United States v. Figueroa-Ocasio ( 2015 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 12-1965
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    DAVID FIGUEROA-OCASIO,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. José Antonio Fusté, U.S. District Judge]
    Before
    Torruella, Kayatta and Barron,
    Circuit Judges.
    Cathryn A. Neaves, on brief for appellant.
    Francisco A. Besosa-Martínez, 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.
    October 16, 2015
    KAYATTA, Circuit Judge.      The district court in this case
    accepted the defendant's straight plea of guilty to firearms
    charges without taking all the steps necessary to determining that
    the plea was entered intelligently and knowingly.             The district
    court also employed an erroneous illustration of the requisite
    mens rea in order to defuse the defendant's suggestion that he
    lacked the knowledge needed to support a conviction, thereby
    leaving us with a record in which it appears that a person pleaded
    guilty because he was misinformed about the elements of the crime.
    Finally, the district court also committed procedural error at
    sentencing by incorrectly calculating the applicable sentencing
    guideline range.        We therefore vacate the conviction and the
    sentence and remand for proper consideration of the proposed plea
    and such further proceedings as are then called for.
    I.    Background
    David Figueroa-Ocasio ("Figueroa") and three others were
    charged in a four-count indictment alleging various gun offenses-
    -namely, violation of 
    18 U.S.C. § 922
    (g)(1) (prohibited person in
    possession   of    a   firearm);   §   922(j)   (possession   of   a   stolen
    firearm);    §    922(o)   (possession    of    a   machine   gun);    and     §
    922(q)(2)(A) (possession of a firearm in a school zone).                     The
    charges arose from a traffic stop that occurred at 2:20 a.m. on
    January 9, 2012, in San Juan, Puerto Rico.             At the time of the
    - 2 -
    stop, Figueroa was seated as a passenger behind the driver of the
    vehicle.     The record does not indicate who owned the vehicle.
    Police found inside the vehicle three firearms, all Glock pistols-
    -two during the traffic stop and one later, during an inventory at
    the municipal police precinct.1        It is not clear where the police
    found the first firearm, later determined to have been stolen,
    although the record suggests it may have been stashed between the
    vehicle's center console and the front seat.2         The second firearm
    was found somewhere "in the floor of the car." The record provides
    no evidence as to where in the vehicle the police found the third
    firearm, which had been adapted to fire in fully automatic mode.
    None of the firearms were found on the persons of any of the
    defendants.    There was no evidence as to who owned the firearms.
    Although the record states that the authorities conducting the
    search asked whether any of the defendants possessed firearms
    licenses, the record does not indicate how the defendants answered.
    Figueroa   was   charged    with   possession   of   all   three
    firearms in count 1, the "felon in possession" count.            The other
    defendants were charged with aiding and abetting.            In the other
    1   The inventory search also turned up two loaded magazines.
    2 The record states that a "firearm's magazine" was found
    "between the center console and the front passenger's seat," but
    it later appears to refer to this magazine as "a Glock pistol,
    Model 27, serial number DBW749 . . . reported stolen on December
    26, 2011[.]" It is not clear whether both a magazine and a firearm
    were found between the center console and the front seat.
    - 3 -
    three counts, all four defendants were charged with possession of
    the respective firearms and with aiding and abetting.
    II.   The Change of Plea Hearing
    On March 1, 2012, Figueroa appeared in the district court
    to enter a straight plea of guilty to the indictment.3    The hearing
    was conducted with the assistance of a court interpreter.
    The hearing commenced uneventfully.       Figueroa made it
    clear, both through counsel and personally, that he wanted to plead
    guilty.    Defense counsel stated that his client "expressed to us
    that he would plead guilty rather than go to trial."     The district
    court then confirmed with counsel that Figueroa was "pleading
    guilty to all the counts[,]" a "[s]traight plea."     Defense counsel
    confirmed that Figueroa was "pleading guilty, period."      Next, the
    court asked Figueroa directly whether he had "made a conscious
    decision to plead guilty to every single count of the Indictment.
    . . .     Is that what you want to do, sir?"     Figueroa answered,
    "Yes." The court asked Figueroa whether he was competent to plead,
    whether he believed that defense counsel was competent, and whether
    he had had ample time to discuss his case with counsel.     The court
    3  The other defendants pleaded guilty separately, each
    pursuant to largely identical plea agreements. The offense facts
    stated in these plea agreements and in the subsequently filed
    presentence investigation reports are identical.
    - 4 -
    did not directly ask Figueroa whether he was entering his plea
    voluntarily and of his own free will.
    The district court went on to advise Figueroa of certain
    rights "that are waived when [one] plead[s] guilty[,]" including
    the right to trial by jury, the right to be convicted only upon
    proof beyond a reasonable doubt, the presumption of innocence, the
    right to cross-examination, the right to testify, and the right to
    remain silent.     The court failed to advise Figueroa of the "right
    to plead not guilty, or having already so pleaded, to persist in
    that plea[,]" the "right to be represented by counsel--and if
    necessary have the court appoint counsel--at trial and at every
    other stage of the proceeding[,]" and the right "to compel the
    attendance of witnesses[.]"        Fed. R. Crim. P. 11(b)(1)(B), (D),
    (E).     The court concluded this initial colloquy by asking, "[D]o
    you still want to plead guilty in this case?"             Figueroa answered,
    "Yes."
