Simon v. United States ( 1995 )

USCA1 Opinion

          March 1, 1995
                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT



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        No. 93-2112

                                    ANTHONY SIMON,

                                Petitioner, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                Respondent, Appellee.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. Robert E. Keeton, U.S. District Judge]
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                                        Before

                                Boudin, Circuit Judge,
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                          Bownes, Senior Circuit Judge, and
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                                Stahl, Circuit Judge.
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            Anthony Simon on brief pro se.
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            Donald K.  Stern, United States  Attorney, and  Joseph M.  Walker,
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        III, Assistant United States Attorney, on brief for appellee.
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                 Per Curiam.  Petitioner Anthony Simon appeals the denial
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            by the  United  States District  Court  for the  District  of

            Massachusetts of his  motion to vacate, set  aside or correct

            his sentence, pursuant  to 28 U.S.C.    2255.   We have  read

            carefully  the  record in  this case  and  the briefs  of the

            parties.   We  affirm  the  decision of  the  district  court

            essentially for the reasons given in its memorandum and order

            dated August 25, 1993.  We add only the following.

                 Simon  claims that  the  record of  his  change of  plea

            hearing indicates  that the  district court violated  Fed. R.

            Crim. P. 11(c)(1)  because it failed to establish  that Simon

            entered his guilty plea with  an understanding of the "nature

            of  the charge[s] to which the plea  [was] entered."  Id.  He
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            also  claims  that the  court  failed  to make  a  sufficient

            inquiry to  "satisfy it[self] that  there is a  factual basis

            for the plea."  Fed. R. Civ. P. 11(f).  

                 A failure to ascertain  that Simon understood the charge

            to which  he was  pleading guilty  would  constitute a  "core

            violation" of Rule 11 and mandate that the plea be set aside.

            United States  v. Cotal-Crespo,  No. 94-1354, slip  op. at  7
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            (1st Cir. Jan. 30,  1995).  "[W]e review the  totality of the

            circumstances  surrounding  the  Rule  11  hearing"  and,  in

            particular, "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."

            Id.
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                 Simon pled  guilty to  one count  of possession  of more

            than one hundred grams of heroin in violation of 21  U.S.C.  

            841(a)(1) and one count of  engaging in a continuing criminal

            enterprise in violation  of 21  U.S.C.   848.   Although  the

            court asked  Simon whether  he understood  the nature of  the

            charges to which he was pleading guilty,  and Simon responded

            in  the affirmative,  the court  neither read the  charges to

            Simon nor explained  to him the  specific elements of  either

            count.    However, the prosecutor's statement of the evidence

            which  would have  been  offered at  trial clearly  described

            facts which set  forth all  the elements of  each offense  to

            which  Simon  pled guilty  and  the  conduct by  Simon  which

            constituted  each  offense.     Simon   admitted  to   having

            "participated  in the offenses charged  [in the two counts to

            which he pled guilty]  in the ways indicated in  that summary

            of  the evidence."    Since no   "exceptional  circumstances"

            exist which  indicate otherwise, see, e.g.,  United States v.
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            Ruiz-Del  Valle, 8 F.3d  98, 103-04 (1st  Cir. 1993) (finding
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            change of  plea hearing defective because  charge was neither

            read  nor explained  and defendant  during plea  hearing made
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            statement which should have  put court on notice she  did not

            understand charge),  the prosector's statement  is sufficient

            evidence  that  Simon  understood  the charges  to  which  he



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            entered a plea.  Cotal-Crespo, slip op. at 10.   It is also a
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            sufficient for finding that there was a factual basis for the

            plea.  See United States v.  Fountain, 777 F.2d 351, 355 (7th
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            Cir. 1985), cert. denied, 475 U.S. 1029 (1986).
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                 Affirmed.
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