           United States Court of Appeals
                       For the First Circuit


No. 17-1302

                           UNITED STATES,

                             Appellee,

                                 v.

                     JESUS R. GONZALEZ-NEGRON,

                       Defendant, Appellant.


            APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF PUERTO RICO

         [Hon. Carmen Consuelo Cerezo, U.S. District Judge]


                               Before

                       Lynch, Circuit Judge,
                    Souter, Associate Justice,
                     and Stahl, Circuit Judge.


     Lisa Aidlin on brief for appellant.
     Kelly A. Zuzman, Assistant United States Attorney, Rosa
Emilia Rodríguez-Vélez, United States Attorney, and Amy E.
Potter, Assistant United States Attorney, on brief for appellee.


                           June 13, 2018




     
       Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
            SOUTER,          Associate            Justice.            The    defendant      stands

convicted of possessing a controlled substance with intent to

distribute it, 18 U.S.C. § 841(a)(1), and possessing a firearm

in    furtherance           of        a    drug     trafficking             crime,   18     U.S.C.

§ 924(c)(1)(A).             His convictions rest on guilty pleas entered

under an agreement that called for dismissal of other charges,

including one of possessing a machine gun in furtherance of a

drug-trafficking            crime,         which     carries          a     mandatory      30-year

minimum     sentence,            18       U.S.C.    §     924(c)(1)(B)(ii).                He     was

sentenced to imprisonment for 132 months, that being within the

period the Government was permitted to recommend under the terms

of the plea agreement.

            While he was before the district court, he raised no

timely objection to the findings of guilt or to the sentence,

but   he   now   appeals,             arguing      that   his     conviction         on   the     gun

charge is invalid owing to the district court's acceptance of

his plea despite the court's failure to satisfy Rule 11 of the

Federal    Rules       of    Criminal         Procedure          in    two     closely     related

respects.        One    provision            of    the    Rule    required       the      court   to

determine that there be a factual basis that would justify a

finding at trial that the gun possession was in furtherance of

the drug crime, see Fed. R. Crim. P. 11(b)(3); under the other

provision, the court was obliged to ensure that the defendant


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understood       the    legal     nature         of       possession-in-furtherance       to

which he pleaded, Fed. R. Crim. P. 11(b)(1)(g).                                Because the

claims go to the validity of the plea, we do not find them

barred by a waiver of appeal rights that was contained in the

plea agreement.             But because the defendant failed to raise the

claims in the trial court, we apply the plain error standard of

review, under which he is not entitled to relief.

             A     demonstration           of         plain    error     "sufficient      to

undermine confidence in the outcome of the proceeding," United

States v. Dominguez Benitez, 542 U.S. 74, 83 (2004) (internal

quotation marks omitted), requires a defendant to show that the

trial court committed error, which was plain, and which affects

the defendant's substantial rights.                        See United States v. Olano,

507 U.S. 725, 732 (1993).              Even then, the error does not require

corrective        action      unless       the    reviewing       court       so   exercises

discretion upon finding that the error "seriously affects the

fairness,         integrity       or        public          reputation        of    judicial

proceedings."       Id.       The hurdle is a high one.

             We    look      first    at    the       adequacy    of    the    Government's

demonstration in support of the plea that there was a factual

basis for the gun charge.                    "The necessary showing . . . is

fairly modest": the Government need not "support every element

of the charged crime by direct evidence," or demonstrate that

the   defendant        is    guilty    beyond         a    reasonable    doubt.      United

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States v. Ramos-Mejía, 721 F.3d 12, 16 (1st Cir. 2013).                            Rather,

"the government need only show a rational basis in fact for the

defendant's guilt."           Id.     "In other words, there must be some

basis   for    thinking      that    the   defendant      is       at    least    arguably

guilty."      Id. (internal quotation marks omitted).

              To   violate    §     924(c)(1)(A),      the    defendant          must   have

possessed the gun "in furtherance" of his drug dealing, not

merely in connection with his commission of a drug offense, but

"to advance or promote" it.                United States v. Gonsalves, 859

F.3d 95, 111 (1st Cir. 2017); see H.R. Rep. No. 105-344 (1997),

1997 WL 668339, at *12.                "In assessing whether a sufficient

nexus exists, we consider several factors: whether the firearm

was   loaded,      whether    the     firearm    was    easily          accessible,     the

proximity     of    the    firearm    to   the   drugs,       and       the   surrounding

circumstances."           United States v. Pena, 586 F.3d 105, 113 (1st

Cir. 2009).        We conclude that any insufficiency of particularity

required to satisfy Rule 11(b)(3) on the offense charged here

was far from plain.

