U.S. v. Parra-Ibanez
| Decision Date | 09 January 1991 |
| Docket Number | PARRA-IBANE,No. 90-1768,D,90-1768 |
| Citation | 936 F.2d 588 |
| Parties | UNITED STATES, Appellee, v. Francisco J.efendant, Appellant. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Rafael F. Castro Lang, San Juan, P.R., for defendant, appellant.
Rosa Emilia Rodriguez Velez, Asst. U.S. Atty., with whom Daniel F. Lopez Romo, U.S. Atty., was on brief for appellee.
Before CAMPBELL and SELYA, Circuit Judges, and POLLAK *, Senior District Judge.
Appellant Francisco J. Parra-Ibanez and a travelling companion were arrested in the Luis Munoz Marin International Airport in San Juan, Puerto Rico, shortly after their arrival on a plane from Colombia. Thereafter they were indicted on three drug counts--possession of cocaine with intent to distribute, importation of cocaine, and transportation of cocaine by aircraft. After initially pleading not guilty, Parra entered into an agreement with the government under which he would plead guilty to the possession count--a plea entailing a five-year mandatory minimum prison sentence.
The first change of plea hearing was adjourned to provide an opportunity for a determination of defendant's mental competence. At a subsequent hearing, the district court was advised by an examining psychiatrist that Parra was competent. A second change of plea hearing took place a week later. At the outset of the guilty plea colloquy, Parra answered "medication" to the judge's question "Have you taken medicine, drugs or alcohol in the last 24 hours?" Parra identified three medications that he had taken--Ativan, Halcion and Restoril--and said "Yes, sir" to the judge's question "Ativan, is that a drug to control your nerves or something?" Further on in the colloquy, the judge inquired about the appellant's understanding of the change of plea proceeding and of the maximum penalty that could be imposed; appellant responded satisfactorily to both questions. Also, the judge inquired of defense counsel and of the federal prosecutor whether they were satisfied that Parra was competent to plead, and both counsel responded in the affirmative. The guilty plea was accepted.
Four months later, the district court imposed the mandatory minimum five-year prison sentence. Thereafter, Parra moved for resentencing on the ground that, as utilized by federal prosecutors in Puerto Rico with respect to Colombians, the statutory and sentencing-guidelines provisions mandating a minimum five-year sentence are unconstitutional. The district court has not acted on that motion.
Parra has not at any time, either prior or subsequent to sentence, moved in the district court to withdraw his guilty plea. On appeal, Parra contends that two errors were committed below. First, Parra argues that, given the fact that the judge was advised by Parra that he had recently taken three medications, the judge's inquiry into Parra's understanding of the implications of the proposed guilty plea was not sufficient to comply with the strictures of Rule 11 of the Federal Rules of Criminal Procedure which are calculated to insure the voluntary and intelligent character of the plea. 1 Second, Parra contends that the district court erred in failing to determine that the relevant statutory and guidelines provisions calling for a mandatory minimum five-year sentence are, at least as applied to Colombians in Puerto Rico, violative of due process. 2
For the reasons that follow, we conclude that the district court's guilty plea colloquy fell short of Rule 11 standards by failing to explore questions raised by appellant's acknowledged use of prescription medications. We remand to the district court for consideration of a factual issue we cannot resolve on the present record--namely, whether the medications taken by the appellant at the time of changing his plea could have interfered with his ability to enter a voluntary and intelligent guilty plea. We also conclude that appellant's constitutional challenge to his mandatory minimum five-year sentence is not properly before us; we therefore decline to consider that aspect of the appeal, but without prejudice to the appellant's right to raise and revisit the validity of the sentence in the context of other proceedings.
On August 1, 1989, federal customs agents inspecting airline passengers arriving from Colombia found approximately one kilogram of cocaine stashed in the false bottom of Parra's suitcase. He and his travelling companion, who was also found to have approximately one kilogram of cocaine in his suitcase, were arrested and subsequently charged in a three-count indictment with possessing cocaine with intent to distribute, with importing cocaine, and with transporting cocaine by aircraft (and with aiding and abetting each other in the foregoing). 3 Although on arraignment Parra pleaded not guilty, he later executed a plea agreement with the government in which he agreed to plead guilty to count one (possession and aiding and abetting). 4 The plea agreement recited that Parra "understands that he may be sentenced to a minimum term of five (5) years and to a maximum term of imprisonment of forty (40) years" and that "the government will not oppose [Parra's] request to be sentenced to the statutory minimum of five (5) years."
On October 16, 1989, at an initial change of plea hearing, Parra informed the court that he had undergone psychiatric treatment and had a history of drug abuse. 5 Accordingly, at the government's request, the court adjourned the change of plea proceedings and ordered a mental evaluation as groundwork for a determination of competency. At a competency hearing conducted on January 30, 1990, Dr. Fernando Cabrera, a psychiatrist who had examined Parra, testified that Parra was competent to participate in further judicial proceedings. 6
A second change of plea hearing was held on February 6, 1990. In the course of that hearing, the following colloquy took place:
The court did not undertake to explore whether any of the medications identified by Parra affected his ability to enter a voluntary and intelligent plea. The court did, however, at other points in the hearing, inquire as to Parra's general ability to comprehend the proceedings:
MS. RODRIGUEZ [Assistant United States Attorney]: The government has no doubt, your honor ...
At the conclusion of the hearing, the court accepted Parra's guilty plea. Defense counsel did not at that time, or at any subsequent time prior to perfecting this appeal, either object to or move to set aside the plea.
On March 20, 1990, the court granted a motion for further psychological evaluation submitted by defense counsel--while visiting Parra in prison, defense counsel had observed his client's "highly depressed" and "emotionally disturbed" condition and learned that he had recently attempted suicide. 7 An evaluation was conducted on March 27 by Francisco Umpierre, a clinical psychologist, who concluded, inter alia, that Parra
is in need of psychological treatment due to his strong depressive symptomatology and suicidal history and we may consider him as a high suicidal risk person, and every effort should be make [sic] to provide to him an adequate follow-up for his condition.
Due to his previous history of head confusion and the development of seizures the client should be seen by a neurologist to adequately assess the need for further medication. 8
The presentence report, prepared by the probation officer on April 6, 1990, noted that "[d]efendant remains under psycho-pharmacological treatment." 9
At no point, prior to filing this appeal, did defense counsel attempt to direct judicial attention to the issue of Parra's medications or suggest that such medications might interfere with Parra's competency to participate in judicial proceedings.
On June 20, 1990, Parra was sentenced to a five-year term of imprisonment. He filed a notice of appeal on June 28, 1990. On July 27, 1990, he filed a further motion in the district court, requesting that the statutory and guidelines provisions imposing a mandatory minimum term of imprisonment be declared unconstitutional and that he be resentenced accordingly. On oral argument before this court, it was represented that the district court had not yet acted on that motion.
We first consider whether the issues presented can be entertained on appeal.
Parra's first contention--that his guilty plea was deficient because the district judge failed to explore...
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Singleton v. US, Civ. No. 92-1277 (JAF). Crim. No. 88-014.
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