    The district court then summarized the indictment.              The
    court summarized count 1 thus: "[Y]ou are a prohibited person, a
    convicted    felon,   and   you   were    in     possession   of   a   firearm."
    Summarizing count 2, the court stated, "[Y]ou possessed stolen
    firearms or you aided and abetted others in possessing stolen
    firearms."      The court then described count 3 as "the illegal
    possession of a machine gun or aiding and abetting others in the
    - 5 -
    possession of a machine gun."         Counsel interjected, "It's an
    automatic gun," whereupon the court amended its explanation of the
    charge, stating, "It's an automatic gun, not a machine gun."4
    Finally, the court described count 4 as charging that "firearms
    were possessed in a school zone or that you aided and abetted
    others in possessing firearms in a school zone."       The court asked
    Figueroa whether he understood "that those are basically the
    charges," although it did not ask whether Figueroa understood the
    charges   themselves.   The   court   did   ask   Figueroa   whether   he
    understood that "the Government has to prove . . . who you are and
    your relationship to these facts alleged in the Indictment so that
    we can make an association between the facts alleged and you."
    Figueroa agreed that he understood.    The court also asked Figueroa
    whether he understood that the Government had the burden of proving
    that all the actions alleged in the indictment "were entered into
    by you knowingly, willfully and unlawfully . . . with a bad purpose
    to disobey or disregard the law, and not because of mistake,
    accident, or other innocent reason. . . .            [Y]ou were doing
    something that the law forbids and you knew it."        Figueroa again
    agreed that he understood.
    4 Count 3 actually alleged that the defendants, "aiding and
    abetting each other, did knowingly and unlawfully possess, a
    machinegun . . . in violation of [
    18 U.S.C. § 922
    (o)]." 
    18 U.S.C. § 922
    (o)(1) makes it unlawful to transfer or possess a machine
    gun.
    - 6 -
    The   district   court     then    reviewed   in   detail   the
    Government's burden of proof as to each of the counts. With regard
    to count 2, possession of a stolen firearm, the following exchange
    occurred:
    THE COURT:    Then another -- Count Two
    would be that one of those firearms . . . had
    been shipped or transported in interstate
    commerce knowing or having reasonable cause to
    believe that the firearm had been stolen.
    Do you understand that?
    THE DEFENDANT:      He says he didn't know it
    was stolen.[5]
    THE COURT: You did not buy from an armory
    with a license for example?
    [DEFENSE COUNSEL]:     No.
    THE DEFENDANT:     No, no.
    THE COURT: So would it         be fair to say
    that there was a possibility       when you bought
    it or wherever you bought it        or found it or
    took it, God knows how it got      there, it could
    have been stolen?
    THE DEFENDANT:     Yes.
    5 It is not clear from the context to whom "he" refers; "he"
    could mean either a co-defendant, or Figueroa, if the interpreter
    was telling the court what Figueroa said, instead of translating
    Figueroa's statement word-for-word, as sometimes happens. Nothing
    in the record indicates that the other defendants were present at
    Figueroa's change of plea hearing, and there would have been no
    reason for them to be there, as they had change of plea hearings
    on different days.
    - 7 -
    With regard to count 4, alleging possession of a firearm
    in a school zone, the colloquy ran as follows:
    THE COURT: Okay. And . . . on top of
    that, you and the others unlawfully possessed
    in and [a]ffecting interstate commerce the
    firearms and ammunition that we have been
    talking about within a distance of 1,000 feet
    of the ground of the Sagrado Corazon Academy
    school. I guess it's in Santurce?
    THE DEFENDANT:   Yes.
    [DEFENSE COUNSEL]:   Yes.
    THE COURT: A place that you had reason
    to believe was a school zone.
    [DEFENSE COUNSEL]:  The client accepts
    that that happened.     He said it was a
    coincidence.
    THE COURT: But he knew there was a school
    there?    Everybody knows there's a school,
    Sagrado Corazon, in Santurce.      Well, it's
    common knowledge. You can see the school from
    the street.
    Do you understand that, sir?
    THE DEFENDANT:   Yes.
    The court subsequently summarized the indictment with a
    series of confusing questions that, as we explain in part IV.A.2
    of this opinion, eliminated the mens rea element from the charges
    and otherwise produced meaningless replies in an exchange that was
    typical of an apparently rushed and pro forma approach to the
    proceeding:
    - 8 -
    THE COURT: Okay. Do you have any doubt
    about the charges that you're pleading guilty
    to, possessing firearms, being a convicted
    felon? Possessing one of those firearms that
    happened to be stolen?     Possessing one of
    those firearms that happened to be an
    automatic firearm converted or otherwise, and
    it so happened all these firearms were
    possessed in a school zone?
    Do you have any doubt about that?
    THE DEFENDANT:       Si.
    THE COURT:     No doubt?
    THE DEFENDANT:       Yes.
    THE COURT: No doubt? Do you have a doubt
    or no doubt? No doubt?
    THE DEFENDANT:       No.
    The court did not explain aiding and abetting liability
    to Figueroa.
    Instead, the district court moved on to sentencing,
    explaining the possible penalties, including forfeiture, fines,
    and supervised release, for the charged offenses, and confirming
    that Figueroa understood.       The court also explained that some of
    the sentences could be consecutive and that a sentence could be
    imposed within, above, or below the range calculated under the
    Sentencing Guidelines or as determined by the court, within its
    discretion,    according   to   the    sentencing   statute.   Figueroa
    confirmed that he understood.
