

                United States Court of Appeals
                    For the First Circuit

                                         

No. 96-1420

                  UNITED STATES OF AMERICA,

                     Plaintiff, Appellee,

                              v.

              RAFA L NORIEGA-MILL N, A/K/A RAFI,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

        [Hon. H ctor M. Laffitte, U.S. District Judge]                                                                 

                                         

                            Before

                    Boudin, Circuit Judge,                                                     

         Campbell and Bownes, Senior Circuit Judges.                                                               

                                         

Juan David Vilar -Col n on brief for appellant.                                   
Jeannette Mercado-R os, Attorney, with whom Guillermo Gil, United                                                                     
States Attorney, Jos  A. Quiles-Espinosa, Senior Litigation Counsel,                                                
and Antonio R. Baz n, Assistant United States Attorney, were on brief                            
for appellee.

                                         

                        April 7, 1997
                                         

          BOWNES, Senior Circuit Judge.   Defendant-appellant                      BOWNES, Senior Circuit Judge.                                                  

Rafael Noriega-Millan petitioned the district court to change

his plea from not guilty to guilty as to all eleven counts of

a superseding indictment charging him with violating a number

of  federal firearms  laws.   Count  nine, charging  Noriega-

Millan  with possession of a  machine gun in  violation of 18

U.S.C.    922(o),   carried  a   ten-year  maximum   term  of

imprisonment.  For each of the remaining  counts, the maximum

term of  imprisonment was  five years.    The district  court

accepted  Noriega-Millan's plea  at  a  joint  change-of-plea

hearing at which Noriega-Millan and two of his co-defendants,

each represented by counsel, pleaded guilty.  

          Noriega-Millan  entered his guilty plea pursuant to

an  agreement which  stipulated  that  the government  would,

among other things, reduce the total offense level from 31 to

28,  and recommend a sentence of 97 months of imprisonment, a

sentence in  the  middle of  the applicable  range of  87-108

months  of  imprisonment.   At  the  sentencing hearing,  the

district   court  declined   to   accept   the   government's

recommendation  of a  97-month term  and imposed  the maximum

sentence of 108 months,  to be served concurrently as  to all

counts of the indictment.

          On  appeal, Noriega-Millan  argues that  his guilty

plea should be set aside because, although the district judge

complied with Rule  11(e)(2) of the Federal Rules of Criminal

                             -2-                                          2

Procedure by warning him that the court was not  bound by the

government's recommendations, the judge failed, in derogation

of Rule 11(e)(2) and Noriega-Millan's substantial rights,  to

advise him that  he would  not be permitted  to withdraw  his

plea  if  the  court  declined  to  accept  the  government's

recommendations.   We affirm  the judgment of  conviction and

the sentence.  

                             I.                                           I.

          The only issue on  appeal concerns the procedure by

which  Noriega-Millan's  plea  of  guilty  was  entered   and

accepted, as to which the record reveals the following.  

          Noriega-Millan's  plea  agreement  states that  the

agreement  was made pursuant to Rules 11 (e)(1)(A) and (B) of

the  Federal Rules  of  Criminal Procedure.1   The  agreement

provided that Noriega-Millan would plead guilty to all counts

of the indictment in  exchange for the government's agreement

to  do the following: (i)  reduce the total  offense level by

three levels  from 31 to 28 for acceptance of responsibility;

(ii) recommend a sentence of 97 months of imprisonment, based

upon  an estimated  total offense  level  of 28  and criminal

history category of II, for which the sentencing range is 87-

108 months of imprisonment; and (iii) raise no opposition  to

                                                    

1.  Plea agreements made under  Rules 11(e)(1)(A) and (C) are
subject  to  different   procedural  requirements  than   are
agreements made under Rule 11(e)(1)(B).  The Rule 11(e)(1)(A)
portion of Noriega-Millan's agreement is not at issue in this
appeal and will not be discussed.

                             -3-                                          3

a  recommendation of  a  sentence at  the  lower end  of  the

applicable range, if such a recommendation were to be made by

the United States Probation Office in its Presentence Report.

