                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 91-2118

                        UNITED STATES,

                          Appellee,

                              v.

                         FRANK JAPA,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

        [Hon. Walter Jay Skinner, U.S. District Judge]
                                                     

                                         

                            Before

                     Breyer, Chief Judge,
                           
                Bownes, Senior Circuit Judge,
                      
                  and Boudin, Circuit Judge.
                            

                                         

Gordon R. Blakeney, Jr. for appellant.
                       
William F.  Sinnott, Assistant United  States Attorney, with  whom
                   
A.  John  Pappalardo,  United  States  Attorney,  was  on  brief,  for
                
appellee.

                                         

                         May 24, 1993
                                         

          BOWNES, Senior  Circuit  Judge.   In  this  appeal,
          BOWNES, Senior  Circuit  Judge.
                                        

defendant-appellant, Frank Japa, seeks  to vacate his plea of

guilty because  of alleged errors made by  the district court

during the change of plea hearing.  Japa also claims that the

district court erred during the sentencing hearing.

          After an  undercover operation,  Japa and  one Jos 

Puello  were  arrested for  drug  trafficking.   A  two-count

indictment was returned against them.  Count One charged both

with conspiring to possess  cocaine with intent to distribute

in violation  of 21 U.S.C.     841(a)(1) and 846.   Count Two

charged them  with possessing  500 grams  or more  of cocaine

with  intent to distribute within  1,000 feet of  a public or

private  school in violation of  21 U.S.C.     841 (a)(1) and

845(a) (now   860) and 18 U.S.C.   2.  Puello is not involved

in this appeal.

          After  initially  pleading  not  guilty,  defendant

changed  his  plea to  guilty.   There  was no  plea bargain.

Because  defendant was  Spanish-speaking, an  interpreter was

used  during both the change of plea and sentencing hearings.

Defendant was  sentenced to seventy months'  incarceration to

be  followed  by  a  supervised release  term  of  ninety-six

months.    Because defendant  was  impecunious,  no fine  was

imposed; he was ordered to pay a special assessment of $100.

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                              2

                The Change of Plea Proceedings
                                              

          Defendant attacks  the  plea proceedings  on  three

grounds:  (1) he  was not adequately informed of  the maximum

possible sentence; (2) his plea was not voluntary because  he

did not understand the charges against him; and (3) there was

not an adequate record  of a factual basis for  accepting his

plea.  We discuss these claims seriatim.

       Informing Defendant of Maximum Possible Sentence
                                                       

          Although there may have  been some confusion at the

outset of  the maximum-penalty discussion,  the transcript of

the  change   of  plea  hearing  shows   that  defendant  was

adequately informed of and  understood the maximum penalty he

faced.  A resum  of the plea hearing follows.

          Defendant was  asked by the court  what the maximum

sentence on Count  One was.  He replied, "I  think it is five

years."    The  court  said,  "I thought  it  was  15."   The

Assistant United States Attorney then stated:

             MR.  O'CONNOR:   Your  Honor, it's  20
          years.   But I would also  note that it's
          going to be a  sentencing issue, but  the
          quantity of cocaine that is relevant with
          respect  to both  Counts  1 and  2 is  at
          least 500 grams, so  at a minimum he will
          be in a range under the minimum mandatory
          provision of  five to 40 years.   This is
          statutory,  two million-dollar  fine, $50
          on each  count, and  a four-year term  of
          supervised  release,  at  least, on  each
          count.

Defendant was  then asked  by the court,  "Do you  understand

that?"   He replied,  "Yes, sir."   He was  then asked  if he

                             -3-
                              3

understood that "all of that can be added up,  the two counts

added together."  He  replied, "Yes."  It was  then explained

to  defendant that  the five-year  statutory minimum  was the

"floor."  The Assistant United States Attorney then described

the guideline range:

             The  guideline  range  is  63  to  78.
          However, I would note that in Count 2 the
          Court  will notice  he  is  charged  with
          distribution within a  thousand feet of a
          school  yard, which  allows the  Court to
          punish up to two  times.  The  guidelines
          say  it would be  a two  level adjustment
          upwards  if  the  government   proves  at
          sentencing  that it was within a thousand
          feet of  a school  yard, which  would put
          him within a  range of 78 to 97  but then
          he may get  acceptance of  responsibility
          which would put him back to 63 to 78.  So
          really  what  we're   talking  about   is
          somewhere  in the neighborhood of five to
          six years, five to six and a half years.