              In this case, the defendant's gun was found in the

bedroom closet of his apartment, and his stash of drugs was

hidden in the kitchen.               As the defendant argues, "[t]he mere

presence of a firearm . . . where the drug offense occurred is

insufficient"       to     demonstrate     possession        "in    furtherance,"        at

least as a general rule.              United States v. Bobadilla-Pagán, 747

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F.3d 26, 35 (1st Cir. 2014).       And the circumstances may require

close proximity of a stored gun and drugs in order to support an

inference    of   intent   to   advance   or   promote   unlawful   drug

activity.    See United States v. Rios, 449 F.3d 1009, 1011-14

(9th Cir. 2006).      Hence if the only facts ostensibly adduced

here to show "in furtherance" were the drugs and a conventional

gun far apart in the same apartment, existing case law furnishes

at least a serious argument that there would have been error in

accepting the guilty plea without a showing of more specific

facts indicating intent to further the underlying drug dealing.

            Although this is the very argument that the defendant

makes, it fails to account for a serious response to which it is

vulnerable on the facts of this case.            Given the undisputed

adequacy of the Government's proffer to demonstrate that the

defendant was a drug dealer, a further specific fact in the

record is obviously significant: the weapon in question was not

just any gun, but a pistol that had been converted from semi-

automatic (as manufactured) to fully automatic, that is, to a

machine gun.      The destructive capacity of the gun is relevant

circumstantial evidence of its purpose, see United States v.

Felton, 417 F.3d 97, 105 (1st Cir. 2005), and the legal status

of machine gun possession is particularly instructive on this

point.   Because possession of a machine gun is criminal per se

except for certain very limited exceptions not relevant here,

                                  - 5 -
see 18 U.S.C. § 924(o), the law unequivocally precludes any

option to keep the gun for a lawful purpose, and supports the

likelihood       that      the     actual     purpose      was       unlawful:         here,

furthering the defendant’s drug crime.                    So does the fact that

the machine gun was loaded and within the same residence as the

drugs.   See Pena, 586 F.3d at 113.

              In sum, the facts on record, including the particular

facts    of    the    loaded       machine      gun's    exceptional        destructive

capacity and the illegality of its possession, are at least

arguably sufficient to satisfy the requirement of demonstrating

on the record a factual basis for the "in furtherance" element

as required under Rule 11.                   If there is thought to be any

inadequacy on this point, it did not amount to error that could

be treated as plain.

              Much    of    what    we   have    said    has     a    bearing     on     the

defendant's second claim of Rule 11 error, that the court failed

to address him with enough care to determine that he understood

the   nature     of   the    "in    furtherance"        charge       to   which   he     was

pleading guilty.            It is true that in his colloquy with the

defendant before accepting the guilty pleas, the trial judge did

not expressly invoke the definition of the term as meaning to

intend to advance or promote the underlying crime.                          But, again,

this is not tantamount to any plain failure to show on the

record    that       the    defendant       understood     the       meaning      of     "in

                                         - 6 -
furtherance"        to     which     he    was      pleading.          The       concept       of

furtherance is not "esoteric," see Mack v. United States, 635

F.2d 20, 25 (1st Cir. 1980), and the defendant's acknowledgement

before the court that the allegations were true is itself good

evidence that he understood this element of the charge, see

United States v. Cotal-Crespo, 47 F.3d 1, 6 (1st Cir. 1995).

Moreover,     the        defendant    has      failed       "to   show       a     reasonable

probability that, but for the error, he would not have entered

the plea."        Dominguez Benitez, 542 U.S. at 76.                     In particular,

at   the   time     the       defendant    entered        his   plea,    he      was    facing

another charge that carried a 30-year mandatory minimum term

(possession       of      a    machine     gun      in     furtherance        of    a        drug-

trafficking crime).             The defendant's plea allowed him to avoid

conviction on that charge and to obtain a much lower sentence.

The defendant points to nothing in the record to indicate that a

more detailed explanation of the "in furtherance" element would

have led him not to plead guilty.                   Hence, the court's failure to

enquire further in expressly definitive detail was at most one

of   form,    but      not     one   that      left      the    record   blank          on    the

defendant's       understanding           of     the      statutory      sense         of      "in

furtherance."       There was no plain error.

             Although          the   preceding           conclusions     determine            the

results of the appeal, we add that our reasoning would also be

to the point in addressing the fourth element of plain error

                                            - 7 -
analysis, whether any error seriously compromised the fairness,

integrity or public reputation of the judicial process.             It is

enough to say at this point that no such compromise is evident

on the record of the pleas in this case.               That record is far

more likely to convince a reader that the defendant correctly

understood    the   meaning   of   the     statutory    elements   he   was

admitting and consequently should be held to his plea entered in

open court that he possessed his gun to further his criminal

enterprise.



Affirmed.




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