               Not for Publication in West's Federal Reporter

          United States Court of Appeals
                      For the First Circuit


No. 15-2535

                    UNITED STATES OF AMERICA,

                               Appellee,

                                    v.

 ANGEL MELÉNDEZ-ORSINI, a/k/a Gelo, a/k/a Cerebro, a/k/a Primo,

                       Defendant, Appellant.


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

        [Hon. Juan M. Pérez-Giménez, U.S. District Judge]


                                 Before

                    Lynch, Stahl and Thompson,
                          Circuit Judges.


     John T. Ouderkirk, Jr., on brief for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonete, Assistant United States Attorney Chief,
Appellate Division, and Julia M. Meconiates, Assistant United
States Attorney, on brief for appellee.


                         September 27, 2017
           STAHL, Circuit Judge.       Appellant Angel Meléndez-Orsini

("Meléndez-Orsini") seeks to vacate his conviction on a guilty

plea for conspiracy to possess with the intent to distribute a

controlled substance within a protected location and possession of

a firearm during and in relation to a drug trafficking offense.

The United States District Court for the District of Puerto Rico,

Juan M. Pérez-Giménez, District Judge, accepted Meléndez-Orsini's

plea and sentenced him to a prison term of 180 months.           In this

appeal, Meléndez-Orsini challenges the voluntariness of his change

of plea.   We AFFIRM.

              I. Factual Background and Prior Proceedings

     We recite here the relevant facts.            Meléndez-Orsini was

indicted on three counts:       (1) conspiracy to possess with the

intent to distribute at least 5 but less than 15 kilograms of

cocaine within a protected location, in violation of 21 U.S.C.

§§ 860 and 841(b)(1)(A); (2) possession of a firearm during and in

relation to a drug trafficking offense, in violation of 18 U.S.C.

§ 924(c)(1)(A); and (3) criminal forfeitures, in violation of 21

U.S.C. § 853.    There were 94 co-conspirators involved in the drug

trafficking     organization   whose     members   distributed   heroin,

cocaine, crack and marijuana within one thousand feet of a public

housing project.    Often, members of the conspiracy would carry and

brandish firearms in connection with their activities.




                                 - 2 -
      On December 11, 2014, pursuant to a plea agreement, Meléndez-

Orsini pled guilty to Counts One and Two of the indictment.                  The

plea agreement contained a waiver of the right to appeal if the

district     court   sentenced   Defendant      to     the     parties'     joint

recommendation of 120 months on Count One, and 60 months on Count

Two, to be served consecutively to Count One.                 At the change of

plea hearing, the district court inquired into Meléndez-Orsini's

competence, the voluntariness of his plea and the sufficiency of

defense counsel.      The court also reviewed the relevant charges in

the   indictment,    the   statutorily   mandated      minimum     and    maximum

sentences,     the   government's    evidence        and     the   signed    plea

agreement.

      At Meléndez-Orsini's sentencing on November 20, 2015, for the

first time he asked the court to review the evidence as to Count

Two because he had not wanted to plead guilty to that count.                 The

district court denied Defendant's request to review the facts as

to Count Two and sentenced Defendant to a total of 180 months

incarceration.1      This timely appeal followed.

                              II. Discussion

             Meléndez-Orsini claims the district court violated Rule

11 by accepting his change of plea because it was not voluntary,



1 The court sentenced Defendant to a term of 120 months on Count
One, and 60 months on Count Two, to be served consecutively to
Count One.


                                    - 3 -
intelligent and knowing. Rule 11 provides that "[b]efore accepting

a plea of guilty . . . the court must address the defendant

personally in open court and determine that the plea is voluntary

and did not result from force, threats, or promises . . . .”

Fed.R.Crim.P. 11(b)(2).     On appeal, we consider the totality of

circumstances to determine if a violation of Rule 11 occurred.

See United States v. Martinez-Martinez, 69 F.3d 1215, 1220 (1st

Cir. 1995).

                      A. Waiver

          Before   addressing     the     merits   of   Meléndez-Orsini's

argument, we acknowledge that the plea agreement contains a waiver

of appeal provision, which generally "forecloses appellate review

of many claims of error."   United States v. Chambers, 710 F.3d 23,

27 (1st Cir. 2013).     "But where, as here, a defendant enters a

guilty plea and agrees to waive his right to appeal . . . a

reviewing court must 'address the merits of [his] appeal because

his claim of involuntariness, if successful, would invalidate both

the plea itself and the waiver of his right to appeal.'"             Id.

(alteration   in   original)(quoting      United   States   v.   Santiago

Miranda, 654 F.3d 130, 136 (1st Cir. 2011)).




