United States v. Paulino-Serrano

Not For Publication in West's Federal Reporter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. 05-2494
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ R. PAULINO-SERRANO,
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 Lipez,
Circuit Judges.
Rafael F. Castro Lang on brief for appellant.
Nelson Peréz-Sosa, Assistant U.S. Attorney, Germán A.
Rieckehoff, Assistant U.S. Attorney, and H.S. Garcia, United States
Attorney, on brief for appellee.
October 20, 2006
Per Curiam. José R. Paulino Serrano ("Paulino"), who
pled guilty to conspiring to possess heroin with intent to
distribute it and aiding and abetting others in possessing a gun
during and in relation to that offense, appeals from his
conviction. On appeal, he argues that his guilty plea should be
vacated because (1) the magistrate judge, who recommended that his
guilty plea be accepted, did not adequately explain the nature of
the charges against him and (2) there was an insufficient factual
basis for his plea. Specifically, Paulino claims that he did not
know that the alleged conspiracy involved drugs.1 The government
argues that these challenges were not raised in the district court
and that, therefore, the validity of Paulino's plea is reviewable
only under the appellant-unfriendly plain-error standard, rather
than the abuse-of-discretion standard that otherwise applies to
such claims. See United States v. Matos-Quiñones, 456 F.3d 14, 21
n.8 (1st Cir. 2006). We need not determine the applicable standard
of appellate review, however, because, as discussed below, under
either standard, we find no error in the district court's
acceptance of Paulino's plea.
1
At his change of plea hearing in the district court, Paulino
also initially disputed his possession of a gun, but, after he
admitted knowing that other participants were carrying firearms,
and the government and the magistrate judge explained that he need
not have been physically carrying a firearm to be subject to being
charged with aiding and abetting others in doing so, see United
States v. Negrón-Narváez, 403 F.3d 33, 37-38 (1st Cir. 2005), he
dropped that argument and does not press it on appeal.
-2-
We start our analysis by reiterating that, for acceptance
of a guilty plea to be valid under Rule 11 of the Federal Rules of
Criminal Procedure, the plea colloquy need not be perfect. United
States v. Padilla-Galarza, 351 F.3d 594, 598 (1st Cir. 2003).
Indeed, the rule itself requires us to overlook minor errors in the
plea proceedings that do not affect substantial rights. Fed. R.
Crim. P. 11(h); see also United States v. Raineri, 42 F.3d 36, 45
(1st Cir. 1994).
As to the district court's obligation to explain the
nature of the charges, "Rule 11 expressly requires that the
district court 'inform the defendant of, and determine that the
defendant understands . . . the nature of each charge to which the
defendant is pleading,'" Matos-Quiñones, 456 F.3d at 21 n.8
(quoting Fed. R. Crim. P. 11(b)(1)(G)), and we have construed that
obligation to "'includ[e] ensuring that the defendant understands
the elements of the charges that the prosecution would have to
prove at trial,'" id. (quoting United States v. Gandia-Maysonet,
227 F.3d 1, 3 (1st Cir. 2000)). However, "[t]he manner in which
the charge is explained and the method for determining the
defendant's understanding of the charge will vary from case to case
depending upon the complexity of the charges, the capacity of the
defendant, and the attendant circumstances." United States v.
Cotal-Crespo, 47 F.3d 1, 6 (1st Cir. 1995). Furthermore, "[i]t is
not necessary that the explanation of the charges come directly
-3-
from the court . . . if it can be discerned from a review of the
proceeding that the defendant nevertheless understood the charges."
Id. at 5.
Under those standards, the district court's explanation
of the conspiracy charge in this case was sufficient. "'[While the
subtleties of conspiracy law may be the bane of criminal law
students, the basic principle is easily understood: a group of
people agreeing to do something illegal.'" Cotal-Crespo, 47 F.3d
at 6 (quoting United States v. Carter, 815 F.2d 827, 829 (1st Cir.
1987)). In more legalistic terms, "the criminal agreement itself
is the actus reus," United States v. Shabani, 513 U.S. 10, 16
(1994); to establish a violation of 21 U.S.C. § 846, the Government
need not prove the commission of any overt acts in furtherance of
the conspiracy," id. at 15.
Here, Paulino pled guilty to conspiring to possess heroin
with intent to distribute it. After he stated that he did not know
that the money he received from his co-conspirators was the
proceeds of the sale of drugs and that he did not see any drugs,
the court explained that "[t]he fact that you didn't see drugs
doesn't mean anything. As long as you thought you were dealing
with drugs . . . that's part of the elements of conspiracy, an
agreement to commit a crime." After furthering questioning,
Paulino agreed that he "did know that the case had to do with
drugs" and that he met with his co-conspirators on a particular
-4-
date to discuss stealing a kilogram of heroin. On the basis of
that colloquy, the magistrate judge reported that Paulino was
"aware of the nature of the offenses charged" and recommended that
the court accept his guilty plea. Similarly, in accepting that
report and recommendation, the district court concluded that
Paulino's plea "contain[ed] all elements of the offense charged in
the indictment." We see no abuse of discretion in those
determinations.
For much the same reasons, we conclude that the district
court did not abuse its discretion in adopting the magistrate
judge's determination that Paulino "underst[ood] that the charges
are supported by the government's evidence." Although "Rule 11
requires a court to 'determine that there is a factual basis for
the plea' before entering judgment," United States v. Delgado-
Hernández, 420 F.3d 16, 19 (1st Cir. 2005) (quoting Fed. R. Crim.
P. 11(b)(3)), the question before the court in making that
determination "'is not whether a jury would, or even would be
likely, to convict: it is whether there is enough evidence so that
the plea has a rational basis in facts that the defendant concedes
or that the government proffers as supported by credible
evidence.'" Id. (quoting Gandia-Maysonet, 227 F.3d at 6). In
other words, all that is required is "'some . . . basis for
thinking that the defendant is at least arguably guilty.'" Id.(quoting Gandia-Maysonet, 227 F.3d at 6).
-5-
Here, the relevant facts--Paulino's agreement with his
co-conspirators to steal "kilogram weights" of heroin--came both
from Paulino's own admission that he so agreed and from the
government's proffer of audio and video tape-recordings of Paulino
at the meeting where the agreement was made. The mere fact that
Paulino initially disputed the peripheral fact that the money he
later received was the product of the sale of the heroin does not
dispel the factual basis for his plea. "That sort of temporary
contradiction is inherent in virtually every change of plea."
Negrón-Narváez, 403 F.3d at 39; see also United States v. Cheal,
389 F.3d 35, 41 (1st Cir. 2004). What matters is whether "his
final answer . . . comprised a factual basis sufficient to allow
the district court to accept the proffered plea." Negrón-Narváez,
403 F.3d at 39. Based on "[t]he government['s] . . . . extensive
proffer of its evidence[,] with which [Paulino] concurred in
pertinent part," the magistrate judge "determined that there is a
basis in fact and evidence to establish all elements of the
offenses charged" and accordingly recommended that the plea be
accepted. We see no abuse of discretion in the district court's
adoption of that report and recommendation.
Affirmed. See 1st Cir. R. 27(c).
-6-