U.S. v. Piper

• Decision Date: 04 August 1994
• Docket Number: No. 94-1197,94-1197
• Parties: UNITED STATES of America, Appellee, v. David PIPER, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 611

35 F.3d 611

UNITED STATES of America, Appellee, v. David PIPER, Defendant, Appellant.

No. 94-1197.

United States Court of Appeals First Circuit.

Heard Aug. 4, 1994.

Decided Sept. 8, 1994.

Peter Clifford, Kennebunk, ME, for appellant.

Michael M. DuBose, Asst. U.S. Atty., with whom Jay P. McCloskey, U.S. Atty., Portland, ME, was on brief, for appellee.

Before SELYA and CYR, Circuit Judges, and ZOBEL, ^* District Judge.

SELYA, Circuit Judge.

This appeal asks us to revisit, in a slightly altered form, the question of whether conspiracy convictions qualify as triggering and/or predicate offenses for purposes of the career offender provisions of the federal sentencing guidelines. ¹ This question has divided the courts of appeals. On reflection, we adhere to the majority view and continue to treat certain conspiracy convictions as includable in determining career offender status. Because the district court took this (legally proper) approach, and because appellant's only non-sentence-related assignment of error is impuissant, we affirm the judgment below.

I. BACKGROUND

On September 2, 1993, in proceedings pursuant to Fed.R.Crim.P. 11, defendant-appellant David Piper waived indictment and pleaded guilty to a two-count information charging him with conspiracy to possess with intent to distribute over 100 kilograms of marijuana, see 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(B), 846, and using or carrying a firearm in connection with a drug-trafficking crime, see 18 U.S.C. Sec. 924(c). On February 23, 1994, the district court imposed a 25-year prison sentence on count 1, terming Piper a career offender. The court also sentenced Piper to an incremental 5-year prison term on the weapons charge.

Piper appeals, alleging error in both the acceptance of his guilty plea and the application of the career offender guideline.

II. THE RULE 11 CHALLENGE

Appellant's initial claim of error need detain us only in the respect that it requires us to make clear that specific intent to effectuate an underlying substantive offense, and not an intent to commit the substantive offense oneself, is all that is necessary to sustain a conspiracy conviction. Before reaching this vexing point, we first dispatch some necessary preliminaries.

Although Piper now contends that the district court erred in accepting a plea to the information, he did not seek to withdraw his plea below. Consequently, he can prevail on this afterthought ground only if he demonstrates a substantial defect in the Rule 11 proceeding itself. See United States v. Mateo, 950 F.2d 44, 45 (1st Cir.1991); United States v. Parra-Ibanez, 936 F.2d 588, 593-94 (1st Cir.1991). Appellant's attempts to meet this exacting standard lack force.

Appellant advances three main arguments in support of this assigned error, ² each of which centers around the drug-trafficking count. He asserts that the district court (1) mischaracterized the nature and elements of the offense, thereby frustrating his ability to understand the charge to which he pled guilty, in derogation of Fed.R.Crim.P. 11(c)(1); (2) failed to ensure that his plea was voluntary, in derogation of Fed.R.Crim.P. 11(d); and (3) accepted his plea despite the lack of an adequate factual basis, in derogation of Fed.R.Crim.P. 11(f).

We have inspected the plea colloquy with care, tested it in the crucible of Rule 11, see, e.g., Parra-Ibanez, 936 F.2d at 590 (explaining that the "strictures of Rule 11 ... are calculated to insure the voluntary and intelligent character of the plea"); United States v. Allard, 926 F.2d 1237, 1244-45 (1st Cir.1991) (identifying core Rule 11 concerns: absence of coercion, understanding of charges, and knowledge of consequences of guilty plea), and find no hint of any mischaracterization. To the precise contrary, the lower court proceeded in a meticulous fashion to ensure that appellant understood the gist of the information. A judge's responsiveness to a defendant's articulated concerns is of great importance in Rule 11 proceedings. See, e.g., United States v. Buckley, 847 F.2d 991, 999 (1st Cir.1988) (explaining need for court to respond appropriately to defendant's questions at change-of-plea hearing), cert. denied, 488 U.S. 1015, 109 S.Ct. 808, 102 L.Ed.2d 798 (1989). Here, the judge not only fulfilled the core requirements of Rule 11, but also furnished suitably detailed explanations when appellant sought clarification of certain points. And, moreover, the record is replete with indications that appellant understood the charges, faced up to them, and chose voluntarily to plead guilty.

