United States v. Vasconcelos , 71 F. App'x 863 ( 2003 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-1931
UNITED STATES,
Appellee,
v.
FRANCISCO VASCONCELOS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, Senior U.S. District Judge]
Before
Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
Jeanne M. Kaiser on brief for appellant.
Margaret E. Curran, United States Attorney, Donald C. Lockhart
and Terrence P. Donnelly, Assistant United States Attorneys, on
brief for appellee.
August 20, 2003
STAHL, Senior Circuit Judge. Defendant-appellant
Francisco Vasconcelos seeks to withdraw his guilty plea in a case
of illegal reentry, asserting that his waiver of his right to a
jury trial was not knowing and voluntary. We hold that the
irregularities in the district court's Rule 11 colloquy, while
confusing, did not amount to reversible error. Accordingly, we
affirm the district court's denial of Vasconcelos's motion to
withdraw his guilty plea.
I. BACKGROUND
Vasconcelos is a native and a citizen of Cape Verde. In
1971, at age twelve, he entered the United States on a visa. At
the time of his entry, Vasconcelos's mother was a lawful permanent
resident and his stepfather was a United States citizen.
Between 1980 and 1988, Vasconcelos was convicted of
robbery, possession of a stolen motor vehicle, and possession of
cocaine. Based on these convictions, Vasconcelos was deported on
September 14, 1993. He returned to the United States without
permission, however, and in 1994 was convicted of entering a
building with the intent to commit a felony. Thereafter, on
October 10, 1994, Vasconcelos was again deported.
Vasconcelos managed to reenter the United States without
permission once again. On November 7, 2000, he was arrested in
East Providence, Rhode Island, on charges of drug possession and
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obstructing a police officer. The Immigration and Naturalization
Service took him into custody on July 10, 2001.
On August 1, 2001, a federal grand jury in the District
of Rhode Island returned a one-count indictment charging
Vasconcelos with illegal reentry in violation of 8 U.S.C. §§
1326(a) and (b)(2). On January 15, 2002, Vasconcelos signed a plea
agreement, in which he agreed to plead guilty to the indictment.
The government, in turn, agreed to recommend a reduction for
acceptance of responsibility and the lowest possible guideline
sentence. The agreement stated that Vasconcelos had a right "to
persist in a plea of not guilty" and "to be tried by a jury" but
that "by pleading guilty, he [would give] up his right to a trial."
(emphasis in original).
On February 4, 2002, the district court conducted a
change of plea hearing pursuant to Fed. R. Crim. P. 11. At the
hearing, the court asked Vasconcelos if any promises or assurances
not included in the plea agreement had been made to him.
Vasconcelos replied "no," but his attorney interjected:
I made two promises to him independently that I would get
a copy of an attorney's file named Peter Allen back from
the early 1990s, which I did do. Mr. Allen did send me
the file, and he had an old [FOIA] request pending up in
the Immigration Service about 2 years ago, a copy of his
full [FOIA] file, and I've been geared to get him a full
copy of his file back from the late 1960s right to the
present time, and I will follow through on those
promises.
The court responded, "All right."
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Later in the colloquy, the judge informed Vasconcelos that if
he pled guilty to the crime, he would give up his right to a trial
by jury. At this point, Vasconcelos asked to talk with his
attorney. Following their consultation, his attorney told the
court that despite his research into the facts of Vasconcelos's
case,
we do not have a factual basis for claiming at this point
that he's a citizen, and he recognizes and admits as
much, that therefore he is guilty of this particular
offense and he's asking permission today to allow the
Court to accept the plea bargain agreement and to accept
the plea of guilty. He has told me, he has just said to
me here, that if new facts come up in the future that
under some theory which is unknown to us at this point in
time, somehow it gets shown to a court that, in fact, he
always was a citizen, or something of that sort, that he
has legal remedies available to him at that point to try
to reopen the case. But I told him that if, in fact,
something comes up in the future that's unbeknownst to
him, unbeknownst to the documents . . . that if facts
arise that could change what he's saying here today, that
I would in fact follow up on it.
To this statement, the trial judge replied "all right." The
judge then asked Vasconcelos, "so you understand all that?" Next,
the judge inquired, "now with all these things in mind that we've
been discussing, do you want to plead guilty . . .?" The district
court accepted Vasconcelos's guilty plea and scheduled a sentencing
hearing. Later, the district court allowed Vasconcelos's motion to
continue the sentencing hearing so as to allow Vasconcelos to
obtain his INS file.
On July 24, 2002, two days before the rescheduled sentencing
hearing, Vasconcelos's attorney filed a motion to withdraw the
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guilty plea. The motion stated that through "additional
investigation," Vasconcelos had discovered: (1) his mother was a
lawful permanent resident at the time she married a U.S. citizen
named Bert Little; (2) this marriage occurred before Vasconcelos
immigrated to the United States; (3) after the marriage,
Vasconcelos's mother filed a petition with the INS for "lawful
permanent resident" status for Vasconcelos; and (4) in 1975, Bert
Little applied on Vasconcelos's behalf for replacement of a "lost
alien registration receipt card." Attached to the motion were
copies of the petition and application.
On July 26, 2002, the trial court held a hearing on the motion
to withdraw. At the beginning of the hearing, Vasconcelos's
attorney reminded the court that Vasconcelos had said he would be
back if he had any proof of citizenship. Vasconcelos's attorney
stated:
There was a dispute between -- a discussion between
myself and Mr. Vasconcelos as to the legal import of that
which was there attached as Exhibits 1 and 2 [to the
motion], but in the end analysis after more than several
hours of discussion over the import, I reached the point
where I told Mr. Vasconcelos that what he instructed me
to do I would do, and I would file the motion. . . .