After the  explanation of the guideline  range was completed,

the  court asked defendant  if he understood  what the United

States Attorney  had been talking about.   Defendant replied,

"Yes, sir."  The following colloquy then took place:

             THE COURT:  Do you understand that I'm
          obliged to sentence within the guidelines
          unless    there     is    some    special
          circumstance?   And if  there are special
          circumstances,   I   can  go   above  the
          guidelines  or below,  I can  depart from
          the guidelines, up to the  maximum, which
          I think  is 40 years on each  count for a
          possible  80  years.    In  general,  the
          sentence will be within the guidelines as
          more  or  less  described by  the  U.  S.
          Attorney.

             THE DEFENDANT:  Yes.

                             -4-
                              4

          Following this, the court asked defendant if anyone

had  told him "what sentence the Court would, in fact, impose

in the  event of a  plea of  guilty?"  The  defendant replied

that his attorney had told him he would serve "about one year

and a half  or something like that."   The court  pointed out

that it had just been explained to defendant that the minimum

sentence was five  years.  The  court then asked  defendant's

attorney if  he  had an  explanation for  what defendant  had

stated.   Defendant's  attorney  stated:   "I  don't have  an

explanation because it didn't  occur."  The attorney  said he

discussed the guidelines  with defendant without  the benefit

of  an interpreter.   The  attorney then  suggested that  the

court  ask  defendant  "if he  understands  .  .  . that  the

guidelines  go anywhere  from four  to six  years generally."

The court then stated to defendant:

             Mr. Japa, there is no way that anybody
          could have told you what I am going to do
          because I  don't know what  I'm going  to
          do, and  I will  come up with  a sentence
          somewhere  within  the  ranges,   in  all
          likelihood,  that  we  have been  talking
          about, that is five  to six and  possibly
          seven years.  Do you understand that?

             THE DEFENDANT:  Yes, sir.

          Defendant was then asked if he wanted to change his

plea.    After  a  discussion  with  his  attorney,  with  an

interpreter present,  defendant stated  that he wished  to go

forward with  a plea  of guilty.   In  answer to the  court's

                             -5-
                              5

question,  "Is   your  plea  of  guilty   entirely  free  and

voluntary?", the defendant answered, "Yes."

          Based on the record of  the change of plea hearing,

we find  that defendant was properly informed  of the maximum

penalty  provided   by  law   and  that  he   understood  the

consequences of pleading guilty.

          Defendant  also  alleges that  he  was inadequately

informed  of  the  term  of supervised  release  he  could be

required  to serve.  Defendant was, in fact, sentenced to the

precise  term  of supervised  release  of which  he  had been

informed at the hearing.

                    Voluntariness of Plea
                                         

          The standard for setting aside a plea that has been

entered and sentence imposed is  narrow.  Defendant must show

a  fundamental defect or a  miscarriage of justice.   Fed. R.

Crim. P.   32(d) provides:

             (d) Plea Withdrawal.  If a motion  for
             (d) Plea Withdrawal.
          withdrawal of  a plea  of guilty  or nolo
          contendere  is  made  before sentence  is
          imposed, the court may  permit withdrawal
          of  the   plea  upon  a  showing  by  the
          defendant  of any  fair and  just reason.
          At  any later  time,  a plea  may be  set
                                                   
          aside only on direct appeal or by  motion
                                                   
          under  28  U.S.C.      2255.    (Emphasis
                                      
          added.)

It is the last sentence that is implicated here.  The Note of

the  Advisory  Committee on  the  Federal  Rules of  Criminal

Procedure discussing the 1983  amendment to Rule 32(d) states

in pertinent part:

                             -6-
                              6

          Under  the  amendment,  a  defendant  who
          proceeds too  late to come under the more
          generous "fair and just  reason" standard
          must seek  relief  under    2255, meaning
          the applicable standard is that stated in
          Hill  v.  United  States,  368  U.S.  424
                                  
          (1962):    "a  fundamental  defect  which
          inherently   results    in   a   complete
          miscarriage of justice"  or "an  omission
          inconsistent with the rudimentary demands
          of fair procedure."

