United States v. Pimentel ( 2008 )

United States Court of Appeals
For the First Circuit
No. 07-1512
UNITED STATES OF AMERICA,
Appellee,
v.
PEDRO PIMENTEL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Lipez, Circuit Judges.
Luis A. Guzmán-Dupont, for appellant.
Thomas F. Klumper, Assistant United States Attorney, with whom
Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, were on brief for appellee.
August 21, 2008
TORRUELLA, Circuit Judge. Pedro Pimentel was indicted on
six counts of conspiracy to import with the intent to distribute
drugs into the United States. He pled guilty on five counts, and
he was sentenced to a total of 180 months' imprisonment. Pimentel
argues that the district court erred in accepting his plea because
there was no factual basis for it. He also argues that the
district court erred by not properly instructed him as to Count
Five. After careful consideration, we affirm Pimentel's conviction
and the district court's judgment.
I. Background
Pimentel, a citizen of the Dominican Republic, was
indicted, along with ten co-defendants, for conspiracy and other
drug-trafficking-related crimes. The Government had evidence that
on March 15, 2005, Pimentel met with other persons in Isla Verde,
Puerto Rico to coordinate shipments of drugs into the United States
from the Dominican Republic; two weeks later, Pimentel met with one
of his co-defendants and other persons in the Dominican Republic to
coordinate the importation of cocaine into the United States. The
Government also had evidence of Pimentel and his co-defendants'
involvement with drugs shipped in June and September of 2005.
Pimentel was arrested on October 27, 2005, by the Drug
Enforcement Administration as he attempted to pick up the drug
shipments. He was indicted for conspiracy to import into the
United States over five kilograms of cocaine, conspiracy to possess
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with the intent to distribute over five kilograms of cocaine,
aiding and abetting in the possession of a weapon in furtherance of
a drug trafficking offense, distribution of a detectable amount of
heroin, and a forfeiture count -- all in violation of 21 U.S.C.
§§ 963, 841(a)(1), 846, and 853(p) and 18 U.S.C. §§ 924(c)(1)(A)
and 2, respectively. On October 5, 2006, he entered a straight
plea on Counts One through Five of the superseding indictment. He
was sentenced on February 28, 2007, to 120 months' imprisonment on
Counts One, Two, Three, and Five, to be served concurrently. Count
Six was a forfeiture allegation. He was sentenced to sixty months'
imprisonment as to Count Four, to be served consecutively to Counts
One, Two, Three, and Five, for a total prison term of 180 months.
The court imposed a supervised release term of five years on Counts
One, Two, Three, and Five, to be served concurrently. The court
also imposed a special monetary assessment of $100.00 on each count
for a total of $500.00. Pimentel appeals his plea and the
conviction as to Count Five.
II. Discussion
A. Standard of Review
Pimentel did not object to the alleged errors below;
thus, we will reverse only upon a showing of plain error. See
United States v. Rodríguez-León, 402 F.3d 17, 22-23 (1st Cir. 2005)
(citing United States v. Olano, 507 U.S. 725, 732 (1993)). To
satisfy the plain error standard, the defendant must show (1) an
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error (2) that was "'clear and obvious,'" (3) which affected his
substantial rights, and (4) seriously undermined the "'fairness,
integrity, or public reputation of judicial proceedings.'" United
States v. Jimínez, 498 F.3d 82, 85 (1st Cir. 2007) (quoting United
States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)). The burden is
on the defendant to demonstrate that the outcome would likely have
been different if the error had not occurred. See United States v.
Mescual-Cruz, 387 F.3d 1, 7 (1st Cir. 2004). Pimentel "can prevail
. . . only if he demonstrates a substantial defect in the Rule 11
proceeding itself." United States v. Piper, 35 F.3d 611, 613-14
(1st Cir. 1994) (citing United States v. Mateo, 950 F.2d 44, 45
(1st Cir. 1991) and United States v. Parra-Ibáñez, 936 F.2d 588,
593-94 (1st Cir. 1991)).
B. Rule 11
Pimentel argues that his guilty plea was not given
voluntarily, willingly, or intelligently, and is, therefore,
invalid. See United States v. Pizarro-Berríos, 448 F.3d 1, 4 (1st
Cir. 2006). He also argues that he made a statement at his
sentencing hearing that was an assertion of his innocence. The
record does not support these arguments.
Rule 11 "establishes a procedure for district courts to
ensure that a plea of guilty is constitutionally valid." United
States v. Medina-Román, 376 F.3d 1, 2 (1st Cir. 2004). "Before the
court accepts a plea of guilty . . . the defendant [is] placed
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under oath, and the court must address the defendant personally in
open court." Fed. R. Crim. P. 11(b)(1). The district court then
informs the defendant of his rights and makes a determination that
the defendant understands his rights. See id. Rule 11 has three
core concerns that guide our review of whether a plea meets its
requirements: "(1) absence of coercion, (2) understanding of the
charges, and (3) knowledge of the consequences of the plea."
