United States v. Gonzalez-Negron , 892 F.3d 485 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1302
UNITED STATES,
Appellee,
v.
JESUS R. GONZALEZ-NEGRON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Lynch, Circuit Judge,
Souter, Associate Justice,
and Stahl, Circuit Judge.
Lisa Aidlin on brief for appellant.
Kelly A. Zuzman, Assistant United States Attorney, Rosa
Emilia Rodríguez-Vélez, United States Attorney, and Amy E.
Potter, Assistant United States Attorney, on brief for appellee.
June 13, 2018

Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
SOUTER, Associate Justice. The defendant stands
convicted of possessing a controlled substance with intent to
distribute it, 18 U.S.C. § 841(a)(1), and possessing a firearm
in furtherance of a drug trafficking crime, 18 U.S.C.
§ 924(c)(1)(A). His convictions rest on guilty pleas entered
under an agreement that called for dismissal of other charges,
including one of possessing a machine gun in furtherance of a
drug-trafficking crime, which carries a mandatory 30-year
minimum sentence, 18 U.S.C. § 924(c)(1)(B)(ii). He was
sentenced to imprisonment for 132 months, that being within the
period the Government was permitted to recommend under the terms
of the plea agreement.
While he was before the district court, he raised no
timely objection to the findings of guilt or to the sentence,
but he now appeals, arguing that his conviction on the gun
charge is invalid owing to the district court's acceptance of
his plea despite the court's failure to satisfy Rule 11 of the
Federal Rules of Criminal Procedure in two closely related
respects. One provision of the Rule required the court to
determine that there be a factual basis that would justify a
finding at trial that the gun possession was in furtherance of
the drug crime, see Fed. R. Crim. P. 11(b)(3); under the other
provision, the court was obliged to ensure that the defendant
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understood the legal nature of possession-in-furtherance to
which he pleaded, Fed. R. Crim. P. 11(b)(1)(g). Because the
claims go to the validity of the plea, we do not find them
barred by a waiver of appeal rights that was contained in the
plea agreement. But because the defendant failed to raise the
claims in the trial court, we apply the plain error standard of
review, under which he is not entitled to relief.
A demonstration of plain error "sufficient to
undermine confidence in the outcome of the proceeding," United
States v. Dominguez Benitez, 542 U.S. 74, 83 (2004) (internal
quotation marks omitted), requires a defendant to show that the
trial court committed error, which was plain, and which affects
the defendant's substantial rights. See United States v. Olano,
507 U.S. 725, 732 (1993). Even then, the error does not require
corrective action unless the reviewing court so exercises
discretion upon finding that the error "seriously affects the
fairness, integrity or public reputation of judicial
proceedings." Id. The hurdle is a high one.
We look first at the adequacy of the Government's
demonstration in support of the plea that there was a factual
basis for the gun charge. "The necessary showing . . . is
fairly modest": the Government need not "support every element
of the charged crime by direct evidence," or demonstrate that
the defendant is guilty beyond a reasonable doubt. United
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States v. Ramos-Mejía, 721 F.3d 12, 16 (1st Cir. 2013). Rather,
"the government need only show a rational basis in fact for the
defendant's guilt." Id. "In other words, there must be some
basis for thinking that the defendant is at least arguably
guilty." Id. (internal quotation marks omitted).
To violate § 924(c)(1)(A), the defendant must have
possessed the gun "in furtherance" of his drug dealing, not
merely in connection with his commission of a drug offense, but
"to advance or promote" it. United States v. Gonsalves, 859
F.3d 95, 111 (1st Cir. 2017); see H.R. Rep. No. 105-344 (1997),
1997 WL 668339, at *12. "In assessing whether a sufficient
nexus exists, we consider several factors: whether the firearm
was loaded, whether the firearm was easily accessible, the
proximity of the firearm to the drugs, and the surrounding
circumstances." United States v. Pena, 586 F.3d 105, 113 (1st
Cir. 2009). We conclude that any insufficiency of particularity
required to satisfy Rule 11(b)(3) on the offense charged here
was far from plain.