          Moreover, Rule 11,  which governs plea  procedures,

expressly provides  in  part (h):    "Any variance  from  the

procedures  required  by  this  rule which  does  not  affect

substantial rights shall be disregarded."

          With this standard of  review in place, we consider

defendant's arguments.   Defendant  contends that his  guilty

plea  was  not  voluntary  because  the  record  of  the plea

colloquy does not show that he understood the charges against

him.   Specifically, defendant  asserts that the  record does

not establish that he understood the quantity of drugs he was

charged with  possessing, the  charge of conspiracy,  and the

element of intent.

          We start  our analysis  with the transcript  of the

change of plea proceedings:

             THE COURT:   This indictment  suggests
          that  you  ---  it  doesn't  suggest,  it
          charges  you with  combining, conspiring,
          confederating  and   agreeing  with  Jose
          Puello   and   with   other  persons   to
          knowingly  and  intentionally  possess  a
          mixture containing cocaine with an intent
          to distribute it on or about August 29th,
          1990.   Now, did  you agree to  possess a
          mixture containing cocaine on that day?

                             -7-
                              7

             THE DEFENDANT:   Yes, sir.

             THE COURT:  With Mr. Puelloand others?

             THE DEFENDANT:  Yes, sir.

             THE COURT:   All  right.  And  did you
          intend to distribute the cocaine?

             THE DEFENDANT:  Yes, sir.

             THE  COURT:    And  on  September 3rd,
          1990, did you and Mr. Puello, possess 500
          grams  or more  of  a mixture  containing
          cocaine  within  a  thousand  feet  of  a
          public school in the City of Lynn?

             THE DEFENDANT:  Yes, sir.

After the prosecutor had summarized the government's evidence

the following colloquy took place:

             THE   COURT:      Is    that   summary
          essentially true, Mr. Japa?

             THE DEFENDANT:  Basically.

             THE COURT:  In what respect is it not?

             THE DEFENDANT:  About the whole amount
          of the cocaine.

             THE COURT:  What does he say?

             THE DEFENDANT:  I  was saying it was a
          kilo and I sold more, that sort of thing.
          I didn't say any of that.

             THE COURT:  You did try to sell them a
          pound or a half kilo?

             THE  DEFENDANT:   That was  the truth,
          but no more than that.

             THE COURT:  All right.  Do you know of
          any  reason  why  the  Court  should  not
          accept your plea of guilty?

             THE DEFENDANT:  No.

                             -8-
                              8

          During the prosecutor's summary of  the evidence it

was made clear that, although originally defendant had agreed

to provide one  kilo of cocaine to  the government informant,

the amount  provided was one-half of  a kilo.  A  gram is one

thousandth of  a kilogram;  500 grams,  which was  the amount

defendant  was  charged with  possessing,  is  one-half of  a

kilogram, or slightly more than one pound.  We hold that  the

record establishes that  defendant understood  the amount  of

drugs he was charged with possessing.

          We also  find, based on the  record, that defendant

understood  he was  charged  with conspiring  with others  to

possess and  distribute 500 grams  of cocaine.   The district

court told  defendant he was charged in  the indictment "with

combining, conspiring, confederating, and agreeing  with Jose

Puello  and  with  other   persons,"  etc.    Defendant  gave

affirmative  answers ("Yes,  Sir")  to two  questions by  the

court asking  whether  he agreed  with Puello  and others  to

possess cocaine on August 29th.  Defendant did not advise the

court  either  himself or  through  counsel that  he  did not

understand  the conspiracy  charge.   We  do not  think that,

where  a  defendant  is   represented  by  counsel,1  and  no

specific claim is made that the defendant does not understand

                    

1.     Defendant has  indicated that there may  be a claim of
incompetency of counsel waiting  in the wings.  Such  a claim
is  not an issue  in this case  and except for  noting it, we
make no comment.