          Prior to the change-of-plea hearing, Noriega-Millan

reviewed the plea agreement with his attorney, at  which time

he initialed each  page of the document at  the center of the

left margin,  and signed his name in two places at the end of

the document.2   Paragraph  six of  the  agreement states  as

follows:

               The  defendant  is  aware  that  the
          defendant's sentence is within  the sound
          discretion  of  the sentencing  judge and
          will  be imposed  in accordance  with the
          United   States   Sentencing  Guidelines,                                                               
          Policy   Statements,   Application,   and                                                               
          Background Notes.  The defendant is aware                                      
          that  the  Court  has   jurisdiction  and
          authority to impose  any sentence  within
          the statutory maximum set for the offense
          to which the defendant pleads guilty.  If
          the Court should impose  a sentence up to
          the maximum established  by statute,  the
          defendant cannot, for that  reason alone,
          withdraw a  guilty plea, and  will remain
          bound  to fulfill all  of the obligations
          under this plea agreement. 

          Paragraph  ten of the  agreement states, "Defendant

Rafael  Noriega Millan is fully  aware that the  Court is not

bound by  this plea agreement, including but  not limited to:

                                                    

2.  The plea agreement contained  in the record on  appeal is
in  English; the  transcript of  the change-of-plea  hearing,
however,  indicates   that   Noriega-Millan  had   read   and
understood a Spanish version of the agreement. 

                             -4-                                          4

sentencing  guidelines   calculations,  stipulations,  and/or

sentence recommendations."

          In  contrast to  plea  agreements made  pursuant to

Rules 11(e)(1)(A) and (C), Rule 11(e)(1)(B) agreements cannot

be withdrawn if  the court chooses to reject the terms of the

agreement;  once  accepted  by  the district  court,  a  Rule

11(e)(1)(B) agreement "foreclose[s]  forever the  defendant's

other options."  United States v. Graibe, 946 F.2d 1428, 1432                                                    

(9th  Cir. 1991).  For  this reason, when  a defendant pleads

guilty pursuant to a Rule 11(e)(1)(B) agreement, the district

judge  is required by  Rule 11(e)(2) to  advise the defendant

that the  court is not  obligated to accept  the government's

recommendations and that the  defendant will not be permitted

to withdraw her guilty plea in  the event that the court does

not follow the government's recommendations.  

          The  Supreme Court has  stressed the  importance in

Rule 11 proceedings of  direct interrogation of the defendant

by   the  district   court   in  order   to  facilitate   the

determination of  the voluntariness  of a defendant's  guilty

plea.  McCarthy v.  United States, 394 U.S. 459,  467 (1969).                                             

In  addition,  this  court  has repeatedly  stated  that  the

defendant's  acknowledgement  of a  signed plea  agreement or

other  written document  will  not substitute  for Rule  11's

requirement of  personal examination by  the district  court.

See  United States v.  Martinez-Martinez, 69 F.3d  1215, 1220                                                    

                             -5-                                          5

(1st Cir. 1995), cert. denied, --- U.S. ---, 116  S. Ct. 1343                                         

(1996); United States v. Lopez-Pineda,  55 F.3d 693, 696 (1st                                                 

Cir.), cert. denied, --- U.S. ---, 116 S. Ct. 259 (1995); see                                                                         

also  United States v.  Kennell, 15 F.3d  134, 136,  137 (9th                                           

Cir. 1994).     

          A joint change-of-plea hearing was held on July 31,

1995, with Noriega-Millan and two co-defendants present, each

represented  by  counsel.    Although   the  judge  sometimes

addressed  himself to all  three defendants  collectively, he

engaged in individual colloquies with Noriega-Millan and each

co-defendant regarding the following: his competence to plead

guilty;  the voluntariness  of  his plea;  his knowledge  and

understanding of  the charges  against him and  the penalties

attending  the  charges; and  whether  he  had consulted  his

attorney  regarding the charges and the  plea agreement.  The

judge addressed the  defendants collectively regarding  their

awareness and understanding of the constitutional rights they

waived by entering a plea of guilty.  Throughout the hearing,

the court  addressed the  defendants through an  interpreter,

although  Noriega-Millan  sometimes   answered  the   court's

questions in English.