    - 9 -
    The Government then proffered the facts it would have
    offered at trial.    Entirely absent from the Government's proffer
    was any specific allegation of knowledge or intent as to any
    element of any of the charged offenses.          Also absent from the
    Government's proffer was any specific allegation that Figueroa was
    in possession or constructive possession of a firearm at any time
    or, for that matter, that he knew or had reasonable cause to know
    there were firearms in the vehicle.
    Upon    completion   of    the   Government's   proffer,   the
    district court continued its examination of Figueroa:
    THE COURT: Do you admit that these facts
    occurred as outlined by the prosecutor, sir?
    THE DEFENDANT:     Yes.
    THE COURT: So you, aided and abetted by
    others, or others aiding and abetting you,
    whatever way you want to call it, were in
    possession of these firearms in that car?
    THE DEFENDANT:     Yes.
    . . .
    THE COURT:    Do you still want to plead,
    sir?
    THE DEFENDANT:         (Nodding head up and
    down.)
    . . .
    THE COURT:    Well, I will accept your
    guilty plea to these four counts[.]
    - 10 -
    While the district court asked Figueroa whether he had
    been subjected to force, threats, or inducements to plead, and
    Figueroa denied having been, the court did not make an express
    finding on the record as to whether Figueroa's plea was knowing
    and voluntary, nor did it make a finding as to whether there was
    a sufficient factual basis for the plea.
    III.   The Sentencing Hearing
    A Presentence Investigation Report (PSR) was issued on
    May 2, 2012.       Applying the November 1, 2011, version of the United
    States Sentencing Guidelines Manual (USSG), the PSR grouped all
    four counts together under USSG § 3D1.2(a) because they involved
    the same transaction.            The PSR found a base offense level of 22
    under       USSG   §    2K2.1(a)(3),   because      the   offense   involved    a
    semiautomatic          firearm   capable   of    accepting   a   large   capacity
    magazine and Figueroa had committed the offense after a felony
    conviction for a crime of violence.               The PSR added 2 levels under
    USSG § 2K2.1(b)(1), because the offense involved 3 firearms and
    another 2 levels under USSG § 2K2.1(b)(4), because one of the
    firearms was reported stolen.6                  With a 2-level reduction for
    6
    Under Application Notes, comment 8(B), USSG § 2K2.1(b)(4)
    "applies regardless of whether the defendant knew or had reason to
    believe that the firearm was stolen[.]"
    - 11 -
    acceptance of responsibility, Figueroa's total offense level was
    24.
    The PSR assigned Figueroa 1 criminal history point for
    a   prior    conviction      and    an    additional   2   points     under   USSG
    § 4A1.1(d), because the instant offense had been committed while
    Figueroa was on probation.           A total of 3 criminal history points
    put Figueroa in Criminal History Category (CHC) II, yielding a
    guideline sentence range of 57 to 71 months' imprisonment.7
    The sentencing hearing was held on July 5, 2012. Defense
    counsel stated on the record that he had "no issues" with the PSR.
    After summarizing the facts as detailed at the change of plea
    hearing     and   in   the   PSR,   the     district   court   took   Figueroa's
    allocution.       The Government recommended a sentence of 71 months.
    The district court then requested that counsel join it
    in a side-bar conference to discuss the requirement under 
    18 U.S.C. § 924
    (a)(4) that any sentence imposed for violation of 
    18 U.S.C. § 922
    (q)--here, Figueroa's count 4--not run concurrently with any
    other term of imprisonment.              Grouping only counts 1–3, the court
    stated that the guideline range for the grouped counts was 57-71
    7The maximum statutory term of imprisonment for violation of
    
    18 U.S.C. § 922
    (g),(j), and (o), as alleged in counts 1 through 3,
    is 10 years' imprisonment. 
    18 U.S.C. § 924
    (a)(2). The maximum
    statutory term of imprisonment for violation of 
    18 U.S.C. § 922
    (q),
    as alleged in count 4, is 5 years. 
    18 U.S.C. § 924
    (a)(4).
    - 12 -
    months and, after initially implying that Figueroa's § 922(q)
    violation (count 4) carried a mandatory sentence of 60 months, the
    court later characterized 60 months as a "high end" sentence for
    a § 922(q) offense.     The court then calculated the consecutive
    sentence to be imposed for violation of 
    18 U.S.C. § 922
    (q),
    concluding in conformity with USSG § 2K2.5 that, given a total
    offense level of 6 for the § 922(q) violation and Figueroa's CHC
    of II, the guidelines range of imprisonment was 1-7 months.8
    Concurring with the Government's recommendation, the court imposed
    a sentence of 71 months' imprisonment for grouped counts 1–3 and
    a consecutive sentence of 7 months' imprisonment for count 4, the
    
    18 U.S.C. § 922
    (q) count, resulting in a total sentence of 78
    months' imprisonment.
    As we will explain, the district court erred in assuming
    that the requirement that count 4's sentence run consecutively
    prevented the court from including count 4 among the grouped
    counts.     In fact, the PSR had properly grouped all four counts
    together.    Moreover, the record gives reason to doubt that the
    district    court   recognized   that,   even   under   its   mistaken
    8 The court arrived at the total offense level by starting
    with the statutory base offense level of 6, adding 2 levels because
    Figueroa's specific § 922(q) violation was unlawful possession of
    a firearm in a school zone, and applying a 2-level reduction for
    acceptance of responsibility. See USSG § 2K2.5.
