
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1403                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  MARK A. FERGUSON,                                Defendant, Appellant.                                 ____________________                   ON APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                        [Hon. Rya Zobel, U.S. District Judge]                                         ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                                Lynch, Circuit Judge,                                       _____________                        and Schwarzer,* Senior District Judge.                                        _____________________                                 ____________________               Roderick B. O'Connor, for defendant, appellant Mark A.               ____________________          Ferguson.               Thomas G. Frongillo, Assistant United States Attorney, for               ___________________          the United States.                                  ____________________                                    July 20, 1995                                 ____________________                                        ____________________               *Of  the   Northern  District  of   California,  sitting  by          designation.                      LYNCH, Circuit Judge.  On  June 24, 1993, a federal                      LYNCH, Circuit Judge.                               _____________            grand jury returned a 38-count indictment  charging appellant            Mark A.  Ferguson and  twelve others  with violations  of the            drug   laws.    The  indictment  charged  Ferguson  with  (1)            conspiracy  to  distribute  cocaine   and  cocaine  base   in            violation of  21 U.S.C.    846 (Count  2), (2)  possession of            cocaine with intent to distribute in violation of 21 U.S.C.              841(a)(1)  (Count 4);  (3) distribution  of  cocaine base  in            violation of 21 U.S.C.   841(a)(1) (Counts 7, 8, 14, 17); (4)            distribution of cocaine in violation of 21 U.S.C.   841(a)(1)            (Count 11); (5) attempted distribution of heroin in violation            of 21  U.S.C.    846 (Count 12);  and (6)  unlawful use  of a            communication facility  in violation  of 21  U.S.C.    843(b)            (Counts  34, 35,  and 37).   Ferguson  was also  charged with            aiding and  abetting in violation of 18 U.S.C.    2 on all of            the  substantive drug counts (Counts 4,  7, 8, 11, 12, 14 and            17).                      On December 3, 1993, Ferguson pled guilty to Counts            2, 7, 8,  11, 12, 14, 17,  34, 35, and  37 of the  indictment            pursuant to a written plea agreement with the United  States.            Count 4 was dismissed.  On April  7, 1994, the district court            sentenced  Ferguson to 120 months imprisonment and five years            supervised  release on Counts 2, 8, 14,  and 17, to be served            concurrently;  120 months imprisonment  on Counts 7,  11, and                                         -2-                                          2            12, to be  served concurrently with one another  and with the            sentences  for  Counts  2,  8,  14, and  17;  and  48  months            imprisonment  on  Counts  34,  35,  and  37,  to  be   served            concurrently  with one  another and  with  the sentences  for            Counts 2,  8, 14, and  17.   The district court  also ordered            Ferguson  to  pay a  $500  special assessment,  $50  for each            count.    On April  12, 1994,  Ferguson appealed,  seeking to            withdraw his guilty plea.                      Because  Ferguson  seeks   to  withdraw  his   plea            following the imposition  of his sentence, he must  show that            the  plea proceedings were  marred by "'a  fundamental defect            which   inherently  results  in  a  complete  miscarriage  of            justice' or  'an omission  inconsistent with the  rudimentary            demands of  fair procedure.'"   Fed. R.  Crim. P.  32(d) [now            Rule  32(e)] advisory  committee's  note  to 1983  amendments            (quoting  Hill v. United  States, 368  U.S. 424  (1962)); see                      ______________________                          ___            also United States v. Japa, 994 F.2d 899, 902 (1st Cir. 1993)            ____ _____________________            (stating that the  benchmark for setting  aside a plea  post-            sentencing  is  "a  fundamental defect  or  a  miscarriage of            justice").  Ferguson's appeal does not meet this standard.                      Ferguson argues that  his plea should be  set aside            because the district  court failed to take  adequate steps at            his plea  hearing  to  determine  that his  guilty  plea  was            knowingly  and  voluntarily  made.    Specifically,  Ferguson            contends that  the district  court violated  Federal Rule  of                                         -3-                                          3            Criminal Procedure 11(c)(1) by failing to explain the charges            to him and to determine that he understood the charges.  