U.S. v. Negron-Narvaez

Decision Date07 April 2005
Docket NumberNo. 03-2678.,03-2678.
Citation403 F.3d 33
PartiesUNITED STATES of America, Appellee, v. Luis E. NEGRON-NARVAEZ, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Michael R. Schneider and Salsberg & Schneider on brief for appellant.

H.S. Garcia, United States Attorney, Nelson Pérez-Sosa and Thomas F. Klumper, Assistant United States Attorneys, on brief for appellee.

Before SELYA, Circuit Judge, COFFIN and CAMPBELL, Senior Circuit Judges.

SELYA, Circuit Judge.

In mid-trial, defendant-appellant Luis E. Negron-Narváez (Negrón) pleaded guilty to three drug-trafficking counts and one count of aiding and abetting the possession of a firearm in connection with a drug-trafficking transaction. The district court imposed sentence, and Negron appealed. He claims that his guilty plea as to the firearms count lacked an adequate factual predicate and asks us to set it aside. Alternatively, he asserts that his guilty plea to the firearms count resulted from ineffective assistance of counsel. After careful consideration of the briefs and the record, we uphold the district court's acceptance of the appellant's guilty plea and dismiss the ineffective assistance of counsel claim without prejudice to the appellant's right to reassert it under 28 U.S.C. § 2255.

I. Background

The material facts are largely uncontested. On March 27, 2003, two officers of the Puerto Rico Police Department, acting on a tip, began surveillance of a black Mazda automobile parked in front of a residence in Toa Alta. Shortly thereafter, one officer observed the appellant come out of the house carrying a large bag. The bag contained smaller bags filled with what appeared to be a white powder. The appellant passed the large bag to a man later identified as Mitchell Atanasio-Reyes (Atanasio), who then entered the vehicle. The appellant returned to the house while Atanasio waited in the car. When the appellant reemerged, the officers arrested both men. Following the arrests, the officers seized a backpack containing cocaine and marijuana from Atanasio's vehicle.

The officers also recovered a .40 caliber pistol. There is a salient factual dispute relating to this weapon. One officer testified that he had seen the appellant place the gun into his waistband; the other testified that he had removed the gun from the appellant's person coincident with the arrests. The appellant contradicted these accounts. He claimed that he did not have the weapon and that the police had recovered it from inside the black Mazda.

In short order, a federal grand jury indicted the appellant and Atanasio on three counts of aiding and abetting each other in the possession of narcotics with intent to distribute, see 21 U.S.C. § 841(a)(1); 18 U.S.C. § 2, and one count of aiding and abetting each other with respect to the possession of a firearm in furtherance of a drug-trafficking scheme, see 18 U.S.C. §§ 2, 924(c)(1)(A).1 A jury trial commenced on July 23, 2003. On the eighth day of trial, the appellant decided to change his plea. During the change-of-plea colloquy, he confirmed his understanding of the charges against him and accepted the government's version of the facts. Nevertheless, when the district court asked how he wanted to plead to the four counts, he initially replied: "One, two and three guilty, because the gun was in the car."

This response sparked some confusion as to the appellant's stance vis-a-vis count four (the firearms count). The district court essayed further questioning and then recessed the hearing in order to permit the appellant and his lawyer to confer. After the hearing resumed, the court satisfied itself that the appellant, at the very least, knew of the gun's presence in the vehicle. The court thereupon accepted the changed plea as to all four counts, ordered the preparation of a presentence report (PSI Report), and scheduled the disposition hearing for September 30, 2003.

At the disposition hearing, the appellant informed the court that he desired to withdraw his guilty plea. This desire apparently stemmed from the appellant's newfound knowledge that the officers who had testified against him subsequently had been arrested on charges that they had fabricated evidence in other cases. The court informed the appellant of the obvious — that he had changed his plea independently of any alleged police misconduct — and that he would have to show that the plea did not comply with the requirements of Fed.R.Crim.P. 11 in order to withdraw it. At that point, the appellant's counsel suggested that the plea to count four might have been involuntary due to the pressure of the trial, compounded by the testimony of the allegedly corrupt officers.

The district court prudently halted the proceedings and offered to give the appellant time to investigate the new information and decide whether to move to withdraw his plea. The appellant agreed that ten working days would be sufficient for that purpose, and his trial counsel declared that he would file a Rule 11 motion challenging the validity of the plea if he found some arguable ground to support it. The ten-day period came and went, but the appellant eschewed the filing of a Rule 11 motion.

