
USCA1 Opinion

	




          March 1, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2112                                    ANTHONY SIMON,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                          Bownes, Senior Circuit Judge, and                                  ____________________                                Stahl, Circuit Judge.                                       _____________                                 ____________________            Anthony Simon on brief pro se.            _____________            Donald K.  Stern, United States  Attorney, and  Joseph M.  Walker,            ________________                                __________________        III, Assistant United States Attorney, on brief for appellee.        ___                                 ____________________                                 ____________________                 Per Curiam.  Petitioner Anthony Simon appeals the denial                 __________            by the  United  States District  Court  for the  District  of            Massachusetts of his  motion to vacate, set  aside or correct            his sentence, pursuant  to 28 U.S.C.    2255.   We have  read            carefully  the  record in  this case  and  the briefs  of the            parties.   We  affirm  the  decision of  the  district  court            essentially for the reasons given in its memorandum and order            dated August 25, 1993.  We add only the following.                 Simon  claims that  the  record of  his  change of  plea            hearing indicates  that the  district court violated  Fed. R.            Crim. P. 11(c)(1)  because it failed to establish  that Simon            entered his guilty plea with  an understanding of the "nature            of  the charge[s] to which the plea  [was] entered."  Id.  He                                                                  __            also  claims  that the  court  failed  to make  a  sufficient            inquiry to  "satisfy it[self] that  there is a  factual basis            for the plea."  Fed. R. Civ. P. 11(f).                   A failure to ascertain  that Simon understood the charge            to which  he was  pleading guilty  would  constitute a  "core            violation" of Rule 11 and mandate that the plea be set aside.            United States  v. Cotal-Crespo,  No. 94-1354, slip  op. at  7            _____________     ____________            (1st Cir. Jan. 30,  1995).  "[W]e review the  totality of the            circumstances  surrounding  the  Rule  11  hearing"  and,  in            particular, "the  substance of  what was communicated  by the            trial court, and what  should reasonably have been understood            by the defendant, rather than the form of the communication."            Id.            __                 Simon pled  guilty to  one count  of possession  of more            than one hundred grams of heroin in violation of 21  U.S.C.              841(a)(1) and one count of  engaging in a continuing criminal            enterprise in violation  of 21  U.S.C.   848.   Although  the            court asked  Simon whether  he understood  the nature of  the            charges to which he was pleading guilty,  and Simon responded            in  the affirmative,  the court  neither read the  charges to            Simon nor explained  to him the  specific elements of  either            count.    However, the prosecutor's statement of the evidence            which  would have  been  offered at  trial clearly  described            facts which set  forth all  the elements of  each offense  to            which  Simon  pled guilty  and  the  conduct by  Simon  which            constituted  each  offense.     Simon   admitted  to   having            "participated  in the offenses charged  [in the two counts to            which he pled guilty]  in the ways indicated in  that summary            of  the evidence."    Since no   "exceptional  circumstances"            exist which  indicate otherwise, see, e.g.,  United States v.                                             ___  ___    _____________            Ruiz-Del  Valle, 8 F.3d  98, 103-04 (1st  Cir. 1993) (finding            _______________            change of  plea hearing defective because  charge was neither            read  nor explained  and defendant  during plea  hearing made                                 ___            statement which should have  put court on notice she  did not            understand charge),  the prosector's statement  is sufficient            evidence  that  Simon  understood  the charges  to  which  he                                         -3-            entered a plea.  Cotal-Crespo, slip op. at 10.   It is also a                             ____________            sufficient for finding that there was a factual basis for the            plea.  See United States v.  Fountain, 777 F.2d 351, 355 (7th                   ___ _____________     ________            Cir. 1985), cert. denied, 475 U.S. 1029 (1986).                        ____  ______                 Affirmed.                 ________                                         -4-