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                     B. Rule 11 Plea Proceedings

             We review Meléndez-Orsini's underlying Rule 11 claim for

plain error because Defendant failed to object previously.2               "In

order to establish plain error, a defendant must show that: (1) an

error occurred; (2) the error was plain; (3) the error affected

the defendant's substantial rights; and (4) the error seriously

affect[ed]     the    fairness,    integrity   or   public   reputation   of

judicial proceedings."        United States v. Ortiz-Garcia, 665 F.3d

279,   285    (1st     Cir.   2011)(alteration      in   original)(citation

omitted).     Defendant maintains that the district court erred in

accepting his change of plea because there was evidence showing

that his change of plea was neither knowing nor voluntary.                We

find no such error.

             First, the record reflects that during the colloquy the

court asked Meléndez-Orsini on two separate occasions if anyone

forced, threatened or harassed him to accept the plea offer, to

which he responded "No."          The district court also reviewed aloud

paragraph 19 of the written plea agreement, which provided that no



2 At sentencing, Meléndez-Orsini asked the district court to "see
the evidence as to [Count 2] and make a decision", but at no point
did Defendant seek to withdraw his plea prior to sentencing. See
United States v. Delgado-Hernandez, 420 F.3d 16, 19 (1st Cir. 2005)
("[B]ecause [defendant] failed to call the district court's
attention to the alleged errors in the plea proceedings . . . for
example, by seeking to withdraw his plea prior to sentencing
. . . his claim is subject only to plain error review on direct
appeal.").


                                     - 5 -
threats were made to force Meléndez-Orsini to plead guilty and

that he is pleading guilty freely and voluntarily because, in fact,

he is guilty.

           While the above facts support that the plea was not

coerced, we acknowledge that at the beginning of the colloquy,

Meléndez-Orsini did express some apprehension about the timing of

the plea, conveying that if he had more time, he would think more

about his decision to plead guilty.3    However, Meléndez-Orsini's

minor apprehension does not render his guilty plea involuntary.

See United States v. Negron-Narvaez, 403 F.3d 33, 39 (1st Cir.

2005) ("The mere fact that the appellant at one point took a

contradictory position as to his culpability . . . neither alters

our conclusion nor dispels the factual basis for the plea.").

           Second, the district court adequately reviewed the facts

as to Counts One and Two.   As to Count Two, the court described a

conspiracy, where members knowingly, intentionally and unlawfully

possessed and used firearms.     The district court inquired, "is

that what you did as to Count II?"       Meléndez-Orsini responded

"Yes."   Defendant expressed no confusion as to these facts.



3 The district court asked Defendant if he had enough time to
consult with counsel and his wife before pleading guilty.
Meléndez-Orsini explained that he did, but if there was more time,
"one would even think more about it." The court explained that
even with more time, the options would still be the same, either
go to trial or plead guilty. The Defendant agreed with the court's
statement.


                               - 6 -
        Meléndez-Orsini maintains that the court should have realized

his change of plea was not voluntary based on his confusion over

the government's weapons evidence.              During the plea colloquy, the

government       explained     that     full    discovery     was   provided    to

Defendant, including photographs and recordings, which would have

been used at trial to prove that Meléndez-Orsini acted as a leader

in   the    drug     trafficking     organization   and     routinely   possessed

firearms in furtherance of the conspiracy.                   When asked by the

court      if   he   agreed   with    the   evidence   in    possession   of   the

government as to Counts One and Two, Meléndez-Orsini explained

that his attorney had viewed the evidence, but that he had not

seen the videos.4       The court then again asked the Defendant whether

he participated in the conspiracy as to Counts One and Two, noting,

"the fact that you had not seen any videos . . . doesn't preclude

you from pleading guilty."             Meléndez-Orsini responded, "Yes I'm

going to plead guilty."               At no point did Defendant deny his

involvement as to Counts One or Two.

        Although Meléndez-Orsini did not view personally all of the

discovery provided by the government, he signed the plea agreement,

repeatedly agreed to the statement of facts as summarized by the

district court at the plea colloquy and acknowledged on multiple



4 Meléndez-Orsini told the court that he was unable to view the
videos, although his counsel had informed him that he did not
appear in the videos.


                                        - 7 -
occasions that his decision to plead guilty to Counts One and Two

was voluntary.   Viewed in totality, Defendant's statements at the

colloquy5 negate a claim that his change of plea was neither

unknowing nor involuntary.

          Upon a thorough review of the record and consideration

of the totality of the circumstances, we uphold the district

court's finding that Meléndez-Orsini understood the nature of the

change of plea and voluntarily pleaded guilty.     Meléndez-Orsini

failed to meet his burden as to the first prong of plain error

review; therefore, we need not address the other factors.      The

judgment of the district court is AFFIRMED.




5 At the sentencing hearing, Defendant explained, "I didn't really
want to plead guilty [as to Count Two] because I had nothing to do
with weapons or giving protection to the drugs or anything like
that." This statement, albeit clear, occurred almost a year after
Meléndez-Orsini's change of plea.     This change of position is
insufficient to warrant a finding of error based on the
voluntariness of the plea.


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