on three charges: (1) possession with intent to distribute a detectable amount of cocaine, in violation of 21 U.S.C. § 841 ("Count One"); (2) possession of a firearm in furtherance of the drug-trafficking crimes charged in Count One, in violation of 18 U.S.C. § 924(c)(1)(A) ("Count Two"); and (3) being a convicted felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) ("Count Three").

Fernández's trial began on June 9, 2014. A jury got selected, the government and Fernández's counsel made their opening statements, the court gave preliminary jury instructions about the three charges and their elements, and the government presented some of its evidence. The next day Fernández put a halt to the trial and changed his plea to guilty to all three charges.

At his change-of-plea colloquy, Fernández stated that he had received a copy of the indictment and had discussed it with his counsel. Fernández further stated that he was satisfied with his counsel's representation, understood the charges against him, committed the crimes charged, and was pleading guilty knowingly, voluntarily, and intelligently. The government recounted some of the evidence against Fernández, who agreed with the government's version of the facts. The district court accepted his guilty plea and set a date for sentencing.

Shortly after pleading guilty, Fernández was transferred from Puerto Rico to a prison in Georgia. Fernández claims he lost touch with his lawyer after the transfer. On September 10, 2014, three months after Fernández pled guilty to the charges, his attorney filed a motion to withdraw from the case. The district court opted to grant the motion in part—it appointed a new attorney to work with the original one. Then, on November 3, 2014, Fernández's original attorney sought the same relief and made a second motion to withdraw. This time, the district court granted it in full. That left Fernández's new attorney as his sole defense counsel.

The ins and outs of the rest of the proceedings are important to understanding Fernández's legal arguments on appeal, so we outline them now and save the details for later. First, working with his new attorney, on January 11, 2015, seven months after he pled guilty, Fernández moved to withdraw his guilty plea. After hearing from both sides, the court denied this motion, concluding that: Fernández pled guilty voluntarily, knowingly, and intelligently; Fernández's claim of actual innocence was meager; and Fernández's motion was not timely. Following this denial, on November 4, 2015, the district court sentenced Fernández to sixteen months to be served concurrently on Counts One and Three, and sixty months to be served consecutively for Count Two—a total of seventy-six months for the three charges. But that was not all. Remember that officers caught Fernández when they came to arrest him for violating the conditions of his supervised release imposed for his 2011 conviction. One of those conditions: "the defendant shall not commit another ... crime." So, after Fernández pled guilty to the other crimes, the court found Fernández had violated the conditions of his supervised release. For the violation, the court sentenced Fernández to an additional twenty-four months, to be served consecutively to his seventy-six month sentence, bringing Fernández's total sentence to 100 months.

Fernández appeals, challenging the district court's denial of his motion to withdraw his guilty plea and the consecutive nature of his violation sentence.

DISCUSSION

A. Motion to Withdraw the Guilty Plea

Fernández first argues that the district court erred by denying Fernández's motion to withdraw his guilty plea. Of course, the government says the district court did no such thing. That "a defendant has no absolute right to withdraw a guilty plea" is a well-established maxim. United States v. Caramadre , 807 F.3d 359, 366 (1st Cir. 2015), cert. denied , ––– U.S. ––––, 136 S.Ct. 2455, 195 L.Ed.2d 266 (2016). A person wishing to do so after the court has accepted a plea but before sentencing bears the burden of showing a "fair and just reason for requesting the withdrawal." Id. (quoting Fed. R. Crim. P. 11(d)(2)(B) ). To determine whether a defendant has shown a "fair and just reason," courts consider a number of factors under the totality of the circumstances, including

• "whether the original guilty plea was knowing, intelligent, and voluntary,"

• "the timing of the request," and

• "whether the defendant is now colorably asserting legal innocence."

Id. (citation omitted). If these factors weigh in favor of allowing the defendant to withdraw his guilty plea, courts also consider any prejudice the government would face as a result. Id. We review a district court's ruling on a motion to withdraw a guilty plea for an abuse of discretion. United States v. Merritt , 755 F.3d 6, 9 (1st Cir. 2014). Assessing each of Fernández's arguments on each factor in turn, we conclude that the district court did not abuse its discretion in denying Fernández's motion to withdraw his plea.

1. Knowing, Intelligent, and Voluntary Plea

On to Fernández's first argument, that his guilty plea was not made knowingly, intelligently, and voluntarily. He gives us two reasons why, claiming: (1) he did not understand the charges against him, and (2) his original lawyer gave him ineffective assistance. As we explain, neither argument helps him here.

i. Understanding of the Charges

Fernández claims he did not understand the charges against him because the court explained the charges in "very general terms" and inadequately explained the mens rea the government would have to prove at trial.² So, his plea was not knowing, intelligent, and voluntary. The government says the explanation of the charges was adequate. We agree.

Rule 11 requires 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," Fed. R. Crim. P. 11(b)(1)(G), including "the elements of the charges that the prosecution would have to prove at trial," United States v. Gandia-Maysonet , 227 F.3d 1, 3 (1st Cir. 2000). However, Rule 11"does not require the court to explain the technical intricacies of the charges in the indictment." United States v. Ramos-Mejía , 721 F.3d 12, 15 (1st Cir. 2013) (internal citations and quotation marks omitted). Ordinarily, "it is sufficient in a plea colloquy for a district court to ascertain that a defendant is aware of the nature of the charge[s] against him by reading the charge[s] in the indictment to the defendant and obtaining his competent acknowledgment that he understands the charge[s]." Id. (internal citations and quotation marks omitted).

Here, the district court certainly did at least this much. At the change-of-plea hearing, the district court confirmed that Fernández was competent to plead guilty (a finding he does not challenge on appeal) and wanted to plead guilty to the charges. The district court went on to describe the charges against Fernández, including a statement of the...