United States v. Diaz-Concepcion

United States Court of Appeals
For the First Circuit
No. 16-1407
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS DÍAZ-CONCEPCIÓN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Torruella, Lynch, and Kayatta,
Circuit Judges.
Leslie W. O'Brien on brief for appellant.
John A. Mathews II, Assistant U.S. Attorney, Mariana E. Bauzá-
Almonte, Assistant U.S. Attorney, Chief, Appellate Division, and
Rosa Emilia Rodríguez-Vélez, United States Attorney, on brief for
appellee.
June 21, 2017
LYNCH, Circuit Judge. Carlos Díaz-Concepción pled
guilty to a one-count information charging him with possession of
a firearm in furtherance of a drug trafficking crime, in violation
of 18 U.S.C. § 924(c)(1)(A)(i), after he was found to be in
possession of a loaded machine gun, two magazines loaded with
ammunition, thirteen individually packaged bags of cocaine, one
bag of marijuana, and $3,138 in cash while driving a motorcycle in
Puerto Rico. Consistent with the terms of the plea agreement Díaz-
Concepción entered, the defense recommended a sentence of seven
years' imprisonment, and the government recommended a sentence of
ten years' imprisonment. The district court imposed a sentence of
eight years' imprisonment, comfortably within the range of those
recommendations.
Díaz-Concepción appeals his conviction, arguing to us,
as he did not to the district court, that his plea was not knowing
and voluntary because the district court purportedly, in error,
failed to adequately explain to him the nature of the charged
offense during his plea colloquy. See Fed. R. Crim. P. 11(b)(1)(G)
(before accepting a guilty plea, a court must "inform the defendant
of, and determine that the defendant understands, . . . the nature
of each charge to which the defendant is pleading").
We hold that the district court committed no error in
accepting Díaz-Concepción's plea, much less the plain error he
must show to prevail in this appeal. We affirm his conviction.
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I.
On October 19, 2014, Díaz-Concepción was pulled over by
officers of the Puerto Rico Police Department for driving a
motorcycle without a helmet. During the stop, the officers
discovered that Díaz-Concepción was in possession of a loaded
machine gun, two magazines loaded with ammunition, thirteen
individually packaged bags of cocaine, one bag of marijuana, and
$3,138 in cash. Díaz-Concepción was ultimately indicted on federal
charges of (1) possession of cocaine with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1); and (2) possession of a machine
gun in furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(B)(ii).
Following plea negotiations, Díaz-Concepción agreed to
waive indictment and plead guilty to a one-count information
containing only the firearm charge. Notably, as a result of those
negotiations, the firearm charge changed, in that it no longer
alleged that the firearm at issue was a machine gun.1 The
government also agreed to drop the drug charge altogether.
1 Díaz-Concepción did well in his negotiations. The
information charged that he "did knowingly and intentionally
possess a firearm . . . in furtherance of a drug trafficking
crime . . . in violation of [18 U.S.C. §] 924(c)(1)(A)(i)." A
violation of § 924(c)(1)(A)(i) carries a mandatory minimum
sentence of five years' imprisonment. In contrast, a violation of
§ 924(c)(1)(B)(ii) -- the provision applicable when the firearm at
issue is a machine gun -- carries a mandatory minimum sentence of
30 years' imprisonment.
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On April 20, 2015, Díaz-Concepción signed a plea
agreement and accompanying Stipulation of Facts. In signing the
Stipulation of Facts, Díaz-Concepción "agree[d] that [it was] a
true and accurate summary of the facts leading to [his] acceptance
of criminal responsibility for violating 18 U.S.C.
§ 924(c)(1)(A)." The Stipulation of Facts described the
circumstances of the October 2014 traffic stop, including the items
that were found in Díaz-Concepción's possession during his
motorcycle ride. It stated that Díaz-Concepción "acknowledges
that he possessed a firearm in furtherance of a drug trafficking
crime [under 18 U.S.C. § 924(c)(1)(A)(i)]." And it stated that,
"[h]ad this matter proceeded to trial, the government would have
[proven the aforementioned] facts beyond a reasonable doubt."
In the plea agreement, Díaz-Concepción attested as
follows: "I have read this [agreement] and carefully reviewed every
part of it with my attorney. I fully understand this [agreement]
and voluntarily agree to it." As part of the agreement, the United
States formally agreed to "move to dismiss the [indictment in its
entirety]."
The same day that he signed the agreement, Díaz-
Concepción appeared at a plea hearing before a magistrate judge.
The judge first made sure Díaz-Concepción was competent and that
he understood the proceedings, making clear that he could freely
request additional clarification or repetition and could ask
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questions or consult with his attorney at any time as to any issue.