Rodríguez-León, 402 F.3d at 24 (citing United States v. Isom, 85
F.3d 831, 835 (1st Cir. 1996)).
Rule 11 also requires the district court to determine
whether there is a factual basis for a guilty plea. See Fed. R.
Crim. P. 11(b)(3); United States v. Skerret-Ortega, 529 F.3d 33, 38
(1st Cir. 2008). "When determining whether a sufficient factual
basis exists to support a guilty plea, the question before the
court 'is . . . whether there is enough evidence so that the plea
has a rational basis in facts that the defendant concedes or that
the government proffers as supported by credible evidence.'"
United States v. Delgado-Hernández, 420 F.3d 16, 27 (1st Cir. 2005)
(quoting United States v. Gandía-Maysonet, 227 F.3d 1, 6 (1st Cir.
2000)). The district court need not be convinced beyond a
reasonable doubt that an accused is guilty. See Skerret-Ortega,
529 F.3d at 38.
We have repeatedly said that for the acceptance of a
guilty plea to be valid under Rule 11, the plea colloquy need not
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be perfect. See United States v. Padilla-Galarza, 351 F.3d 594,
598 (1st Cir. 2003); United States v. Cotal-Crespo, 47 F.3d 1, 4-5
(1st Cir. 1995) ("What is critical is the substance of what was
communicated by the trial court, and what should reasonably have
been understood by the defendant, rather than the form of the
communication."); United States v. Raineri, 42 F.3d 36, 45 (1st
Cir. 1994). Pimentel's attempted retraction after his guilty plea
also faces a high hurdle on appeal because he has "no absolute
right to retract his plea." United States v. Pellerito, 878 F.2d
1535, 1537 (1st Cir. 1989) (citations omitted); see also
Miranda-González v. United States, 181 F.3d 164, 165 (1st Cir.
1999).
The record indicates that although Pimentel was initially
hesitant about the plea, the court adequately advised him on five
separate occasions that he had an absolute right not to plead
guilty and to go to trial. In response to his unease, the
Government advised the court that it had an undercover police
officer who would testify at trial regarding Pimentel's involvement
in the crimes he was charged with committing. After speaking with
his counsel, Pimentel determined that he would plead guilty. At
the change-of-plea ("COP") hearing Pimentel also acknowledged that
he was not forced, coerced, or intimidated into pleading guilty and
that he was satisfied with his counsel's representation. At the
sentencing hearing, Pimentel did not request the withdrawal of his
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guilty plea, though he did express some concerns. He claimed that
there was an alleged missing tape-recording that could reflect that
he was not willing to take part in the conspiracy. He also claimed
that the drugs and firearms seized during the arrest did not belong
to him.
After Pimentel made those claims, the district court
advised him that he was not charged as the owner of the drugs or
the weapon, but that he was charged with conspiracy. The district
court determined that Pimentel's claims of exculpatory evidence
lacked credibility because he had previously admitted to the
conspiracy and admitted that there was a gun in the vehicle when he
went with his co-defendant to pick up the drugs. Pimentel's lawyer
also ensured the district court that the Government had provided
Pimentel with all of the video and audio evidence that was
available. Pimentel does not contest the fact that he was involved
in picking up the drugs or that his co-defendant possessed a
firearm during the commission of the drug offense. When the
Government presented facts at the COP hearing in relation to the
drug and firearms offenses, Pimentel admitted to the court that he
agreed to the factual proffer presented by the Government. From
our reading of the record, the district court did indeed inform
Pimentel of his rights under Rule 11.
Pimentel argues that the district court did not inform
him of the overt acts in the counts on which he was pleading.
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Overt acts, however, are not elements of drug conspiracy offenses,
and the district court was not required to cite or address them in
its explanation of the conspiracy charges. See United States v.
Shabani, 513 U.S. 10, 13-14 (1994); United States v. Vega-Figueroa,
234 F.3d 744, 754 (1st Cir. 2000). Furthermore, the Government
need not prove overt acts in order to convict a defendant of a drug
conspiracy offense. See United States v. Bello-Pérez, 977 F.2d
664, 669 (1st Cir. 1992) ("The government is not required to plead
or prove any overt act in furtherance of a section 846
conspiracy."). The district court adequately and fully advised
Pimentel concerning the nature of the five offenses charged in the
superseding indictment; Pimentel acknowledged that he had discussed
the charges with his attorney, understood the allegations, and
chose to plead guilty.
Pimentel also argues that the district court failed to
advise him of his rights under Rule 11(b)(1)(A). When the district
court accepts a plea agreement, it must advise a defendant that the
Government has a "right, in a prosecution for perjury or false
statement, to use against the defendant any statement that the
defendant gives under oath." Fed. R. Crim. P. 11(b)(1)(A). The
district court did not advise. But in United States v. Vonn, 535
U.S. 55 (2002), the Supreme Court determined that when a defendant
fails to object to a Rule 11 error in a trial court's guilty plea
colloquy, the error is only reversible upon a showing that such
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error was plain and affected the defendant's substantial rights,
instead of the harmless error standard stated in Rule 11(h). Id.
at 59; see also United States v. Borrero-Acevedo, 533 F.3d 11, 15
(1st Cir. 2008). When determining whether a defendant's
substantial rights were affected, we "consult the whole record."
