U.S. v. Rivera-Ramirez, RIVERA-RAMIRE

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Citation: 715 F.2d 453
• Docket Number: No. 82-1387,RIVERA-RAMIRE,D,82-1387
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Hipolitoefendant-Appellant.
• Decision Date: 06 September 1983

Page 453

715 F.2d 453 UNITED STATES of America, Plaintiff-Appellee,
v.
Hipolito RIVERA-RAMIREZ, Defendant-Appellant. No. 82-1387. United States Court of Appeals,
Ninth Circuit. Argued and Submitted Feb. 7, 1983.
Decided Sept. 6, 1983.

Page 454

Andres Alonso, Jr., Los Angeles, Cal., for plaintiff-appellee.

James P. Walsh, Jr., Los Angeles, Cal., for defendant-appellant.

Appeal from the United States District Court for the Central District of California.

Before HUG and CANBY, Circuit Judges, and RYAN, ^* District Judge.

HUG, Circuit Judge:

Hipolito Rivera-Ramirez appeals an order denying his Fed.R.Crim.P. 32(d) motion to withdraw his guilty plea. Because none of the asserted errors constitutes manifest injustice, the denial of the motion was not an abuse of discretion. We therefore affirm.

Rivera-Ramirez was indicted on one count of possession of cocaine with intent to distribute and one count of conspiracy. 21 U.S.C. §§ 841(a) and 846. He pleaded not guilty to these charges, but subsequently

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entered into plea negotiations with the United States Attorney prosecuting the case. Through his attorney, Rivera-Ramirez agreed to accept the plea agreement offered by the Government.

At a hearing on November 16, 1981, Rivera-Ramirez withdrew his plea of not guilty and announced his intention to plead guilty to both counts of the indictment. He was represented by counsel and also aided by an official court interpreter. The district judge read to Rivera-Ramirez the charges pending against him. The judge then questioned him as to his understanding of his trial rights and his satisfaction with his attorney's representation. Rivera-Ramirez responded that he understood each of his constitutional rights and that his plea was not the product of coercion, promises, or threats, but would be given freely and voluntarily. He acknowledged that the plea agreement he had entered into was based only on the Government's promise not to indict him on an additional charge, and that no representations had been made as to the sentence he would receive. He stated his understanding that the court "can give me a fifteen-year sentence for each charge and $25,000 fine for each," and was further advised of the possibility of a maximum lifetime special parole term and of an impact on his immigration status. The judge then explored the factual basis for the plea, accepting comments from Rivera-Ramirez, his attorney, and the prosecutor. Having found that the plea was knowing and voluntary and that a factual basis existed, the court accepted Rivera-Ramirez's plea of guilty to both counts. At a subsequent hearing, he was sentenced to the maximum penalty--two consecutive fifteen-year terms, a fine of $50,000, and a lifetime special parole term.

Several months later Rivera-Ramirez obtained new counsel. On May 17, 1982, he filed a motion under Fed.R.Crim.P. 32(d) for leave to withdraw his guilty plea. He contended his plea hearing had been conducted in violation of Fed.R.Crim.P. 11 and various constitutional provisions. Following a hearing, the district court denied the motion, and Rivera-Ramirez appeals the refusal to permit withdrawal of the plea.

Rivera-Ramirez's primary contention on appeal is that the district court failed to comply with the requirement of Rule 11(c)(1) that the court "address the defendant personally in open court and inform him of, and determine that he understands, ... the nature of the charge to which the plea is offered ...." Specifically, Rivera-Ramirez argues that, following the reading of the indictment, the court was obligated to explain further the terms "conspiracy" and "possession" and to inquire as to Rivera-Ramirez's understanding of these terms. He contends that the court's failure to satisfy the formal requirements of Rule 11 invalidated his guilty plea.

These claims require us to determine what burden a defendant bears in asserting a claim under Rule 32(d). Rule 32(d) provides:

A motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.

In McCarthy v. United States, 394 U.S. 459, 472, 89 S.Ct. 1166, 1174, 22 L.Ed.2d 418 (1969), the Supreme Court, in reviewing a judgment on direct appeal, held that a defendant whose plea was accepted in technical violation of Rule 11 was entitled to have the plea set aside and to plead anew. Until recently there was considerable question as to whether a technical violation of Rule 11 entitled the defendant to have the plea set aside in a collateral proceeding under 28 U.S.C. § 2255 or under Fed.R.Crim.P. 32(d).

The Supreme Court in United States v. Timmreck, 441 U.S. 780, 784-85, 99 S.Ct. 2085, 2087-88, 60 L.Ed.2d 634 (1979), held that a technical violation of Rule 11 would not support a collateral attack under section 2255 on a conviction based on a guilty plea, where there was no showing of constitutional error or special prejudice. After Timmreck, we held that collateral relief

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was not available when all that was shown was a failure to comply with the formal requirements of Rule 11. United States v. Lopez-Beltran, 619 F.2d 19, 20 (9th Cir.1979). ¹

We emphasize that Rivera-Ramirez did not directly appeal the judgment of conviction in this case by filing a notice of appeal within the ten-day requirement of Fed.R.App.P. 4(b), as was the case in McCarthy, nor did he file his Rule 32(d) motion within that ten-day period. Instead, he attacked the judgment several months later under Rule 32(d). Under those circumstances, his motion amounts to a collateral attack and he must meet the burdens imposed upon a defendant who seeks to set aside his plea in collateral proceedings. See United States v. Watson, 548 F.2d 1058, 1063 (D.C.Cir.1977); United States v. Laura, 500 F.Supp. 1347, 1355 (E.D.Pa.1980); see also Borman, The Hidden Right to Direct Appeal from a Federal Plea Conviction, 64 Cornell L.Rev. 319, 327 (1979).

Section 2255 and Rule 32(d) provide alternate routes to set aside a guilty plea collaterally. Under section 2255 it is clear that claiming a technical violation of Rule 11 is insufficient. Instead, the defendant's burden is to establish a constitutional or jurisdictional error, or that the proceeding in which his plea was accepted was "inconsistent with the rudimentary demands of fair procedure" or resulted in a "complete miscarriage of justice." Timmreck, 441 U.S. at 783-84, 99 S.Ct. at 2087 (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962)). It must also be claimed that the procedural error prejudiced the defendant in that he was actually unaware of the consequences of his plea decision and, if properly advised, would not have pleaded guilty. Id.; see United States v. Crook, 607 F.2d 670, 672 (5th Cir.1979);...