          In response to  the court's questioning during  his

individual colloquy, Noriega-Millan acknowledged, inter alia,                                                                        

that  he had reviewed the plea  agreement with the assistance

of  counsel prior to the  hearing, and that  his attorney had

                             -6-                                          6

explained the agreement to  him before he signed it;  that he

had  read the plea agreement and understood everything in it;

that he was aware  that his criminal history category  was II

and  that  the total  offense level  was  28, based  upon the

government's  recommendation of a  three-level reduction from

offense level  31 for  acceptance of responsibility;  that he

understood that  the sentencing  range specified in  the plea

agreement was 87-108  months of imprisonment; that,  pursuant

to  the  plea agreement,  the  government  would recommend  a

sentence of 97 months of imprisonment; and that he understood

that the government's  recommendations were not  binding upon

the court.  

          The district judge gave  the Rule 11(e)(2) warnings

to  each  defendant  separately,   rather  than  to  all  the

defendants  collectively.   During his  individual colloquies

with  Noriega-Millan's  co-defendants,  the   district  judge

warned each defendant both that  the court was not  obligated

to accept  the  government's  recommendations  and  that  the

defendant  would not be permitted to withdraw his plea if the

court  did  not  follow  the   government's  recommendations.

During his individual  colloquy with Noriega-Millan, however,

the  district judge advised him  only that the  court was not

bound to follow the  government's recommendations; he did not

warn  Noriega-Millan  that  he  would  not  be  permitted  to

withdraw  his  plea  in   the  event  that  the  government's

                             -7-                                          7

recommendations were not followed.  On  November  2, 1995,  a

sentencing hearing was held at which  Noriega-Millan appeared

as  the sole defendant, again represented by counsel.  At the

sentencing hearing,  as at  the  change-of-plea hearing,  the

district  judge warned that  the government's recommendations

were not binding upon  the court but did not  advise Noriega-

Millan that he  would not be allowed to  withdraw his plea if

the court were to reject the government's recommendations.  

          After  permitting  Noriega-Millan  to  address  the

court   regarding  his   family  ties   and  his   desire  to

rehabilitate   himself,  the  district   court  accepted  the

government's recommendation regarding  concurrent service  of

sentence but  rejected its recommendation of  a 97-month term

of imprisonment,  instead  sentencing Noriega-Millan  to  the

maximum term  of 108 months,  to be served  concurrently with

the sentences imposed on other counts.  Noriega-Millan raised

no  objection to the sentence and made no attempt to withdraw

his plea in the district court.  This appeal followed.

                             II.                                          II.

          Federal  Rule  of  Criminal Procedure  11(e)(1)(B),

which  governs Noriega-Millan's  plea  agreement, provides  a

procedure by which a  defendant may agree to plead  guilty in

exchange  for   the   government's  agreement   to  "make   a

recommendation, or agree[ment] not to oppose the  defendant's

request,  for a  particular sentence, with  the understanding

                             -8-                                          8

that such recommendation or request shall not be binding upon

the court."  Rule 11(e)(2) provides that, before the district

court may accept  a guilty  plea entered pursuant  to a  Rule

11(e)(1)(B)  agreement, "the court shall advise the defendant

that  if the  court  does not  accept  the recommendation  or

request the  defendant nevertheless has no  right to withdraw

the plea."

          Noriega-Millan  asserts  that he  did  not  move to

withdraw his  plea prior to  sentencing because he  had hoped

that  the  district  court  would  follow  the   government's

recommendation  of a 97-month sentence, and that he would not

have pleaded guilty had he known that he would not be allowed

to withdraw his plea if the district court did not follow the

government's recommendation.   He contends that  the district

court's  failure  to  give  this  required  warning  was  not

harmless  error because, as a result of the court's error, he

did not understand the consequences  of his guilty plea  and,

therefore,   his  plea  was  not  knowingly  and  voluntarily

entered.  Noriega-Millan raises these arguments for the first

time on appeal.  