Rule            11(c)(1)  requires,  among  other  things,  that   the  court            accepting  the plea "address the defendant personally in open            court and  inform the defendant  of, and  determine that  the            defendant understands . . .  (1) the nature of the charges to            which the plea  is offered . .  . ."   The record shows  that            Ferguson's  plea neither  was a  miscarriage  of justice  nor            resulted from  procedures inconsistent  with the  rudimentary            demands of fair procedure.1                      The record  of the plea  hearing demonstrates  that            the district court took a number of steps to ensure that  the            concerns underlying Rule 11(c) (particularly those underlying            11(c)(1))  were addressed.  The district court asked Ferguson            his  age  (25)  and   educational  background  (11th  grade).            Ferguson informed the court that he had  read the indictment,            had discussed it with his attorney, and that his attorney had                                            ____________________            1.  Ferguson's  argument on appeal is limited to the question            of  whether the district  court complied with  Rule 11(c)(1).            He does  not argue that  the district court failed  to comply            with the  requirements of  Rule 11(d) when  it failed  to ask            Ferguson at the plea hearing whether his willingness to plead            guilty  resulted from discussions  with the attorney  for the            government.  See Fed. R. Crim. P. 11(d)("The court shall also                         ___            inquire  as to whether  the defendant's willingness  to plead            guilty  or nolo  contendere  results from  prior  discussions            between the attorney for the government  and the defendant or            the  defendant's attorney.").   Any  argument  based on  Rule            11(d), therefore, has  been waived.  See, e.g.,  Pignons S.A.                                                 ___  ____   ____________            de Mecanique v. Polaroid Corp., 701 F.2d 1, 3 (1st Cir. 1983)            ______________________________            (arguments  not  presented  in initial  brief  on  appeal are            waived).                                          -4-                                          4            explained  to him  what it  meant.   The district  court also            asked Ferguson whether he understood that he had been charged            with crimes similar  to the ones that the  district court had            described   earlier  in  the  hearing  to  Yancy  Calhoun,  a            codefendant charged under the same counts who pled  guilty at            the same  hearing.   Ferguson, who had  been present  for the            description  of the charges  against Calhoun, stated  that he            did.2                      Further, during the course of the plea hearing, the            district  court informed  Ferguson  of  the  charges  in  the            indictment; it  informed him  of the  potential penalties  he            faced; it informed  him of the rights he  would be waiving by            pleading guilty;  it ensured that  the factual basis  of each            offense was presented  in open court in  Ferguson's presence;            it repeatedly  asked  him  if he  understood;  and  it  asked            questions  of Ferguson about each of the substantive offenses            to   determine  whether  he   understood  what   conduct  the            government  alleged   formed  the  basis   of  his   criminal            conduct.3  When Ferguson asked  to be allowed to consult with                                            ____________________            2.  Ferguson  had  also executed  a  written  plea agreement.            Indeed,  he  had  executed the  agreement  after  refusing to            execute an earlier one proffered by the government because he            did not like one of its clauses.            3.  The district court asked  Ferguson specifically about all            of the counts to which he was pleading  guilty, except one --            Count  2, the conspiracy charge.  Although the district court            did  not ask Ferguson specifically  about Count 2, the nature            of   the  conspiracy  charge   was  explained  thoroughly  to            codefendant  Patrick Culbreath  in  Ferguson's presence,  and                                         -5-                                          5            his mother, he was  permitted to do  so.  Finally, the  court            specifically  asked Ferguson whether he was entering his plea            voluntarily and Ferguson replied that he was.                      On appeal, Ferguson  appears to refer to  only four            counts,  Counts 8,  12,  14, and  17,  as being  problematic.            Ferguson  points out that during  the plea hearing, he denied            some of the factual foundations of these counts and exhibited            reluctance to admit that he  knew that drugs were involved in            the transactions underlying those  counts.  