
USCA1 Opinion

	




                            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  & 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  &  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 & 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