          Ordinarily, we deem an  issue not raised before the

district  court to  be waived.   We will,  however, determine

compliance with  Rule 11, even  if a claim  of non-compliance

was not presented  in the  district court, if  the record  is

sufficiently developed, which  is generally the  case because

                             -9-                                          9

of Rule 11(g)'s  requirement that the  district court make  a

complete  record  of the  plea  proceedings.   See  Martinez-                                                                         

Martinez,  69 F.3d  at 1219  &amp; n.4;  United States  v. Parra-                                                                         

Ibanez, 936 F.2d 588, 593 (1st Cir. 1991).3                    

          Where, as here, the defendant seeks to withdraw his

plea after he has been sentenced, based  upon a defect in the

Rule  11 proceedings  that is  alleged to  have  affected his

knowledge of  the consequences of his  plea, appellate review

is  entirely  consistent  with  Federal  Rules   of  Criminal

Procedure  11 and 32(e).  First, the harm alleged by Noriega-

Millan is clearly of the type that Rule 11(e)(2) was designed

to alleviate.  See United States v. Theron, 849 F.2d 477, 479                                                      

(10th Cir. 1988); see also United States v. Padin-Torres, 988                                                                    

F.2d  280, 283  (1st  Cir. 1993)  (explaining  that "Rule  11

objections, so far as they affect the 'knowing'  character of

the plea,  are treated  with extra solicitude");  Graibe, 946                                                                    

F.2d at 1432 (explaining that  Rule 11(e)(2) was designed  to

ensure  the   "informed  voluntariness"  of   guilty  pleas).

Moreover,  Rule 32(e)  --  which provides  that the  district

court  may permit a defendant to withdraw his guilty plea for

"any fair  and just reason"  before sentence is  imposed, but                                               

                                                    

3.  If the determination of  compliance with Rule 11 requires
additional fact  finding, "a defendant cannot  seek relief on
direct  appeal,  but must  collaterally  attack  the Rule  11
proceedings under  28 U.S.C.   2255."   Martinez-Martinez, 69                                                                     
F.3d at 1219 (citing  Parra-Ibanez, 936 F.2d at 593;  Fed. R.                                              
Crim. P. 32(e)). 

                             -10-                                          10

that a defendant who seeks to set aside his guilty plea "[a]t

any later time" may raise the claim "only on direct appeal or

by  motion  under  28 U.S.C.     2255"  --  plainly allows  a

defendant  who seeks to set aside his plea after sentence has

been imposed to  do so on direct  appeal.  Where  a defendant

challenges  the  validity of  a plea  for  the first  time on

appeal, however, "he  or she  faces a high  hurdle," and  can

succeed only  by demonstrating that there  was "a substantial

defect in the Rule  11 proceeding itself."  United  States v.                                                                      

Miranda-Santiago,  96  F.3d  517, 522  &amp;  nn.8,  9 (1st  Cir.                            

1996).4     

          Because  a  defendant  who  enters  a  guilty  plea

"simultaneously   waives   several  constitutional   rights,"

McCarthy,  394 U.S.  at 466,  due process  requires that  the                    

defendant's  entry of a guilty plea  be a voluntary, knowing,

and intelligent  act, "done with sufficient  awareness of the

relevant  circumstances  and  likely consequences,"  Brady v.                                                                      

United States,  397 U.S. 742, 748  (1970) (footnote omitted).                         

Rule 11 gives effect to this  principle by requiring district

                                                    

4.  Although  Rule 11(h) provides  that "[a]ny  variance from
the procedures required  by this rule  which does not  affect
substantial rights shall be disregarded," the harmless  error
rule does not necessarily mandate  the standard of review  in
this  case.  As we  have previously acknowledged,  the law in
this circuit regarding the  burden of an appellant who  seeks
to  set aside a guilty  plea on direct  appeal, without first
having  brought a motion to withdraw the plea in the district
court, is  "somewhat cloudy."  See  Miranda-Santiago, 96 F.3d                                                                
at 522  n.9 (citing  Martinez-Martinez, 69 F.3d  at 1219-20).                                                  
We need not resolve the issue in this case.

