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USCA1 Opinion
December 23, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 91-2249
UNITED STATES OF AMERICA,
Appellee,
v.
RUBEN E. ZORRILLA,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, U.S. District Judge]
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Before
Torruella, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Brody,* District Judge.
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Jeffrey L. Baler for appellant.
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Margaret E. Curran, Assistant United States Attorney, with
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whom Lincoln C. Almond, United States Attorney, and Kenneth P.
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Madden, Assistant United States Attorney, were on brief for
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appellee.
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* Of the District of Maine, sitting by designation.
TORRUELLA, Circuit Judge. In this appeal, appellant
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alleges that the district court erred in determining that he
entered a guilty plea voluntarily and knowingly, and in failing
to establish a factual basis for the plea. Due to these errors,
appellant asks us to vacate his plea so that he may plead anew.
We cannot grant appellant the relief he seeks and we thus affirm
the actions of the district court.
FACTS
FACTS
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In April 1991 police obtained a search warrant for
appellant's apartment in Providence, Rhode Island, which
appellant shared with Sophia Soto, his girlfriend. When the
police entered the home they found 125.68 grams of cocaine, a
loaded pistol, cash, and other items. Appellant confessed to a
government agent that the firearm belonged to him.
Appellant and Soto subsequently were charged with
conspiracy to distribute and to possess with intent to distribute
cocaine under 21 U.S.C. 846, possession with intent to
distribute cocaine under 21 U.S.C. 841(a)(1) and 18 U.S.C. 2,
and possession of a firearm during and in relation to a drug
trafficking charge under 18 U.S.C. 924(c)(1). At his initial
appearance, appellant pled not guilty to the charges.
Appellant later asked to change his plea pursuant to an
agreement with the government. Under the agreement appellant
would plead guilty to each charge, and in return the government
would recommend the minimum sentence. Additionally, the
government would not call appellant to testify against co-
defendant Soto.
At the change of plea hearing the district court judge
announced that he would ask appellant a number of questions
concerning the plea. The judge also informed appellant that if
he did not understand anything he should inform the judge. An
interpreter aided appellant, who is a citizen of the Dominican
Republic.
The district court first asked appellant about his
educational background, and appellant replied that he completed
one year of high school in the Dominican Republic.1 The judge
also asked whether appellant had taken any drugs or alcohol
within the previous 24 hours, and appellant denied doing so.
Appellant's counsel then assured the court that appellant
understood the proceedings and was acting voluntarily. Appellant
also expressed satisfaction with counsel's representation.
The judge proceeded to inform appellant of the rights
he would waive by pleading guilty, and asked whether appellant
understood these rights. The judge discussed individually the
right to trial by jury, the need for a unanimous vote by the
jury, the existence of a presumption of innocence, and other
relevant rights. Appellant affirmed that he understood each of
these rights and his assent to waive them.
Appellant then stated that he understood the charges
against him, but that he wanted the judge to review the maximun
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1 In spite of this answer, a dispute exists as to how much
education appellant has completed. The presentence report states
that appellant completed some college education in the Dominican
Republic.
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sentences. The district court judge thus recited the maximum
allowable sentence on each count, asking after his recitation on
each count "Do you understand that?" Appellant responded
affirmatively as to each count.
The district court judge then asked appellant "Would
you tell me in your own words what you understand the charges to
be? Do you know what the charges are?" In response, appellant
summarized each of the three charges. The judge himself then
summarized each charge, again asking appellant whether he
understood each charge. The judge also determined that counsel
explained to appellant that the plea agreement was not binding
upon the court, and that appellant could not revoke his plea if
the court imposed a higher sentence than the minimum. The judge
once again summarized the charges, and at this point accepted the
guilty plea.
Thereafter a probation officer prepared a presentence
report containing a statement signed by appellant describing the
crimes and an offense level recommendation. The district court
judge sentenced appellant in accordance with the government's
recommendations. The judge imposed the minimum sentence allowed
for appellant's offense level, and ordered that upon completion
of the prison term appellant would participate in a substance
abuse program, pay the costs of supervised release, and be
surrendered to the Immigration and Naturalization Service.