The government responded that there was agreement that no Rule 11
defect in the plea proceedings had occurred. Neither defense
counsel nor the court reacted to this assertion, and there was no
further reference to any Rule 11 problem. The government also
argued that Vasconcelos's motion to withdraw did not present any
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evidence that would establish a defense of citizenship. The
district court agreed and denied the motion to withdraw, noting
that Vasconcelos had had "ample opportunity to establish any claim
of citizenship." The court then sentenced Vasconcelos to the
lowest possible sentence under the guidelines: 41 months of
imprisonment.1
II. DISCUSSION
A motion to withdraw a guilty plea should be granted when a
defendant can make an affirmative showing of "any fair and just
reason" for withdrawing the plea. Fed. R. Crim. P. 11(d)(2)(B).2
In determining whether a defendant met this burden, the district
court should evaluate the totality of the circumstances. United
States v. Torres-Rosa, 209 F.3d 4, 8 (1st Cir. 2000).3
1
Vasconcelos moved for a downward departure on the ground that
he had a mistaken belief that he was a U.S. citizen. That motion
was denied.
2
At the time of Vasconcelos's guilty plea and sentencing, Rule
32 permitted a district court judge to grant a motion to withdraw
a guilty plea filed prior to imposition of sentence for "any fair
and just reason." Fed. R. Crim. P. 32(e). This provision has
since been moved to Rule 11. Fed. R. Crim. P. 11(d)(2)(B).
3
Four elements warrant particular attention: (1) the
plausibility of the proffered reason for withdrawal of the plea;
(2) the timing of the attempted withdrawal; (3) the presence of a
claim of innocence; and (4) whether the circumstances indicate that
the plea was not made knowingly and voluntarily within the meaning
of Fed. R. Crim. P. 11. Torres-Rosa, 209 F.3d at 8-9. We need not
delve into these factors in detail, as we hold infra that even if
the district court erred, such error does not warrant reversal.
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We first consider the question of the appropriate standard of
review. Fed. R. Crim. P. 11(h) sets forth a harmless error
standard. Where a defendant fails to present a Rule 11 challenge
to the district court, however, appellate review is for plain error
only. United States v. Vonn, 535 U.S. 55, 66 (2002).
It is unclear from the Rule 11 colloquy whether the district
court recognized that Vasconcelos might have misunderstood the
effect of his guilty plea on his right to a jury trial. Certainly
Vasconcelos did not expressly contend below that the district
court's Rule 11 colloquy was inadequate or that his plea was
involuntary. His motion to withdraw his guilty plea in the
district court was based on the newly discovered evidence
concerning his citizenship; not until this appeal did Vasconcelos
argue that his plea was not knowing and voluntary and thus
prohibited by Rule 11. We need not decide whether Vasconcelos
adequately preserved the Rule 11 issue, because, under either a
harmless error or plain error standard of review, the result is the
same. See United States v. Noriega-Millan, 110 F.3d 162, 166-68 &
n.4 (holding any Rule 11 error harmless and declining to decide the
appropriate standard of review).
Vasconcelos argues that he was not clearly informed that his
plea created finality, or that he was conclusively waiving his
right to a trial by jury. He points to his counsel's statement
that he had promised to continue to investigate his case and to
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bring any new theories about Vasconcelos's innocence before the
court. Moreover, when the trial judge was explaining to
Vasconcelos that he was waiving his right to a jury trial, his
counsel stated that he had assured Vasconcelos that he would
"follow up on" Vasconcelos's case and perhaps "reopen" it if
additional facts came to light. The trial judge made no attempt to
clarify or correct this statement; he simply replied "all right,"
and asked Vasconcelos, "so you understand all that?" The court
then allowed Vasconcelos to continue the sentencing hearing so as
to allow him to obtain his INS file.
We are troubled by the district court's apparent acquiescence
to Vasconcelos's stated intent to continue pursuing his case.
Assuming without deciding that the district court's actions
constituted error, we hold that Vasconcelos cannot satisfy either
the plain error standard required by Vonn or the less demanding
harmless error standard. Vasconcelos's counsel's promises to
"follow up on" or even "reopen" the case did not assert a right to
a jury trial. Rather, it appears that Vasconcelos was seeking to
present any new evidence related to his citizenship to a court. At
the Rule 11 hearing, his counsel stated: "He has told me . . .
that if new facts come up in the future that under some theory
which is unknown to us at this point in time, somehow it gets shown
to a court that, in fact, he always was a citizen, or something of
that sort, that he has legal remedies available to him at that
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point to try to reopen the case." (emphasis added). That statement
indicates that Vasconcelos expected a court, not a jury, to
consider the new information.
Vasconcelos received exactly that. At the hearing on his
motion to withdraw his plea, Vasconcelos presented the evidence
that he believed helped his case; the district court considered it
and determined that it did not affect his conviction.
Vasconcelos's attorney below effectively conceded, and the district
court agreed, that the INS documents attached to his motion to
withdraw his guilty plea did not establish his citizenship or any
other valid defense to the charges against him. See United States
v. Soto, 106 F.3d 1040, 1041 (1st Cir. 1997) (good faith belief in
one's citizenship is not a defense to a § 1326 charge). We note
further that Vasconcelos was deported in 1993 and again in 1994; he
has had a decade to produce evidence of his citizenship, but has
failed to do so.
In sum, Vasconcelos would have no viable immigration-related
defense to the charges if his case were permitted to go to trial.
Accordingly, we hold that the district court did not commit
reversible error, and we will not disturb its denial of
Vasconcelos's motion to withdraw his guilty plea.
Affirmed.
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