                             -9-
                              9

a question or explanation by the court as to  what is charged

in  an  indictment, the  court is  required  to do  more than

explain the  charges in  plain understandable language.   The

conspiracy  charge met  this test.   We  add that  a detailed

explanation  of "conspiracy"  with  its  many  nuances  would

probably result in confusion and bewilderment of a defendant.

       Understanding of Intent   Factual Basis for Plea
                                                       

          Defendant's claim that the record  is inadequate to

establish that he understood the intent element of the crimes

charged necessarily includes his contention that there was an

inadequate factual basis  for accepting a plea of  guilty, as

we explain below.

          We start  our analysis with the  indictment.  Count

One charges  as follows.  "From  on or about August  29, 1990

and continuing to  on or  about September 3,  1990" in  Lynn,

Massachusetts, the defendants Frank  Japa and Jos  Puello did

conspire "knowingly and intentionally to possess with  intent
                                                             

to  distribute" 500  grams  of  cocaine.    The  court  asked
              

defendant two separate questions:  did he possess the cocaine

and did he intend to distribute it.  Defendant answered "yes"

to both  questions.   This was  sufficient to  establish that

defendant understood the element of intent as to Count One.

          A problem  arises, however,  as to the  adequacy of

the  court's question covering Count Two.   Count Two charges

that "On or about September 3, 1990" the defendants, Japa and

                             -10-
                              10

Puello, "did knowingly and intentionally  possess with intent

to  distribute 500 grams" [a mixture containing cocaine]. . .

"and  did  so  within 1000  feet"  [of  a  public or  private

school].  The  court's question of  defendant on this  count,

however, omitted any inquiry as to intent.  Defendant was not

asked  whether  he intended  to  possess  and distribute  the
                                                        

cocaine within 1,000 feet of a school.  The court asked  only

whether  defendant and Puello  "did possess  500 grams"  of a

mixture  containing cocaine  within  1,000 feet  of a  public

school.  This omission  was compounded by the failure  of the

government  to  say anything  about a  school  at all  in its

statement of proof.

          At the outset of our discussion we frame the  issue

before us:   Was  the omission  of an  intent inquiry  by the

district court,  combined with the failure  of the prosecutor

to  include in his proof statement any reference to a school,

"a  fundamental   defect  [in  the   plea  proceeding]  which

inherently results  in a complete miscarriage  of justice" or

"an  omission inconsistent  with the  rudimentary  demands of

fair  procedure?"  Hill v.  United States, 368  U.S. 424, 428
                                         

(1962).   Or  to put  a  different cast  on it,  did the  two

omissions affect  substantial rights  of defendant?   Fed. R.

Crim. P. 11(h).  We think not, for the reasons that follow. 

          The presentence  report, in the  section on offense

conduct,  contains  this statement:    "Japa's apartment  was

                             -11-
                              11

within 1000  feet of a  schoolyard in Lynn."2   There  was no

objection  to this  or any other  statement in the  PSI.3  We

held  in United States v.  Zorrilla, 982 F.2d  28, 30-31 (1st
                                   

Cir. 1992), that information in the presentence report and/or

adduced  at  the probable  cause  hearing  was sufficient  to

satisfy the  elements of the  crime charged  even though  the

district court judge  failed to establish a factual basis for

the  plea at  the hearing.   The  defendant here  admitted to

possessing  cocaine within 1,000 feet of a public school.  He

also admitted in  answer to questions  by the court  covering

Count  One  that he  and  Puello  possessed  and intended  to

distribute 500 grams of  cocaine.  It is obvious  that Counts

One and  Two referred to the  same cocaine    a one-half kilo

block.    Our  focus  is  on  whether  defendant's  plea  was

voluntary,  not  whether  the  government proved  him  guilty

beyond  a  reasonable doubt.   We  said  in United  States v.
                                                          

Allard, 926 F.2d 1237, 1244 (1st Cir. 1991):
      

             The effect of a failure to comply with
          the requirements of Rule 11  depends upon
          the   nature  of   the  failure.     Mere
          technical  violations  of its  procedural
          requirements do not warrant setting aside
          a plea.   That is especially  true if the
          defendant was not  misled or the omission
          did not affect his decision.