The judge then recited the charge against Díaz-Concepción, showed
him his signed agreement, and received his assurance that he had
signed it voluntarily and with the advice of counsel. Defense
counsel verified that she had explained the agreement to Díaz-
Concepción, and Díaz-Concepción confirmed that he was fully
satisfied with the legal advice and representation he had received.
After reviewing the contents of the agreement with Díaz-
Concepción,2 the judge asked the government to state the facts that
the government would have proven if the case had gone to trial.
The government explained the facts as they were described in the
Stipulation of Facts appended to the agreement. The government
concluded by stating that Díaz-Concepción "acknowledges that he
possessed a firearm in furtherance of a drug trafficking crime as
charged in Count 1 of the information," and the government would
have proven -- through "the testimony of law enforcement agents,
[the testimony of] an expert chemist, [and] physical and
2 The judge enumerated for Díaz-Concepción the various
rights he was waiving under the agreement. As Díaz-Concepción
himself summarizes in his brief, he acknowledged that he was
"waiving his right to remain silent, to be presumed innocent, to
testify on his own behalf, to have a speedy trial, to cross examine
witnesses and challenge the evidence against him, to be found
guilty only upon a unanimous verdict, to compel attendance of
witnesses, to be assisted by counsel throughout the trial, to be
presumed innocent, to have the prosecution bear the burden of proof
beyond a reasonable doubt, and to make no admissions incriminating
himself."
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documentary evidence" -- that fact beyond a reasonable doubt in
the event of a trial. The judge then asked Díaz-Concepción if the
facts as stated by the government were accurate, and he answered
in the affirmative.
Finally, the judge sought to confirm that Díaz-
Concepción understood the charge against him. The judge explained:
"[T]he [one count in the] information . . . that you're pleading
guilty to [states that on October 19, 2014 you] 'did knowingly and
intentionally possess a firearm . . . [in] furtherance of a drug
trafficking crime . . . in violation of [18 U.S.C.
§] 924(c)(1)(A)(i).' Do you understand this charge?" After Díaz-
Concepción responded, "Yes," the judge asked, "Do you understand
you are pleading guilty to this charge?" and Díaz-Concepción again
responded, "Yes."
Having found that Díaz-Concepción acted competently,
knowingly, and voluntarily, and that "there[] [was] a basis in
fact for [the] plea," the magistrate judge recommended to the
district court that the plea be accepted and approved. Díaz-
Concepción did not object, and the district court adopted that
recommendation.
Sentencing was held before the district court on March
21, 2016. During his allocution, Díaz-Concepción acknowledged his
guilt, stating: "I know I committed this crime and I have to serve
my time for it." As the plea agreement prescribed, the defense
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recommended a seven-year sentence, and the government recommended
a ten-year sentence. The court noted that the offense of
conviction carried a statutory range of five years to life. It
acknowledged that the parties' recommendations reflected the
benefit Díaz-Concepción had received -- through the omission in
the information of the facts that had appeared in the indictment
identifying his firearm as a machine gun -- in exchange for his
guilty plea. The court then imposed a sentence of eight years.
At the conclusion of the proceedings, the court advised
Díaz-Concepción that, although he had agreed to waive his right to
appeal his conviction as part of his plea agreement, he could
pursue an appeal if he felt that his plea was unlawful or
involuntary or that there was some fundamental defect in the
proceedings. See United States v. Chambers, 710 F.3d 23, 27 (1st
Cir. 2013) (a waiver-of-appeal provision in a plea agreement does
not bar an appeal challenging the validity of the plea itself).
This appeal followed.
II.
On appeal, Díaz-Concepción argues that his guilty plea
was not knowing and voluntary and that, therefore, the district
court should not have accepted it. He posits that that is because
the magistrate judge did not explain at the plea hearing the
elements of possession of a firearm in furtherance of a drug
trafficking crime -- namely, the requirement that the defendant
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was engaged in a drug trafficking crime (such as possession of
cocaine with intent to distribute) -- and, as a result, he did not
clearly understand the nature of the crime to which he pled guilty.
Given that Díaz-Concepción raises this issue for the first time on
appeal, he necessarily argues that the omission of an explanation
of the elements was plain error. He claims that it is reasonably
probable that he would not have pled guilty if such an explanation
had been provided, given the purported weakness of the government's
evidence as to his intent to distribute the cocaine seized from
him.
To prevail under the plain error standard, Díaz-
Concepción must prove "(1) that an error occurred (2) which was
clear or obvious and which not only (3) affected the defendant’s
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings." United
States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). He cannot make
this showing.
A. There Was No Error
Díaz-Concepción's claim fails at the threshold question
of whether there was any error at all. The error that Díaz-
Concepción alleges is a violation of Federal Rule of Criminal
Procedure 11(b)(1)(G). That rule requires a court, before
accepting a defendant's guilty plea, to "inform the defendant of,
and determine that the defendant understands, . . . the nature of
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each charge to which the defendant is pleading." Fed. R. Crim. P.