LEGAL ANALYSIS
LEGAL ANALYSIS
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Appellant alleges two errors by the district court.
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Appellant first contends that the district court failed to ensure
that appellant understood the nature of the charge underlying his
plea, in violation of Fed. R. Crim. P. 11(c)(1).2 Appellant
next contends that the district court judge failed to establish a
factual basis for the guilty plea at the change of plea hearing,
in violation of Fed. R. Crim. P. 11(f) and 11(g).3 On this
basis, appellant urges us to vacate his plea and allow him to
plead again. As to appellant's first argument, we note that
"[t]here is no talismanic test" for ensuring compliance with this
rule. United States v. Allard, 926 F.2d 1237, 1245 (1st Cir.
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1991). We must look at the circumstances of the case to
determine whether the district court informed the defendant of
the charges, and determined that the defendant understood them.
Id. at 1244.
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In this case, we are struck with the district court
judge's thorough explanation of the charges and searching inquiry
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2 This rule states that "[b]efore accepting a plea of guilty or
nolo contendere, the court must address the defendant personally
in open court and inform the defendant of, and determine that the
defendant understands, the following: (1) the nature of the
charge to which the plea is offered . . . ." Fed. R. Crim. P.
11(c)(1).
3 Rule 11(f) states that "[n]otwithstanding the acceptance of a
plea of guilty, the court should not enter a judgment upon such
plea without making such inquiry as shall satisfy it that there
is a factual basis for the plea." Fed. R. Crim. P. 11(f).
Rule 11(g) states that a "verbatim record of the proceedings
at which the defendant enters a plea shall be made" including
"the court's advice to the defendant, the inquiry into the
voluntariness of the plea including any plea agreement, and the
inquiry into the accuracy of a guilty plea." Fed. R. Crim. P.
11(g).
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into appellant's understanding of them. Indeed, appellant knew
to ask the judge about an area which confused him -- the maximum
sentences which could be imposed on him. When the judge recited
the maximum sentences, appellant indicated that he understood
them. Given the district court judge's repeated summaries of the
charges and efforts to ensure appellant's full understanding of
them, we cannot say that the district court judge failed to
comply with the requirements of Rule 11(c)(1) in determining that
appellant understood the charges. We therefore reject
appellant's first argument.
As to appellant's second argument, the government
concedes that the district court failed to establish a factual
basis for the guilty plea at the hearing, and we acknowledge the
district court's failure in this regard. Nonetheless, we are
not convinced that this error gives appellant the right to plead
anew. Rule 11(h) states in unmistakable terms that "[a]ny
variance from the procedures required by this rule which does not
affect substantial rights shall be disregarded." Fed. R. Crim.
P. 11(h). Thus, absent a showing of prejudice to appellant, we
cannot grant relief. As we stated in Allard, "[m]ere technical
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violations . . . do not warrant setting aside a plea." Allard,
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926 F.2d at 1244. Appellant has failed to allege any prejudice
flowing from this error, and we can find none. The lack of
prejudice is fatal to appellant's claim.
In support of our conclusion that the failure to
establish a factual basis did not prejudice appellant, we note
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that a sufficient factual basis for the plea existed in the
record. See United States v. Adams, 961 F.2d 505, 512-13 (5th
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Cir. 1992) (information from presentence report and plea hearing
used to establish factual basis when district court failed to do
so at change of plea hearing). Information derived from the
presentence report and probable cause hearing reveals that
appellant's conduct satisfied the elements of the crimes charged.
This information includes appellant's own signed confession and
evidence presented at the probable cause hearing linking
appellant to the cocaine and firearm.
As appellant has suffered no concrete prejudice other
than entering a plea he now regrets, we cannot set his plea
aside.
Affirmed.
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Document Info
Docket Number： 91-2249
Filed Date： 12/23/1992
Precedential Status： Precedential
Modified Date： 9/21/2015