    - 13 -
    understanding of the grouping rules, a 78-month sentence would
    have been a high-end guidelines sentence.9
    Playing the role of a potted plant, defense counsel
    offered no objection throughout the proceedings, and then on appeal
    filed an Anders10 brief, which we rejected, ordering that the appeal
    proceed with counsel.
    IV.     Discussion
    Figueroa    argues   that    the     district    court     erred   in
    accepting his plea because the record does not show that his plea
    was entered intelligently and knowingly.          He also argues that the
    court committed procedural error by imposing a sentence contrary
    to the guidance provided by USSG §§ 2K2.5 and 3D1.1.                  Finally,
    Figueroa   alleges    ineffective    assistance     of     counsel.      These
    arguments were not raised below, so ordinarily, as Figueroa here
    concedes, we would review for plain error, see United States v.
    Pagán-Ferrer, 
    736 F.3d 573
    , 593 (1st Cir. 2013), cert. denied sub
    nom. Vidal-Maldonado v. United States, 
    134 S. Ct. 2839
     (2014);
    United States v. Borrero-Acevedo, 
    533 F.3d 11
    , 15 n.4 (1st Cir.
    9  At sidebar, the district court characterized "[s]even more
    months" for count 4 as "a bargain, if you think."
    10 In Anders v. California, 
    386 U.S. 738
     (1967), the Supreme
    Court noted that an attorney may, pursuant to certain procedural
    requirements, move to withdraw on appeal if the attorney concludes
    after a "conscientious examination" of the client's case that no
    non-frivolous grounds for appeal exist. 
    Id. at 744
    .
    - 14 -
    2008) (noting that the U.S. Supreme Court has confirmed that
    unpreserved claims of plea-process error are subject to plain error
    review (citing United States v. Vonn, 
    535 U.S. 55
    , 58–59, 61, 62
    n. 4 (2002); United States v. Gandia-Maysonet, 
    227 F.3d 1
    , 5 (1st
    Cir. 2000))).
    Inexplicably, however, the Government's brief does not
    respond to the issues presented in Figueroa's brief, including the
    allegations of error under Federal Rule of Criminal Procedure 11,
    which governs the plea process, and under USSG §§ 2K2.5 and 3D1.1,
    but responds rather to the issues raised in a previously filed
    Anders brief.   The Government also does not address what standard
    of review should apply. We have stated that "[w]hen the government
    fails to request plain error review, we, and many of our sister
    circuits, review the claim under the standard of review that is
    applied when the issue is properly preserved below." United States
    v. Encarnación-Ruiz, 
    787 F.3d 581
    , 586 (1st Cir. 2015) (citing
    United States v. Tapia–Escalera, 
    356 F.3d 181
    , 183 (1st Cir.
    2004)).   On the other hand, even if the Government had made an
    affirmative concession as to the standard of review, we would not
    be bound by it.   See Borrero-Acevedo, 
    533 F.3d at
    15 n. 3 (citing
    United States v. Mescual-Cruz, 
    387 F.3d 1
    , 8 n. 2 (1st Cir. 2004)).
    In any event, we believe Figueroa has met the more stringent plain
    error standard, and so that is the standard under which we proceed.
    - 15 -
    A.      The Sufficiency of the Plea
    1.        Legal standard
    To show plain error, a defendant must demonstrate "(1)
    'error,' (2) that is 'plain,' and (3) that 'affect[s] substantial
    rights.'    If all three conditions are met, an appellate court may
    then exercise its discretion to notice a forfeited error, but only
    if (4) the error 'seriously affect[s] the fairness, integrity, or
    public reputation of judicial proceedings.'"             Borrero-Acevedo, 
    533 F.3d at 15
     (alterations in original) (quoting Johnson v. United
    States, 
    520 U.S. 461
    , 467 (1997)); accord United States v. Padilla,
    
    415 F.3d 211
    , 218 (1st Cir. 2005) (en banc) (quoting United States
    v. Duarte, 
    246 F.3d 56
    , 60 (1st Cir. 2001)).
    "In applying plain error analysis in guilty plea cases,
    a defendant must, in order to demonstrate that his substantial
    rights were affected, 'show a reasonable probability that, but for
    the error, he would not have entered the [guilty] plea.'"                 United
    States v. Caraballo-Rodriguez, 
    480 F.3d 62
    , 69 (1st Cir. 2007)
    (alteration       in    original)    (quoting   United   States    v.   Dominguez
    Benitez, 
    542 U.S. 74
    , 83 (2004)); see also United States v.
    Delgado-Hernandez, 
    420 F.3d 16
    , 28 (1st Cir. 2005) (finding that
    deficiencies in the Government's factual proffer do not create
    plain    error    if     defendant   is   otherwise   aware   of   Government's
    evidence against him). "A defendant must thus satisfy the judgment
    - 16 -
    of the reviewing court, informed by the entire record, that the
    probability of a different result is sufficient to undermine
    confidence     in       the   outcome   of    the     proceeding."    Caraballo-
    Rodriguez, 
    480 F.3d at 69-70
     (quoting Dominguez Benitez, 
    542 U.S. at 83
    ); see also Ramirez-Burgos v. United States, 
    313 F.3d 23
    , 29
    (1st Cir. 2002) ("An error affects substantial rights if it was
    'prejudicial,' meaning that the error 'must have affected the
    outcome   of      the    district   court     proceedings.'"    (quoting   United
    States v. Olano, 
    507 U.S. 725
    , 734 (1993))).