Vonn, 535 U.S. at 59. Pimentel failed to argue or present facts on
appeal that his rights were substantially affected by the court's
error. This argument is therefore waived. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
1. Count Five
The Government acknowledges that the district court erred
with respect to Count Five because it did not advise Pimentel of
the proper statutory penalty. The district court should have
advised Pimentel of the proper penalty but addressed Count Five
like the other drug offenses. The Government asserts, though, that
Pimentel fails to argue that his substantial rights were affected;
nor can he show that his substantial rights were affected. We
agree. The error made no difference in Pimentel's sentence. He
received the fifteen years' imprisonment that the Government said
it would recommend. See United States v. King, 234 F.3d 126, 127
(2d Cir. 2000) ("[W]e have only reversed a judgment of conviction
for a violation of Rule 11(e)(2) when the defendant received a
higher sentence than that recommended by the government, or when
there were other factors to 'tip the scale' in favor of reversal.")
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(citation omitted). The district court and Pimentel's lawyer
advised him of the sentence range. The record reflects that
Pimentel acknowledged his understanding of his possible sentence.
He then received that sentence. Therefore, his claim as to Count
Five fails.
C. Rejecting Guilty Plea Before Sentencing
Pimentel argues that entering a guilty plea does not
waive any challenges he might have to the acceptance of the plea.
Rule 11 allows a defendant to withdraw a guilty plea, for any
reason, "after the court accepts the plea, but before it imposes
sentence if, the defendant can show a fair and just reason for
requesting the withdrawal." Fed. R. Crim. P. 11(d)(2)(B).
Pimentel admits that he did not file a motion to withdraw his
guilty plea before sentencing. His claim therefore is without
merit, and we need go no further.
D. Conviction for "Detectable Amount of Heroin"
Finally, Pimentel argues that his conviction under 21
U.S.C. § 841(a)(1) involving a mixture or substance containing a
detectable amount of heroin, without more, was entered for an
offense for which there is no Sentencing Guideline. He argues that
the indictment is unreasonable and plain error because it did not
contain a specific weight of heroin and should be declared invalid.
He maintains that the conviction under Count Five without a
specific weight of heroin is plain error. Although the D.C.
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Circuit has held that a related subsection of § 841 "contains no
threshold drug-quantity requirement and, therefore, it was not
error to indict [the defendant] for possessing 'a detectable
amount' but omit mention of the specific quantity," United States
v. Gillespie, 436 F.3d 272, 276 (D.C. Cir. 2006), we do not need to
decide this issue today because Pimentel did not properly raise
this argument in the district court.
Federal Rule of Criminal Procedure 12(b)(3) requires that
a claim that an indictment has a "defect," such as being
insufficiently specific, be raised prior to trial. Fed. R. Crim.
P. 12(b)(3)(B); see also United States v. DiGregorio, 605 F.2d
1184, 1193 n.10 (1st Cir. 1979). If the claimed defect is not
jurisdictional, the defendant's failure to raise the Rule 12(b)(3)
claim constitutes a waiver from which this Court will grant relief
only for good cause. See Fed. R. Crim. P. 12(e); United States v.
Mack, 892 F.2d 134, 136 (1st Cir. 1989).
The alleged error is not a jurisdictional defect because
the district court has subject matter jurisdiction over "all
offenses against the laws of the United States." 18 U.S.C. § 3231;
United States v. Lussier, 929 F.2d 25, 27 (1st Cir. 1991). This
category of offenses includes crimes defined in Title 21. See 21
U.S.C. § 841. The Supreme Court has determined that indictment
defects are not jurisdictional, and thus, the omission of specific
drug quantities in a 21 U.S.C. § 846 drug conspiracy offense was
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not a jurisdictional defect. United States v. Cotton, 535 U.S.
625, 631 (2002); see also United States v. López, 300 F.3d 46, 59
n.5 (1st Cir. 2002). Moreover, we have previously held that drug
quantity is not an element of a § 841 offense. See United States
v. Malouf, 466 F.3d 21, 26 (1st Cir. 2006); United States v.
Goodine, 326 F.3d 26, 32 (1st Cir. 2003). The failure to state the
specific drug quantity affects only the maximum punishment possible
for the offense and not the offense charged. See 21 U.S.C.
§ 841(b); Goodine, 326 F.3d at 32-33. Pimentel's claim, therefore,
is without merit.
III. Conclusion
For the reasons stated above, we affirm the guilty plea
and the conviction as to Count Five.
Affirmed.
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