                             -11-                                          11

courts to follow certain  procedures "designed to ensure that

defendants   who  enter   guilty  pleas   do  so   with  full

understanding   of  the   nature  of   the  charge   and  the

consequences of their  plea."  Lopez-Pineda,  55 F.3d at  695                                                       

(citations,   internal   quotation   marks,  and   alteration

omitted).   Compliance with Rule 11's  procedures enables the

district court  to determine for itself  the voluntariness of

the  plea  and   "facilitates  that   determination  in   any

subsequent post-conviction proceeding based upon a claim that

the plea was involuntary."   Id. at 696  (citations omitted).                                            

We determine the  validity of a plea in view  of the totality

of  the   circumstances  surrounding  the  Rule  11  hearing.

Miranda-Santiago, 96 F.3d at 522-23 &amp; n.11; United States  v.                                                                     

Cotal-Crespo, 47 F.3d 1, 4 (1st Cir.), cert. denied, --- U.S.                                                               

---, 116 S. Ct. 94 (1995); Padin-Torres, 988 F.2d at 284.                                                    

          The  effect of  a failure  to comply  with  Rule 11

depends upon the nature of the failure.   This court has held

that  a guilty plea should  be set aside  only for violations

that implicate the  "core concerns"  of Rule 11  and not  for

mere   technical   violations   of   the   rule's  procedural

requirements.  See, e.g., Cotal-Crespo,  47 F.3d at 4; United                                                                         

States v. Allard, 926 F.2d 1237,  1244 (1st Cir. 1991).  This                            

is  "especially true if the  defendant was not  misled or the

omission did not affect  his decision."  Allard, 926  F.2d at                                                           

1244.    Rule 11's  core  concerns are  absence  of coercion,

                             -12-                                          12

understanding   of   the  charges,   and  knowledge   of  the

consequences of the  guilty plea.  See Cotal-Crespo,  47 F.3d                                                               

at  4 (citing Allard, 926  F.2d at 1244-45).   In determining                                

whether the core concerns of Rule 11 have been satisfied, the

court "should not  exalt form over substance  but should look

to  the reality of the  situation as opposed  to the ritual."

Allard, 926 F.2d at 1245.                    

          In  claiming  that, as  a  result  of the  district

judge's failure to give  the second of the two  Rule 11(e)(2)

warnings,  he  did not  understand  the  consequences of  his

guilty plea, Noriega-Millan raises a core concern of Rule 11.

Nonetheless, we cannot  set aside a plea  where the appellant

"has  suffered no  concrete prejudice  other than  entering a

plea he now regrets."  United States v. Zorilla, 982 F.2d 28,                                                           

31 (1st Cir. 1992).  We find that, in view of the totality of

the circumstances,  the  district court's  failure to  advise

Noriega-Millan that he would not be permitted to withdraw his

plea  did  not amount  to a  substantial  defect in  the plea

proceedings and  did not, as Noriega-Millan claims, adversely

affect his substantial rights.  "The heart of  the matter  is

whether the defendant would have  entered the guilty plea had

he  known  that  there  was  a  probability  of  receiving  a

substantially  greater sentence than  that recommended in the

plea agreement."  Kennell, 15  F.3d at 136.  See  Allard, 926                                                                    

F.2d at  1244; United  States v.  Diaz-Vargas, 35 F.3d  1221,                                                         

                             -13-                                          13

1224 (7th Cir. 1994);  United States v. Vaughn, 7  F.3d 1533,                                                          

1535  (10th Cir.  1993).   The  record reveals,  and Noriega-

Millan does  not dispute, that the  district judge personally

warned him that  the court  was not obligated  to follow  the

government's   sentencing  recommendations,   and  personally

ensured  that Noriega-Millan  understood  that, although  the

government had  agreed to recommend a  97-month sentence, the

maximum sentence that the court could impose  was 108 months.