On October 29, 2003, the district court reconvened the disposition hearing. The court sentenced the appellant to serve concurrent 121-month incarcerative terms on each of the three drug-trafficking counts and a consecutive 60-month incarcerative term on the firearms count. This appeal followed.

II. The Guilty Plea on Count Four

Before us, the appellant endeavors to resurrect the Rule 11 challenge that he opted not to raise in the court below. In evaluating this effort, we begin with first principles.

It is well established that a defendant does not have an absolute right to withdraw a guilty plea. United States v. Gonzalez-Vazquez, 34 F.3d 19, 22 (1st Cir.1994). Prior to the imposition of sentence, a defendant may be allowed to withdraw his plea if he can establish, to the trial court's satisfaction, that a "fair and just reason" for withdrawing the plea exists. United States v. Pellerito, 878 F.2d 1535, 1537 (1st Cir.1989); Fed.R.Crim.P. 11(d)(2)(B). In determining the weight to be attached to a proffered reason, a court ordinarily should focus on whether any of Rule 11' s core concerns have been implicated, that is, whether the plea, when entered, was voluntary, intelligent, and knowing. United States v. McDonald, 121 F.3d 7, 11 (1st Cir.1997); Gonzalez-Vazquez, 34 F.3d at 23. Other factors that should be considered in the decisional calculus include "the force of the defendant's proffered reason; the timing of the request; the defendant's assertion of legal innocence (or the lack of such an assertion); and the likely voluntariness of the plea, given the newly emergent circumstances." United States v. Doyle, 981 F.2d 591, 594 (1st Cir.1992). "If the combined weight of these factors tilts in the defendant's favor," then the trial court, before ruling, also should factor into the equation "the quantum of prejudice, if any, that will inure to the government." Id.

In this instance, the appellant challenges only his plea to count four. In mounting that challenge, he does not actually argue that his plea was involuntary, unintelligent, or unknowing (although he parrots that terminology in his brief). Instead, he makes a related, but somewhat different, argument. He points out that a guilty plea cannot be accepted in a vacuum. Rather, the record must show a factual basis sufficient to justify the plea. Fed.R.Crim.P. 11(b)(3). Building on this foundation, the appellant argues that, given his contradictory statements anent the gun and his occasional professions of innocence as to the firearms charge, there was an inadequate factual predicate for his plea to count four. So viewed, the gist of the argument that he makes is not that the district court should have allowed him to withdraw the plea despite the absence of any motion to that effect, but, rather, that the court abused its discretion by accepting it in the first place. We explore that argument.

The Criminal Rules require a nisi prius court to determine that an adequate factual basis underpins a guilty plea before accepting the plea. See Fed.R.Crim.P. 11(b)(3). At its most abecedarian level, the requirement that a guilty plea must be supported by an adequate factual basis ensures that the conduct to which the defendant admits constitutes the crime with which he is charged. See United States v. Ventura-Cruel, 356 F.3d 55, 59-60 (1st Cir.2003). This protects 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." Id. (quoting Fed.R.Crim.P. 11 advisory committee's note (1966 amendment)).

Against this backdrop, it is readily evident that a court to which a guilty plea is tendered has a duty to ascertain whether the record permits a conclusion that the plea has a rational basis in fact. United States v. Gandia-Maysonet, 227 F.3d 1, 6 (1st Cir.2000). The component facts may come either from the defendant's admissions and concessions or from credible evidence proffered by the government and not contradicted by the defendant. Id.

We caution that this Rule 11 inquiry is not designed to be a test of guilt versus innocence. The plea-taking court need only be persuaded that sufficient evidence exists to permit a reasonable person to reach a finding of guilt; "[t]he court need not be convinced beyond a reasonable doubt that the defendant is in fact guilty." United States v. Webb, 433 F.2d 400, 403 (1st Cir.1970).

Under ordinary circumstances, we review the district court's acceptance of a guilty plea for abuse of discretion. See Doyle, 981 F.2d at 594; United States v. Kobrosky, 711 F.2d 449, 454 (1st Cir.1983). Here, however, the appellant seeks to pursue an issue that he failed to pursue in ...

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