    2.     The plea colloquy did not establish that
    Figueroa's plea was knowing and voluntary
    Federal Rule of Criminal Procedure 11 requires that the
    district court make the defendant aware of "the nature of each
    charge to which the defendant is pleading."                    Fed. R. Crim. P.
    11(b)(1)(G).       Indeed, "ensuring that the defendant understands the
    elements of the charges that the prosecution would have to prove
    at trial" is "a 'core concern' of Rule 11."                Gandia-Maysonet, 
    227 F.3d at 3
     (citations omitted).                And "reviewing courts have been
    willing to intervene" when, as here, an error in the plea process
    implicates that "core concern."              
    Id.
        In United States v. Gandia-
    Maysonet, for example, we vacated a plea as not knowing and
    voluntary when the district court and the plea agreement both
    misstated the scienter requirement for carjacking.                   
    Id.
     at 4–6.
    - 17 -
    We found the misstatement in Gandia to be obviously erroneous.
    See 
    id.
        The same is true in this case.
    Here, the court did not ensure that Figueroa understood
    what the Government needed to prove against him to support a
    conviction.     There was no plea agreement to evidence that Figueroa
    had reviewed and acknowledged prior to the hearing the nature of
    the charges and the significance of pleading guilty.                       At the
    hearing, the court did not ask Figueroa whether he had read the
    indictment, nor whether he had reviewed it with his attorney and
    understood it.11      The court muddied what thin record there was by
    repeatedly      asking   confusing,        compound,       and/or       internally
    contradictory questions and by failing to follow up sufficiently
    on   Figueroa's    denials     or    ambiguous     statements     regarding     the
    elements   of   the   charged       offenses.      Given   all    the   attendant
    circumstances, we believe the record leaves significant doubts
    about Figueroa's understanding of the nature of all the charges.
    Moreover,   the    plea    colloquy    itself     did   not   provide
    illumination.     The court did not adequately explain, and misstated
    the Government's burden in proving, the requisite mens rea.                 While
    the court explained in general terms, and Figueroa acknowledged he
    understood, that the Government had the burden to prove that the
    11The district         court     asked    only,   "You     have    seen   the
    indictment, correct?"
    - 18 -
    acts alleged in the indictment "were entered into by [Figueroa]
    knowingly, willfully and unlawfully . . . with a bad purpose to
    disobey or disregard the law, and not because of mistake, accident,
    or other innocent reason," the court's subsequent particularized
    explanations of the charges repeatedly stated a lesser burden.
    For instance, count 2, the "stolen firearms" charge,
    required proof that Figueroa "knew or had reasonable cause to
    believe that the firearm[] [was] stolen."     See United States v.
    Ridolfi, 
    768 F.3d 57
    , 64 (1st Cir. 2014) (citing 
    18 U.S.C. § 922
    (j)).   Figueroa, reacting to the court's explanation of count
    2, actually denied knowledge that the subject firearm was stolen.
    In response, the court posed an alternative notion of mens rea not
    found in the applicable statute, asking whether "there was a
    possibility when you bought it or wherever you bought it or found
    it or took it, God knows how it got there, it could have been
    stolen?"   Figueroa answered in the affirmative, and the court then
    moved on as if the answer were sufficient.   We are thus left with
    a record on which it appears that Figueroa denied knowing that the
    gun was stolen, yet was coaxed into thinking it sufficient that
    there was a mere possibility that it had been stolen.12
    12 It also is not clear from this exchange whether Figueroa
    was admitting he bought, took, or found the firearm, or that it
    was in the vehicle "God knows how[.]"
    - 19 -
    The district court also misstated the requisite mens rea
    with respect to count 4, "the school zone" count.                       Under 
    18 U.S.C. § 922
    (q)(2)(A),    "[i]t      shall     be   unlawful       for       any   individual
    knowingly to possess a firearm that has moved in or that otherwise
    affects    interstate      or   foreign    commerce      at    a    place      that   the
    individual knows, or has reasonable cause to believe, is a school
    zone."13    See United States v. Guzmán-Montañez, 
    756 F.3d 1
    , 12 (1st
    Cir. 2014) (defendant charged under 
    18 U.S.C. § 922
    (q)(2)(A) must
    have known or reasonably should have known he was in a school
    zone).     Figueroa did not admit, nor was there any proffer stating,
    that he possessed a firearm knowing or having reasonable cause to
    believe he was in a school zone.           At most, Figueroa indicated only
    that his presence in what turned out to be a school zone was a
    coincidence.      In response, the court again suggested that a
    standard less than personal knowledge or reasonable cause to
    believe    was   enough:    "But   he     knew   there    was       a    school   there?
    Everybody knows there's a school, Sagrado Corazon, in Santurce.
    Well, it's common knowledge.              You can see the school from the
    street.      Do you understand that, sir?"               Given the misdirected
    13A school zone is an area within school grounds or "within
    a distance of 1,000 feet from the grounds of a public, parochial
    or private school." 
    18 U.S.C. § 921
    (a)(25); see also United States
    v. Nieves–Castaño, 
    480 F.3d 597
    , 603–04 (1st Cir. 2007).