11(b)(1)(G); see United States v. Delgado-Hernández, 420 F.3d 16,
19 (1st Cir. 2005) ("'[E]nsuring 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.'" (first
alteration in original) (quoting United States v. Gandia-Maysonet,
227 F.3d 1, 3 (1st Cir. 2000))). Díaz-Concepción argues that the
court failed to explain explicitly to him that the commission of
a drug trafficking crime is an element of possession of a firearm
in furtherance of a drug trafficking crime and that, therefore, in
order to convict him under 18 U.S.C. § 924(c)(1)(A)(i) at a trial,
the government would have needed to prove beyond a reasonable doubt
that he intended to distribute cocaine found in his possession, in
violation of 21 U.S.C. § 841(a).
Rule 11 does not require a court to "employ a 'specific
script [or] set of magic words.'" United States v. Ramos-Mejía,
721 F.3d 12, 15 (1st Cir. 2013) (quoting United States v. Ward,
518 F.3d 75, 83 (1st Cir. 2008)). And it certainly "does not
require the court to explain the technical intricacies of the
charges," including, in most cases, the charges' component
elements. Id. (quoting United States v. Cruz-Rivera, 357 F.3d 10,
13 (1st Cir. 2004)). "Under ordinary circumstances, it is
sufficient in a plea colloquy for a district court to 'ascertain
that a defendant is aware of the nature of the charge against him
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by reading the charge in the indictment to the defendant and
obtaining his competent acknowledgment that he understands the
charge.'" Id. (quoting Delgado-Hernández, 420 F.3d at 26).
Our decision in Ramos-Mejía is instructive. There, the
appellant claimed that the district court had erred under Rule 11
by failing to explain to him that knowledge and specific intent
were elements of the drug trafficking offense to which he pled
guilty; instead, the court had simply "read the charge from the
indictment and then inquir[ed] whether that was what [the
appellant] had done." Id. at 14-15. We rejected the claim of
error, noting that the court had
assured itself of the [appellant's] competence
to plead, had the prosecutor summarize both
the plea agreement and the government's
available proof, . . . obtained the
appellant's acknowledgment that those
summaries were accurate[,] [had] [t]he
appellant . . . confirm[] to the court his
desire "[t]o plead guilty [to] what [he was]
being accused of[,]" . . . made certain that
the appellant had read the indictment and
understood both the charge and the terms of
the plea agreement[,] . . . verified that the
appellant had reviewed these materials with
his attorney[,] . . . read aloud the charge
limned in the indictment, and [heard] the
appellant agree[] that he had knowingly
participated in that activity.
Id. at 15 (eighth, ninth, and tenth alterations in original); see
also United States v. Ramírez-Benítez, 292 F.3d 22, 27 (1st Cir.
2002) (finding "no [Rule 11] error" where "[t]he terms of the
indictment alone sufficed to put [the defendant] on notice of the
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charge to which he was pleading guilty[,] [the defendant] admitted
he understood the charge[,] and the court found him competent to
plead"). All of those steps were taken by the court here, and no
more was required.3
The record indicates that Díaz-Concepción sufficiently
understood the elements of the charged crime. The plea agreement
itself contained a factual narrative that made explicit what the
government said it could prove. And it contained Díaz-Concepción's
unequivocal attestation that he understood that narrative and
agreed with the government's claim of proof. The agreement also
memorialized Díaz-Concepción's review of its contents with
counsel. All of this information was confirmed at the plea
hearing. Finally, Díaz-Concepción was specifically on notice that
the predicate drug trafficking crime attendant to the charge of
possession of a firearm in furtherance of a drug trafficking crime
was possession of cocaine with intent to distribute, as that charge
had appeared alongside the firearm charge in the original
3 It is true that the ordinary requirements of Rule 11 may
be heightened in an extraordinary case "depending on the attributes
of the particular defendant, the nature of the specific offense,
and the complexity of the attendant circumstances." Ramos-Mejía,
721 F.3d at 15. But "[t]his is a run-of-the-mine case, involving
a mature defendant with a history of gainful employment [and some
college education]. The appellant was facing only a single charge
-- and that charge was not a complicated one. Moreover, the
circumstances attendant to the charged crime were
straightforward." Id.
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indictment. "Given these considerations, . . . a reading of the
charge sufficed." Ramos-Mejía, 721 F.3d at 15. There was no
error.
B. Any Error Did Not Affect Díaz-Concepción's Substantial Rights
Even if Díaz-Concepción had established that a Rule 11
error occured and that the error was clear or obvious, his claim
would fail in any event at the third prong of plain error review.