To be  sure, some            of  Ferguson's responses to  the court's questions  about his            involvement in Counts 8, 12, 14 and 17 show some confusion on            his part over the precise requirements for the offenses.  But            when  Ferguson gave such  responses, the district  court made            additional  inquiries   of  Ferguson,  asking  him   what  he            understood  his role to have  been in the  offense.  And when            questioned  on these counts, Ferguson often admitted to facts            sufficient  to  uphold  the  charges  and, more  importantly,            exhibited  a basic  understanding of  the  conduct which  the            government alleged  was  criminal.4    The  court's  detailed                                            ____________________            Ferguson does not  claim on appeal that such  a procedure was            inadequate to apprise him of the nature of that charge.            4.  Count 8  was based on a July 16, 1992 drug transaction at            the  Brigham and  Women's  Hospital  at  which  Ferguson  was            present.  Although  at first Ferguson  denied knowing that  a            drug  sale was occurring,  upon further questioning  from the            court,   he  admitted  to  the  court  that  he  entered  the            undercover  officer's vehicle and  told him that  the persons            delivering the cocaine would "be  there."  Count 12 was based            on a September  15, 1992 attempted sale of heroin  at the New                                         -6-                                          6            inquiry on these counts supports the conclusion that Ferguson            understood the  nature of  the charges  against him  on these            counts.  See United States  v. Pellerito, 878 F.2d 1535, 1542                     ___ ___________________________            (1st  Cir.  1989)  (a  searching   Rule  11  inquiry  was  "a            circumstance of some importance" in showing that the district            court properly determined that  the defendant understood  the            nature of the charges to which he was pleading guilty).                      Indeed, Ferguson's claim that he did not understand            the  nature  of these  charges is  seriously undercut  by his            clear admission at  the plea hearing of his guilt on Count 7,            a distribution  charge under  21 U.S.C.    841(a)(1)  arising            from a  transaction in which Ferguson delivered  cocaine to a                                            ____________________            England Medical Center.   As  to this  count, the  government            stated that Ferguson  had delivered to an  undercover officer            three bricks of what was supposed to have been heroin and was            later  determined to be procaine,  a cutting agent.  Although            Ferguson initially denied his involvement in the transaction,            Ferguson  eventually  agreed   with  the  government   as  to            everything  it  stated regarding  the transaction  during the            plea hearing except its claim that he had been the person who            physically  delivered the bricks  to the  undercover officer.            He admitted being  involved in  the transaction  and that  he            believed  at the  time  of the  transaction that  it involved            drugs.                      Count  14  involved   an  October  29,   1992  drug            transaction at a Farmer's Market on River Street in Boston at            which  Ferguson   was  present.    Again,  although  Ferguson            initially  indicated  that   he  was  unaware  that   a  drug            transaction was occurring when he was at the Farmer's Market,            he later stated that  while he was at the Farmer's Market lot            in his car he "surmised" that the transaction involved drugs.                      Finally,  Count 17 involved a February 4, 1993 drug            transaction  at a Mobil gas station in Mattapan that Ferguson            aided.   As Ferguson notes  in his brief,  he admitted at the            plea hearing to delivering a message to one of the principals            that the transaction would go forward on a certain date.                                         -7-                                          7            co-conspirator's  house  to  have   it  cooked  into  crack.5            Ferguson concedes on appeal that  he understood the nature of            the  charge contained in  Count 7.   Counts 8  and 14, which,            like Count  7, were each  charges of distribution  of cocaine            base in violation of 21 U.S.C.   841(a)(1),  involved conduct            identical in  nature to that  charged in Count 7,  and simply            involved acts occurring on different dates involving the same            basic  actions.   Similarly,  Count 12,  while  styled as  an            "attempt"  because  of   the  chemical  composition  of   the            substance  distributed, was  also essentially  a distribution            charge.6     Under  these  circumstances,   Ferguson  "should                                            ____________________            5.  