We need not paint the lily. An appellate court must read the transcript of a Rule 11 colloquy with practical wisdom as opposed to pettifoggery. See United States v. Medina-Silverio, 30 F.3d 1, 3 (1st Cir.1994) (emphasizing that there is no "formula of 'magic words' in meeting the requirements of Rule 11"); Allard, 926 F.2d at 1245 (similar); see also Fed.R.Crim.P. 11(h) (explaining that, to warrant vacation, irregularities in a plea-taking proceeding must affect the defendant's "substantial rights"). Viewed from that perspective, appellant's first two arguments are meritless. The district court's performance in explaining the charges and ensuring that defendant understood them easily passes muster under Rule 11(c) and (d). The plea was voluntary.

The third prong of appellant's assignment of error requires special mention, for the argument advanced indicates some confusion over what proof is required in order to sustain a conspiracy conviction. Appellant's thesis is that, while he agreed to help steal the marijuana, he did not have an intent to distribute it himself, and, thus, could not be guilty of (and could not validly plead guilty to) the conspiracy charge.

This thesis does not receive a passing grade. A specific intent to distribute drugs oneself is not required to secure a conviction for participating in a drug-trafficking conspiracy. This conclusion is neither new nor original. In United States v. Rivera-Santiago, 872 F.2d 1073 (1st Cir.), cert. denied, 492 U.S. 910, 109 S.Ct. 3227, 106 L.Ed.2d 576 & 493 U.S. 832, 110 S.Ct. 105, 107 L.Ed.2d 68 (1989), we upheld a conviction for conspiracy to distribute marijuana based on evidence that the defendant had agreed to store a large quantity of the drug in his house, even though no evidence had been adduced that he intended to play a role in its distribution. See id. at 1081. In the process, we explained that an individual could be found to be part of a conspiracy to possess and distribute [marijuana] even though he neither directly participated in interstate trafficking nor knew the precise extent of the enterprise. The fact that he participated in one ... link of the distribution chain, knowing that it extended beyond his individual role, was sufficient.

Id. at 1079 (emphasis supplied).

Any confusion in this area of the law may arise from a possible ambiguity in certain of our earlier decisions. In Rivera-Santiago, for example, we stated, in the paragraph immediately preceding the language quoted above, that "[i]n order to prove that a defendant belonged to and participated in a conspiracy, the government must prove two kinds of intent; intent to agree and intent to commit the substantive offense." Id. This "double intent" formulation neither began with Rivera-Santiago, see, e.g., United States v. Drougas, 748 F.2d 8, 15 (1st Cir.1984), nor ended there, see, e.g., United States v. Mena-Robles, 4 F.3d 1026, 1031 (1st Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1550, 128 L.Ed.2d 199 (1994); United States v. Nueva, 979 F.2d 880, 884 (1st Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1615, 123 L.Ed.2d 175 (1993). Insofar as we can determine, the formulation made its First Circuit debut in United States v. Flaherty, 668 F.2d 566 (1st Cir.1981), where the panel stated that "[t]wo types of intent must be proved: intent to agree and intent to commit the substantive offense." Id. at 580. For this proposition the panel cited United States v. United States Gypsum Co., 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978). But Gypsum says something slightly different: "[i]n a conspiracy, two different types of intent are generally required--the basic intent to agree ... and the more traditional intent to effectuate the object of the conspiracy." (emphasis supplied). Id. at 444 n. 20, 98 S.Ct. 2877 n. 20. Though slight, the difference is important. Its significance comes into focus in the case before us.

Perhaps the best way to illustrate the difference is by asking a question: does one who intentionally agrees to undertake activities that facilitate commission of a substantive offense, but who does not intend to commit the offense himself, have the requisite intent to be convicted of conspiracy? According to a literal reading of Flaherty--a reading which we are sure the Flaherty court never intended and which, to our knowledge, has never been implemented in this circuit--the answer to the question would be in the negative. Under such a reading, a defendant must have the "intent to commit the substantive offense" in order to ground a conviction. But under Gypsum, by contrast, the answer to the question is plainly in the affirmative, for our hypothetical defendant "inten[ded] to effectuate the object of the conspiracy."

Gypsum's formulation not only makes good sense, but it is also good law. In practice, our cases have hewed to that line. See, e.g., Rivera-Santiago, supra; United States v. Moosey, 735 F.2d 633, 635-36 (1st Cir.1984) (upholding conviction for conspiracy even though defendant personally had not intended to, and did not, participate in the underlying substantive offense of interstate trafficking).

We conclude, therefore, that the "double intent" language contained in Flaherty and its progeny, correctly read, merely rehearses the Gypsum formulation, and requires that the government prove an intent to agree and an intent to effectuate...