In this case, the defendant's gun was found in the
bedroom closet of his apartment, and his stash of drugs was
hidden in the kitchen. As the defendant argues, "[t]he mere
presence of a firearm . . . where the drug offense occurred is
insufficient" to demonstrate possession "in furtherance," at
least as a general rule. United States v. Bobadilla-Pagán, 747
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F.3d 26, 35 (1st Cir. 2014). And the circumstances may require
close proximity of a stored gun and drugs in order to support an
inference of intent to advance or promote unlawful drug
activity. See United States v. Rios, 449 F.3d 1009, 1011-14
(9th Cir. 2006). Hence if the only facts ostensibly adduced
here to show "in furtherance" were the drugs and a conventional
gun far apart in the same apartment, existing case law furnishes
at least a serious argument that there would have been error in
accepting the guilty plea without a showing of more specific
facts indicating intent to further the underlying drug dealing.
Although this is the very argument that the defendant
makes, it fails to account for a serious response to which it is
vulnerable on the facts of this case. Given the undisputed
adequacy of the Government's proffer to demonstrate that the
defendant was a drug dealer, a further specific fact in the
record is obviously significant: the weapon in question was not
just any gun, but a pistol that had been converted from semi-
automatic (as manufactured) to fully automatic, that is, to a
machine gun. The destructive capacity of the gun is relevant
circumstantial evidence of its purpose, see United States v.
Felton, 417 F.3d 97, 105 (1st Cir. 2005), and the legal status
of machine gun possession is particularly instructive on this
point. Because possession of a machine gun is criminal per se
except for certain very limited exceptions not relevant here,
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see 18 U.S.C. § 924(o), the law unequivocally precludes any
option to keep the gun for a lawful purpose, and supports the
likelihood that the actual purpose was unlawful: here,
furthering the defendant’s drug crime. So does the fact that
the machine gun was loaded and within the same residence as the
drugs. See Pena, 586 F.3d at 113.
In sum, the facts on record, including the particular
facts of the loaded machine gun's exceptional destructive
capacity and the illegality of its possession, are at least
arguably sufficient to satisfy the requirement of demonstrating
on the record a factual basis for the "in furtherance" element
as required under Rule 11. If there is thought to be any
inadequacy on this point, it did not amount to error that could
be treated as plain.
Much of what we have said has a bearing on the
defendant's second claim of Rule 11 error, that the court failed
to address him with enough care to determine that he understood
the nature of the "in furtherance" charge to which he was
pleading guilty. It is true that in his colloquy with the
defendant before accepting the guilty pleas, the trial judge did
not expressly invoke the definition of the term as meaning to
intend to advance or promote the underlying crime. But, again,
this is not tantamount to any plain failure to show on the
record that the defendant understood the meaning of "in
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furtherance" to which he was pleading. The concept of
furtherance is not "esoteric," see Mack v. United States, 635
F.2d 20, 25 (1st Cir. 1980), and the defendant's acknowledgement
before the court that the allegations were true is itself good
evidence that he understood this element of the charge, see
United States v. Cotal-Crespo, 47 F.3d 1, 6 (1st Cir. 1995).
Moreover, the defendant has failed "to show a reasonable
probability that, but for the error, he would not have entered
the plea." Dominguez Benitez, 542 U.S. at 76. In particular,
at the time the defendant entered his plea, he was facing
another charge that carried a 30-year mandatory minimum term
(possession of a machine gun in furtherance of a drug-
trafficking crime). The defendant's plea allowed him to avoid
conviction on that charge and to obtain a much lower sentence.
The defendant points to nothing in the record to indicate that a
more detailed explanation of the "in furtherance" element would
have led him not to plead guilty. Hence, the court's failure to
enquire further in expressly definitive detail was at most one
of form, but not one that left the record blank on the
defendant's understanding of the statutory sense of "in
furtherance." There was no plain error.
Although the preceding conclusions determine the
results of the appeal, we add that our reasoning would also be
to the point in addressing the fourth element of plain error
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analysis, whether any error seriously compromised the fairness,
integrity or public reputation of the judicial process. It is
enough to say at this point that no such compromise is evident
on the record of the pleas in this case. That record is far
more likely to convince a reader that the defendant correctly
understood the meaning of the statutory elements he was
admitting and consequently should be held to his plea entered in
open court that he possessed his gun to further his criminal
enterprise.
Affirmed.
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