    - 20 -
    nature of the court's question, it is not clear what Figueroa was
    admitting or thought was required.14
    Next,   in   summarizing    all   the   charged   offenses,   the
    district court again affirmatively suggested a lesser mens rea
    than the law requires.      First, it misstated the required proof for
    counts 2, 3, and 4, suggesting that proof that Figueroa was in
    possession of "one of those firearms that happened to be stolen .
    . . [or] that happened to be an automatic firearm converted or
    otherwise, and [that] it so happened all these firearms were
    possessed in a school zone" was sufficient to prove the offenses.
    Of course, the fact that a firearm "happened to be" anything is
    not enough to establish criminal liability under the charged
    offenses.   The court created further confusion by asking Figueroa
    whether he had any doubt about what he was pleading to.           The court
    asked, "No doubt?        Do you have a doubt or no doubt?        No doubt?"
    From Figueroa's "No," we do not know whether he meant he had doubt
    or he had no doubt.
    The district court also failed to offer any explanation
    of the Government's burden in proving the aiding and abetting
    14 As we have held, evidence of the location of a school or
    even of the fact that it is visible from the location of a
    defendant's unlawful possession of a firearm is insufficient, in
    itself, to prove knowing possession of a firearm in a school zone.
    See Guzmán-Montañez, 756 F.3d at 11-12.
    - 21 -
    counts.     See Encarnación-Ruiz, 787 F.3d at 584 ("[T]he government
    must    prove    that    an    aider    and     abettor    of     criminal    conduct
    participated      with      advance     knowledge     of    the     elements      that
    constitute      the   charged       offense.")   (citing    Rosemond     v.    United
    States, 
    134 S. Ct. 1240
    , 1248-49 (2014)). In this respect, neither
    the    Government     nor     the    district    court     made    any   effort    to
    distinguish between the proof necessary to convict Figueroa as a
    principal and that required to convict him as an aider and abettor.
    Thus, the record does not establish that Figueroa understood the
    difference between "possessing firearms" and "aiding and abetting
    others in possessing firearms."15
    The district court further compounded this error through
    its confusing question, "So you, aided and abetted by others, or
    others aiding and abetting you, whatever way you want to call it,
    were in possession of these firearms in that car?"                   We do not know
    whether Figueroa's response of "Yes" to this disjointed compound
    question meant that he was "in possession of these firearms in
    that car" or "others . . . were in possession of these firearms in
    that car." We do not know which theory of liability the Government
    15
    "In order to sustain a conviction for aiding and abetting
    the government must prove, in addition to the commission of the
    offense by the principal, that the defendant consciously shared
    the principal's knowledge of the underlying criminal act, and
    intended to help the principal." United States v. Henderson, 
    320 F.3d 92
    , 109 (1st Cir. 2003).
    - 22 -
    intended to pursue, as, indeed, neither the Government nor the
    district court offered any explanation of the distinction between
    principal and aider and abettor liability.
    Last but not least, Figueroa's final, formal entry of a
    plea was itself ambiguous and less than explicit.            According to
    common practice, the colloquy resulting in a guilty plea concludes
    with the question, "How do you now plead to the charge, guilty or
    not guilty?"    West's Federal Forms, § 84:42 (May 2014).          So that
    an explicit, non-ambiguous record is created, the defendant should
    be prompted to state either "guilty" or "not guilty."             Here, the
    court did not follow this sensible practice.           Rather, it asked,
    "Do you still want to plead, sir?"        Figueroa then gave no verbal
    or oral answer at all, but instead only nodded his head up and
    down.   Again,    we   are   left   without   an   unambiguous,    explicit
    admission of guilt.
    3.     The district court's numerous plain errors in
    accepting Figueroa's guilty plea prejudicially
    affected the fairness of the proceedings
    The    foregoing    demonstrates    that   the   district   court
    committed plain and obvious error in entering Figueroa's plea as
    knowing and voluntary.       Remaining are the third and fourth prongs
    of the plain error standard.         Gandia-Maysonet, 
    227 F.3d 1
    , is
    instructive on those points as well.           In Gandia, we found the
    district court's error in describing the mens rea for carjacking
    - 23 -
    as "knowingly and unlawfully," rather than as "with the intent to
    cause death or serious bodily harm," sufficiently prejudicial to
    affect the defendant's substantial rights, thus satisfying the
    third prong of plain error review.          Gandia, 
    227 F.3d at
    4–5.        We
    thought that the court's "repeated misstatement, if accepted by
    [the defendant], could well have encouraged him to plead guilty.
    After all, a defendant who honestly did not think that he had
    intended to kill or maim might well bridle if told that he had to
    admit to this intent . . . ."           
    Id. at 5
    .       The district court's
    misstatements     about    the   scienter   requirements       at   Figueroa's
    colloquy were at least as confusing and misleading as those in
    Gandia.   Additionally, as in Gandia, there is little evidence that
    the defendant understood the element from some other source.               See
    
    id.
       And so we conclude that this confusion "could well have
    encouraged [the defendant] to plead guilty."             
    Id.