Given  these facts and  Noriega-Millan's willingness to plead

guilty  in exchange for a  97-month sentence, it  seems to us

highly  unlikely that,  properly warned  of his  inability to

withdraw his guilty plea once it was accepted, Noriega-Millan

would  have  chosen  to go  to  trial  rather  than risk  the

possibility that  the district court might  impose a sentence

eleven  months  longer   than  the  government's  recommended

sentence.   We conclude that  the district court's failure to

warn Noriega-Millan of his inability to withdraw his plea did

not affect his decision to plead guilty.

          Our conclusion is  supported by  Martinez-Martinez,                                                                        

in  which  we  found  the  advisement  requirements  of  Rule

11(e)(2) to  be satisfied  where the  district judge  did not

explicitly inform  the defendant that she  could not withdraw

her guilty plea, but where the court "personally ensured that

[the  defendant] understood  the  non-binding nature  of  the

[government's]  recommendation."   69 F.3d  at 1223-24.   Our

                             -14-                                          14

view is also supported by similar  cases from other circuits,

which  found  the  district  court's failure  to  advise  the

defendant that he would not be permitted to withdraw his plea

to be harmless error.  See United States v. McCarthy, 97 F.3d                                                                

1562, 1574-76  (8th Cir. 1996),  cert. denied, ---  U.S. ---,                                                         

117  S. Ct.  1011  (1997); Diaz-Vargas,  35 F.3d  at 1224-25;                                                  

United  States v. Thibodeaux,  811  F.2d 847,  848 (5th  Cir.                                        

1987);  United States v. de  le Puente, 755  F.2d 313, 314-15                                                  

(3d Cir. 1985). 

          Noriega-Millan  disagrees  with  Martinez-Martinez.                                                                        

He argues that the proposition that the court is not bound by

the government's  recommendations is logically  distinct from

the proposition  that the  defendant is nonetheless  bound if

the court declines to  accept those recommendations, and that

notice  of  the  former   proposition  does  not  inform  the

defendant of the  latter proposition; nor does it relieve the

court  of its responsibility  to inform the  defendant of the

latter proposition.  See, e.g., United States v. Zickert, 955                                                                    

F.2d  665, 669  (11th Cir.  1992); Theron,  849 F.2d  at 481;                                                     

United States v. Iaquinta,  719 F.2d 83, 85 (4th  Cir. 1983).                                     

Noriega-Millan  contends,  in  other   words,  that  the  two

warnings relate  to different  issues and that  Rule 11(e)(2)

requires the district court to give both warnings.  

          This  argument  is  not  without  logic  or  force.

Indeed, a  number  of  courts have  held  that  the  district

                             -15-                                          15

court's failure to  warn the  defendant of  his inability  to

withdraw  his   guilty  plea   once  it  has   been  accepted

constitutes reversible  error, and that  the district court's

warning   that  it   was  not   bound  by   the  government's

recommendation is  insufficient to render the error harmless.

See  United States  v. DeBusk,  976 F.2d  300, 307  (6th Cir.                                         

1992); Zickert, 955 F.2d at 668-69; United States v. Ferrara,                                                                        

954 F.2d 103,  107-108 (2d  Cir. 1992); Graibe,  946 F.2d  at                                                          

1434-35; Theron, 849 F.2d at 481; Iaquinta, 719 F.2d at 85.                                                      

          We  ourselves read Martinez-Martinez as laying down                                                          

no inflexible  rule but  as considering the  district court's

warning  as to  the  non-binding nature  of the  government's

recommendations to  be an  element in the  circumstances that

bears on the determination of  whether the court's failure to

warn the defendant of  her inability to withdraw the  plea is

harmless error.   For the reasons we have stated, we find the

district  court's  error  to  be harmless  in  this  case and

therefore we reject  Noriega-Millan's argument that  his plea

should  be set aside for the district court's failure to warn

him that he would not be permitted to  withdraw his plea once

it had been accepted.  Martinez-Martinez, 69 F.3d at 1223-24.                                                    

                             III.                                         III.

          For   the  foregoing   reasons,  the   judgment  of

conviction and sentence are affirmed.                                        affirmed                                                

                             -16-                                          16

                             -17-                                          17