The  government has noted that because of this admission,            Ferguson's appeal, even if successful, will have no effect on            his term of imprisonment because Ferguson  was sentenced to a            concurrent 120 months of imprisonment  on Count 7.  This fact            does  not mean  that  this  appeal fails  to  present a  live            controversy,  however.  The  other  counts apparently  impose            longer periods of supervised release than Count 7 (five years            for Counts  2, 8, 14, and 17, as  compared to three years for            Count  7)  and  each  count  increased  the  amount  of   the            assessment  ($50 per  count).   Moreover,  Ferguson may  face            collateral consequences for his convictions on the additional            counts.  Cf. Benton v.  Maryland, 395 U.S. 784, 787-91 (1969)                     ___ ___________________            (the  existence   of  concurrent  sentences   does  not   bar            consideration of  challenges to multiple  convictions because            there  may  be   collateral  consequences  to   the  multiple            convictions).  Thus, there is  enough at stake in this appeal            to have us decide whether Ferguson may  properly withdraw his            plea as to the other counts.                   6.  Ferguson's  involvement in Count  17 was presented  on an            aiding and abetting  theory.  Whether  or not Ferguson  fully            understood the subtleties of aiding and abetting law,  at the            hearing he  acknowledged a  basic understanding  that he  was            being  charged with facilitating  the offense when  he stated            that he told the undercover officer that the drug transaction            of February 4 was "on" for that night.                                              -8-                                          8            reasonably have .  . . understood,"  United  States v. Cotal-                                                 ________________________            Crespo,  47 F.3d  1, 4  (1st Cir.  1995), the  nature  of the            ______            charges to which he was pleading guilty on  Counts 8, 12, and            14.                       Although  the  defendant's   understanding  of  the            nature of  the charges to  which he  is pleading  is a  "core            concern" of Rule 11, see  Cotal-Crespo, 47 F.3d at 4,  in the                                 ___  ____________            absence of a total failure  to address this concern, the plea            cannot be set  aside unless  the irregularities  in the  plea            proceeding affect the defendant's "substantial rights."  Fed.            R. Crim. P. 11(h) ("Any variance from the procedures required            by this  rule which does not affect  substantial rights shall            be  disregarded.").   Ferguson has  not  articulated how  the            district court's  plea proceedings  affected his  substantial            rights.  He does  not argue that he pled guilty  to crimes he            did not commit.  He did not object to the presentence report,            which established a  factual basis for the plea.   Cf. United                                                               ___ ______            States v. Zorrilla, 982 F.2d 28, 30 (1st Cir. 1992) (district            __________________            court's failure to  determine factual basis for the  plea was            harmless  error under Rule 11(h) where the presentence report            and probable cause hearing  revealed that appellant's conduct            satisfied the elements  of the crime charged),  cert. denied,                                                            ____________            113 S. Ct. 1665  (1993).  Nor  does Ferguson suggest that  if            the   court  had  conducted   a  further  inquiry   into  his            understanding of the nature of the offense, he would not have                                         -9-                                          9            pled guilty.  See  id. at 31  ("As appellant has suffered  no                          ___  ___            concrete prejudice other than entering a plea he now regrets,            we cannot set his plea aside.").                       Given  that Ferguson  has  not shown  a  sufficient            deviation  from the  Rule 11  requirements  to overcome  Rule            11(h),  it follows that he has  not met his burden under Rule            32(e)  of showing  a  "'fundamental  defect which  inherently            results in a complete miscarriage of justice' or 'an omission            inconsistent   with   the   rudimentary   demands   of   fair            procedure.'"   Fed.  R.  Crim.  P.  32(d)  [now  Rule  32(e)]            advisory committee notes to 1983 amendments.  Ferguson is not            entitled to withdraw his guilty plea.                      For the  foregoing reasons, Ferguson's  judgment of            conviction is affirmed.                          ________                                         -10-                                          10