    If   there     were   any   doubt,    our   conclusion   is   easily
    confirmed by the manner in which a weakness in the government's
    proffer aligns with the district court's most glaring errors in
    explaining the law.        The government's proffer offered at best a
    sketchy   basis     for     inferring     that     Figueroa    possessed     or
    constructively possessed the firearms, much less that he knew that
    any were stolen.    The proffer showed only that Figueroa was in the
    back seat of a car that contained three firearms, one of which was
    somewhere on the floor of the car.          Such presence, by itself, is
    - 24 -
    not enough to establish criminal liability.    See, e.g., Ridolfi,
    768 F.3d at 62 (noting that "mere presence with or proximity to
    weapons, or association with another who possesses a weapon, is
    not enough" to sustain a conviction for firearms possession);
    United States v. Davis, 
    773 F.3d 334
    , 342 (1st Cir. 2014) (same);
    United States v. Rodríguez-Lozada, 
    558 F.3d 29
    , 40 (1st Cir. 2009)
    (same); United States v. Duval, 
    496 F.3d 64
    , 79 (1st Cir. 2007)
    (same).   Rather, the Government must show "some action, some word,
    or some conduct that links the individual to the contraband and
    indicates that he had some stake in it, some power over it."
    United States v. McLean, 
    409 F.3d 492
    , 501 (1st Cir. 2005) (quoting
    In re Sealed Case, 
    105 F.3d 1460
    , 1463 (D.C. Cir. 1997)).    There
    was no such fact conceded or otherwise made a part of the record
    that provided a rational basis for concluding Figueroa "had some
    stake in" or "some power over" the weapons in the car.16
    16 The closest the proffer comes to suggesting Figueroa was
    in constructive possession of a firearm is the allegation that a
    firearm was found "in the floor of the car" after Figueroa exited
    the vehicle.    From this, one reasonably might infer that the
    firearm was found on the floor near where Figueroa was sitting,
    from which one reasonably might infer that it was within arm's
    reach of Figueroa, from which one reasonably might infer Figueroa
    knew the weapon was within arm's reach, from which one reasonably
    might infer that Figueroa was in possession of the firearm. Facts,
    however, may not be established by stacking inference upon
    inference. See United States v. López-Díaz, 
    794 F.3d 106
    , 113–14
    (1st Cir. 2015) (citing United States v. Burgos, 
    703 F.3d 1
    , 10
    (1st Cir. 2012)). Again, there were no facts indicating Figueroa
    knew there was a firearm "in the floor," or that he "knowingly
    [had] the power and intention at a given time to exercise dominion
    or control over [a firearm] either directly or through others."
    - 25 -
    The district court therefore had before it a defendant
    claiming a lack of the precise knowledge for which the prosecution
    was offering no evidence at all.          In short, a man was apparently
    and unwittingly telling the court that he was very likely not
    guilty of the charge, with no evidence to the contrary.              We have
    no difficulty finding in such a case that, but for the court's
    error in wrongfully disregarding Figueroa's unwitting claims of
    innocence, there is a reasonable probability that this guilty plea
    would not have been entered.
    Nor, finally, is there any doubt that the error seriously
    affects the fairness and integrity of judicial proceedings.               We
    noted in Gandia that the plea's "force . . . in evidencing arguable
    guilt   was    substantially   undercut    by   the   misstatement   of   the
    scienter standard."      
    Id. at 6
    .    Given that, in combination with
    the fact that "the other evidence of scienter was thin (although
    not beyond reasonable inference)," we held that the fourth prong
    of plain error review was satisfied, "because [the error] seriously
    affected the guilty plea colloquy's fairness and integrity."              
    Id.
    The same result is dictated by the errors in this case.
    United States v. McLean, 
    409 F.3d 492
    , 501 (1st Cir. 2005) (quoting
    United States v. Carlos Cruz, 
    352 F.3d 499
    , 510 (1st Cir. 2003));
    see also United States v. Robinson, 
    473 F.3d 387
    , 399 (1st Cir.
    2007) (finding constructive possession of firearm found hidden in
    vehicle's engine compartment shown by, inter alia, defendant's
    statement that, "When they came from everywhere, I could have gone
    boom, boom").
    - 26 -
    B.      Sentencing Error
    Although vacation of the judgment on the grounds stated
    above obviates the need to address the district court's alleged
    sentencing      error,     for    sake    of    completeness,        we   next    address
    Figueroa's argument that the district court committed procedural
    error by imposing a sentence contrary to the guidance provided at
    USSG §§ 2K2.5 and 3D1.1.             Because this issue is raised for the
    first time on appeal, review is for plain error.                      United States v.
    Goodhue, 
    486 F.3d 52
    , 55-56 (1st Cir. 2007).
    "We review criminal sentences for reasonableness, using
    an abuse of discretion standard."                  United States v. Leahy, 
    668 F.3d 18
    , 21 (1st Cir. 2012) (citing Gall v. United States, 
    552 U.S. 38
    ,   46      (2007)).     This    review       "is    bifurcated:       we    first
    determine whether the sentence imposed is procedurally reasonable
    and then determine whether it is substantively reasonable."                             
    Id.
    (quoting United States v. Clogston, 
    662 F.3d 588
    , 590 (1st Cir.
    2011)). For a sentence to be procedurally reasonable, the district
    court    must      have   properly   calculated         the     guideline    sentencing
    range.     See United States v. Martin, 
    520 F.3d 87
    , 92 (1st Cir.
    2008)    (explaining       that   procedural       errors       include    "failing      to
    calculate       (or    improperly    calculating)             the   Guidelines        range"
    (quoting Gall, 
    552 U.S. at 51
    )).
    - 27 -
    In   the   instant   case,   the   district   court   committed
    procedural error by improperly calculating the Guidelines range.