That is, he cannot show a reasonable probability that, but for the
purported error, he would not have pled guilty. See United States
v. Urbina-Robles, 817 F.3d 838, 842-44 (1st Cir. 2016). Where, as
here, it is clear from the uncontested record that the government
would have had sufficient evidence to secure a conviction at trial,
an appellant's bare contention that he might have pled differently
if the elements of the charged offense had been expounded upon is
not enough to meet that standard. See id. at 843-44.
In the end, Díaz-Concepción's argument dissolves into a
simple one -- that the government could not have easily proven
that he intended to distribute the cocaine found in his possession.
He is wrong. The government had "ample evidence" of his intent to
distribute. United States v. Andrade, 94 F.3d 9, 13 (1st Cir.
1996).
First, Díaz-Concepción was in possession of a large sum
of cash, totaling $3,138 -- one of the common "trappings of a drug
distributor." United States v. Bobadilla-Pagán, 747 F.3d 26, 34
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(1st Cir. 2014). Second, Díaz-Concepción was in possession of a
loaded machine gun and additional loaded magazines. See id.
(intent to distribute can be inferred where drugs are found in the
vicinity of a loaded firearm); see also United States v. Bianco,
922 F.2d 910, 912 (1st Cir. 1991) ("[F]irearms are common tools of
the drug trade."). And third, Díaz-Concepción's cocaine was
packaged in thirteen individual bags rather than in a single bag,
as one might expect if the drugs truly were intended solely for
his personal use. See United States v. Pena, 586 F.3d 105, 112
n.8 (1st Cir. 2009) (intent to distribute can be inferred where
drugs are "packaged in individual . . . bags"); United States v.
Bergodere, 40 F.3d 512, 518 (1st Cir. 1994) (the fact that
appellant's drugs were packaged in several individual bags
"militated toward a conclusion that appellant was himself a
dealer").
To the extent Díaz-Concepción also argues that the
government could not have easily proven the existence of a nexus
between any drug trafficking he engaged in and his firearm, he is
wrong again. All of the common signs that the firearm was used to
protect drugs and drug proceeds, and thereby further drug
trafficking efforts, were present here. See Pena, 586 F.3d at
113; United States v. Garner, 338 F.3d 78, 81 (1st Cir. 2003).
First, Díaz-Concepción's machine gun was loaded, and he
had in his possession multiple additional magazines that were also
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loaded. See Pena, 586 F.3d at 113. Second, the firearm was
readily accessible to Díaz-Concepción, holstered as it was on his
waist. See id. Third, although the record does not disclose the
precise location of Díaz-Concepción's drugs, they were undoubtedly
in close proximity to the firearm on his person; given that he was
riding a motorcycle, the drugs were either also on his person or
mere feet away. See id. Finally, in addition to drugs, Díaz-
Concepción was also in possession of a large sum of cash, totaling
$3,138. See id. The government's proof of a nexus with drug
trafficking was overwhelming. Cf. United States v. Grace, 367
F.3d 29, 31 (1st Cir. 2004) (finding sufficient evidence of a nexus
between a firearm and a drug trafficking crime for a conviction
where an unloaded firearm was discovered under a bed in a drawer,
no ammunition was found in the house, and the drugs were found in
a different room than the firearm).
In view of the strength of the government's evidence
that was more than sufficient to prove each element of the charged
crime, Díaz-Concepción cannot demonstrate a reasonable probability
that he would not have pled guilty if the court had simply listed
for him each of those elements, or devoted more detail to
describing how his conduct would satisfy the "in furtherance"
requirement.4 See Delgado-Hernández, 420 F.3d at 27.
4 To the extent that, in addition to his claim that the
district court violated Rule 11(b)(1)(G) by failing to explain to
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This conclusion is firmly reinforced by the substantial
benefit Díaz-Concepción received by pleading guilty. See Urbina-
Robles, 817 F.3d at 844. As part of his plea deal, the government
agreed to drop the drug charge against him and permitted him to
plead guilty to a version of the firearm charge that omitted any
reference to the automatic nature of his gun. By agreeing to these
terms, Díaz-Concepción was able to reduce the mandatory minimum
prison term he faced by 25 years. In light of the evidence of his
guilt, it is not reasonable to think he would have rejected such
a deal and taken his chances at trial.
III.
Díaz-Concepción's conviction is affirmed.
him the elements of a § 924(c) violation, Díaz-Concepción
independently claims that the district court violated Rule
11(b)(3) by accepting a plea that he now purports lacked a
sufficient factual basis, that claim easily fails. Even if the
claim has not been waived as perfunctorily raised, see United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990), for the reasons
just recounted, the facts that the government proffered and that
Díaz-Concepción conceded easily provided the plea with "a rational
basis in fact[]." Delgado-Hernández, 420 F.3d at 27 (quoting
Gandia-Maysonet, 227 F.3d at 6).
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