U.S. v. Japa
| Decision Date | 05 April 1993 |
| Docket Number | No. 91-2118,91-2118 |
| Citation | 994 F.2d 899 |
| Parties | UNITED STATES, Appellee, v. Frank JAPA, Defendant, Appellant. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Gordon R. Blakeney, Jr., Concord, NH, for appellant.
William F. Sinnott, Asst. U.S. Atty., with whom A. John Pappalardo, U.S. Atty., Boston, MA, was on brief, for appellee.
Before BREYER, Chief Judge, BOWNES, Senior Circuit Judge, and BOUDIN, Circuit Judge.
In this appeal, defendant-appellant, Frank Japa, seeks to vacate his plea of guilty because of alleged errors made by the district court during the change of plea hearing. Japa also claims that the district court erred during the sentencing hearing.
After an undercover operation, Japa and one Jose Puello were arrested for drug trafficking. A two-count indictment was returned against them. Count One charged both with conspiring to possess cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846. Count Two charged them with possessing 500 grams or more of cocaine with intent to distribute within 1,000 feet of a public or private school in violation of 21 U.S.C. §§ 841(a)(1) and 845a (now § 860) and 18 U.S.C. § 2. Puello is not involved in this appeal.
After initially pleading not guilty, defendant changed his plea to guilty. There was no plea bargain. Because defendant was Spanish-speaking, an interpreter was used during both the change of plea and sentencing hearings. Defendant was sentenced to seventy months' incarceration to be followed by a supervised release term of ninety-six months. Because defendant was impecunious, no fine was imposed; he was ordered to pay a special assessment of $100.
Defendant attacks the plea proceedings on three grounds: (1) he was not adequately informed of the maximum possible sentence; (2) his plea was not voluntary because he did not understand the charges against him; and (3) there was not an adequate record of a factual basis for accepting his plea. We discuss these claims seriatim.
Although there may have been some confusion at the outset of the maximum-penalty discussion, the transcript of the change of plea hearing shows that defendant was adequately informed of and understood the maximum penalty he faced. A resume of the plea hearing follows.
Defendant was asked by the court what the maximum sentence on Count One was. He replied, "I think it is five years." The court said, "I thought it was 15." The Assistant United States Attorney then stated:
MR. O'CONNOR: Your Honor, it's 20 years. But I would also note that it's going to be a sentencing issue, but the quantity of cocaine that is relevant with respect to both Counts 1 and 2 is at least 500 grams, so at a minimum he will be in a range under the minimum mandatory provision of five to 40 years. This is statutory, two million-dollar fine, $50 on each count, and a four-year term of supervised release, at least, on each count.
Defendant was then asked by the court, "Do you understand that?" He replied, "Yes, sir." He was then asked if he understood that "all of that can be added up, the two counts added together." He replied, "Yes." It was then explained to defendant that the five-year statutory minimum was the "floor." The Assistant United States Attorney then described the guideline range:
The guideline range is 63 to 78. However, I would note that in Count 2 the Court will notice he is charged with distribution within a thousand feet of a school yard, which allows the Court to punish up to two times. The guidelines say it would be a two level adjustment upwards if the government proves at sentencing that it was within a thousand feet of a school yard, which would put him within a range of 78 to 97 but then he may get acceptance of responsibility which would put him back to 63 to 78. So really what we're talking about is somewhere in the neighborhood of five to six years, five to six and a half years.
After the explanation of the guideline range was completed, the court asked defendant if he understood what the United States Attorney had been talking about. Defendant replied, "Yes, sir." The following colloquy then took place:
Following this, the court asked defendant if anyone had told him "what sentence the Court would, in fact, impose in the event of a plea of guilty?" The defendant replied that his attorney had told him he would serve "about one year and a half or something like that." The court pointed out that it had just been explained to defendant that the minimum sentence was five years. The court then asked defendant's attorney if he had an explanation for what defendant had stated. Defendant's attorney stated: "I don't have an explanation because it didn't occur." The attorney said he discussed the guidelines with defendant without the benefit of an interpreter. The attorney then suggested that the court ask defendant "if he understands ... that the guidelines go anywhere from four to six years generally." The court then stated to defendant:
Mr. Japa, there is no way that anybody could have told you what I am going to do because I don't know what I'm going to do, and I will come up with a sentence somewhere within the ranges, in all likelihood, that we have been talking about, that is five to six and possibly seven years. Do you understand that?
THE DEFENDANT: Yes, sir.
Defendant was then asked if he wanted to change his plea. After a discussion with his attorney, with an interpreter present, defendant stated that he wished to go forward with a plea of guilty. In answer to the court's question, "Is your plea of guilty entirely free and voluntary?", the defendant answered, "Yes."
Based on the record of the change of plea hearing, we find that defendant was properly informed of the maximum penalty provided by law and that he understood the consequences of pleading guilty.
Defendant also alleges that he was inadequately informed of the term of supervised release he could be required to serve. Defendant was, in fact, sentenced to the precise term of supervised release of which he had been informed at the hearing.
The standard for setting aside a plea that has been entered and sentence imposed is narrow. Defendant must show a fundamental defect or a miscarriage of justice. Fed.R.Crim.P. § 32(d) provides:
(d) Plea Withdrawal. If a motion for withdrawal of a plea of guilty or nolo contendere is made before sentence is imposed, the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason. At any later time, a plea may be set aside only on direct appeal or by motion under 28 U.S.C. § 2255. (Emphasis added.)
It is the last sentence that is implicated here. The Note of the Advisory Committee on the Federal Rules of Criminal Procedure discussing the 1983 amendment to Rule 32(d) states in pertinent part:
Under the amendment, a defendant who proceeds too late to come under the more generous "fair and just reason" standard must seek relief under § 2255, meaning the applicable standard is that stated in Hill v. United States, 368 U.S. 424 [82 S.Ct. 468, 7 L.Ed.2d 417] (1962): "a fundamental defect which inherently results in a complete miscarriage of justice" or "an omission inconsistent with the rudimentary demands of fair procedure."
Moreover, Rule 11, which governs plea procedures, expressly provides in part (h): "Any variance from the procedures required by this rule which does not affect substantial rights shall be disregarded."
With this standard of review in place, we consider defendant's arguments. Defendant contends that his guilty plea was not voluntary because the record of the plea colloquy does not show that he understood the charges against him. Specifically, defendant asserts that the record does not establish that he understood the quantity of drugs he was charged with possessing, the charge of conspiracy, and the element of intent.
We start our analysis with the transcript of the change of plea proceedings:
After the prosecutor had summarized the government's evidence the following colloquy took place:
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