    Because the four offenses in question involved the same act or
    transaction, they were properly grouped under USSG § 3D1.2(a).
    For counts included in a single group because they involved the
    same act or transaction, "the offense level applicable to [the]
    Group is the offense level . . . for the most serious of the counts
    comprising the Group, i.e., the highest offense level of the counts
    in the Group."   USSG § 3D1.3(a).       In the instant case, the most
    serious counts comprising the group were counts 1, 2, and 3.         The
    offense level applicable to the group, then, was the offense level
    applicable to counts 1, 2, and 3.      In this case, that offense level
    was 24, yielding a guideline sentencing range of 57-71 months'
    imprisonment at CHC II.
    The district court erred in calculating the guidelines
    range by removing count 4 from the group, calculating a guideline
    range for it separately, and then adding the count 4 calculation
    to the group calculation.      The court was correct in running the
    term of imprisonment for count 4 consecutively, but erred by
    running it in addition to the guideline range calculated for the
    group.
    Multiple counts of conviction are grouped under USSG
    § 3D1.1(a)(1) by applying the grouping rules of USSG § 3D1.2.
    - 28 -
    Under USSG § 3D1.2(a), convictions are grouped together if they
    involve the same act or transaction.      But USSG § 3D1.1(b)(1)(B)
    creates an exception to this rule for any count of conviction that
    "requires that [its] term of imprisonment be imposed to run
    consecutively to any other term of imprisonment."         Moreover,
    Application Note 2 to USSG § 3D1.1 provides that a conviction under
    
    18 U.S.C. § 922
    (q) is not subject to this exception, and that the
    multiple count rules therefore apply.      The result that follows
    from this guidance is consistent with the guidance set forth at
    Application Note 3 to USSG § 2K2.5, which provides that when "the
    defendant is convicted both of [an] underlying offense and 
    18 U.S.C. § 922
    (q), the court should apportion the sentence between
    the count for the underlying offense and the count under 
    18 U.S.C. § 922
    (q)."17   By straying from this guidance and not apportioning
    the sentence for violation of 
    18 U.S.C. § 922
    (q) as part of the
    guidelines range, the court imposed a sentence above the guidelines
    range sentence, even though it apparently intended to impose a
    guidelines sentence.18    Accordingly, we conclude the first two
    17 "For example, if the guideline range is 30-37 months and
    the court determines 'total punishment' of 36 months is
    appropriate, a sentence of 30 months for the underlying offense,
    plus 6 months under 
    18 U.S.C. § 922
    (q) would satisfy this
    requirement." USSG § 2K2.5, Application Note 3.
    18It is not clear from the record whether the district court
    recognized that, even under its mistaken understanding of the
    grouping rules, 78 months would have represented a high-end
    guidelines sentence. At sidebar, the court after some discussion
    - 29 -
    prongs of the plain error standard have been met, namely, that (1)
    there was an error, and (2) the error was plain or obvious.
    We also conclude that the third prong of the plain error
    standard has been met, in that the district court's error affected
    Figueroa's substantial rights, i.e., it affected the outcome of
    the court's proceedings.    The record clearly shows that the court
    believed the guidelines called for the stacking of the count 4
    period on top of the group period, rather than apportioning the
    offenses within the group period, thus increasing the guidance by
    seven months.   It also appears that the court's intention was to
    impose a guidelines sentence, properly calculated.       Absent any
    indication to the contrary, we therefore presume that, but for the
    error, there is a reasonable likelihood that the sentence would
    have been shorter.    See United States v. Ortiz, 
    741 F.3d 288
    , 293–
    94 (1st Cir. 2014).
    correctly stated that 60 months is the statutory maximum for
    violation of 
    18 U.S.C. § 922
    (q), see 
    18 U.S.C. § 924
    (a)(4), but
    when issuing its sentence, the court stated, "If I were to do high
    end on both ends, I would have to sentence you to 71 and 60.
    That's 117 months." The high end of a guidelines sentence under
    CHC II for violation of 
    18 U.S.C. § 922
    (q) is in fact 7 months.
    The record suggests a risk that the court was mixing apples
    (guideline ranges) and oranges (statutory maximums), leading it to
    impose a variant or upwardly departing sentence while believing
    itself to be imposing a more lenient guidelines sentence.
    - 30 -
    Finally,       we   believe    the     court's    sentencing    error
    "seriously affects the fairness, integrity or public reputation of
    judicial proceedings."                  As we stated in United States v. Díaz-
    Correa, 
    287 F. App'x 899
     (1st Cir. 2008) (unpublished per curiam):
    "Where correction of [] a guidelines calculation error would lead
    to   a        lower    sentence,     remand    for    resentencing    is   ordinarily
    warranted under the third and fourth prongs of [the plain error]
    standard."            
    Id.
     at 900–01 (citing United States v. Antonakopoulos,
    
    399 F.3d 68
    , 81 (1st Cir. 2005)).
    V.   Conclusion
    For     the     foregoing     reasons,    we     vacate   Figueroa's
    conviction and sentence, and we remand to a different district
    court         judge     for    proper    consideration    of    the   proposed   plea,
    including consideration of whether there is a sufficient factual
    basis to support the plea, and such further proceedings as are
    then called for.19
    19
    Because we recommend the judgment be vacated, we need not
    address Figueroa's ineffective assistance of counsel claim.
    - 31 -