                    

2.    The  cocaine had been taken  from defendant's apartment
and placed in a car where it was seized. 

3.     We discuss defendant's contentions relative to the PSI
infra.
     

                             -12-
                              12

          We have read the  transcript of the change  of plea

hearing carefully,  bearing in mind that  defendant needed an

interpreter  to translate  from English  to Spanish  and vice

versa.  Defendant never suggested that he did not  understand

any  part of what was being said to  him or about him.  There

was no complaint about the competency of the interpreter.  We

conclude that defendant's plea was knowing and voluntary.4

                          Sentencing
                                    

          Defendant  claims that the  district court erred by

failing either  to inquire  directly of defendant  whether he

had  an opportunity  to  review and  discuss the  presentence

report,  or to  have the  record reflect  that defendant  and

counsel had an adequate opportunity for such review.  Neither

claim is supported by the record.

                    

4.    Because  of the context of this case, we see no need to
decide  whether the schoolyard  statute, 21 U.S.C.    860, is
ambiguous  and   whether  intent  to  distribute  within  the
schoolyard  zone  has to  be  proven  by the  government,  or
whether it is irrelevant  or can be imputed to  the defendant
so  long as he possesses an amount of illegal substances from
which intent  to distribute may  reasonably be inferred.   To
date, Courts of Appeal in the District of Columbia, Third and
Fifth Circuits have held that the  government is not required
to prove intent to distribute within the protected zone.  See
                                                             
United  States v. McDonald, No. 92-3047, slip. op. at 5 (D.C.
                          
Cir. April 30,  1993); United States  v. Rodriguez, 961  F.2d
                                                  
1089, 1092 (3rd Cir.  1992); United States v. Wake,  948 F.2d
                                                  
1422,  1430 (5th Cir. 1991).  District courts in the Northern
District of Illinois  and the Southern  District of New  York
have required  the government  to prove intent  to distribute
within the protected zone.   See United States v.  Testa, 768
                                                        
F.  Supp. 221, 223 (N.D. Ill. 1991); United States v. Coates,
                                                            
739  F. Supp.  146,  153 (S.D.N.Y.  1990);  United States  v.
                                                         
Roberts, 735 F. Supp. 537, 543 (S.D.N.Y. 1990); United States
                                                             
v. Liranzo, 729 F. Supp. 1012, 1014 (S.D.N.Y. 1990).
          

                             -13-
                              13

          At   the   outset  of   the   disposition  hearing,

defendant's   attorney  was  asked,   "was  the  pre-sentence

investigation report reviewed  by you and your  client?"  The

answer  was  "Yes."    The  attorney  stated,  in  answer  to

questions by the district court, that he had no objections to

any  of the factual statements  in the report  and that there

were  no legal  issues in  dispute.   Then followed  a rather

lengthy argument by  defendant's attorney that defendant  was

entitled  to a  minor-role  point deduction.   The  Assistant

United States Attorney  pointed out that  the issue was  moot

because  under  the statute  the  minimum  sentence was  five

years.  The court correctly  held that "the minimum mandatory

trumps  the guidelines."    After further  discussion by  the

Assistant United  States Attorney  and defense counsel  as to

defendant's  role  in   the  offense,  the  court   sentenced

defendant   to  imprisonment  "for   70  months,   96  months

supervised release,  no fine,  no restitution, and  a hundred

dollars  special assessment."   The  sentence was  within the

guideline range of 63 to 78.

          The  statements of  defense counsel  show that  the

district court  did inquire as  to whether defendant  and his

counsel had an adequate opportunity to review the presentence

report.  Defense counsel's answer  to the court's question on

this  score  and his  argument on  his  client's role  in the

offense  showed that  defendant's attorney was  familiar with

                             -14-
                              14

the presentence report and  the factual and legal conclusions

contained therein.   Moreover, defendant has  not pointed out

to us any inaccuracies in the presentence report.  This means

that  even if  there were an  error in  the manner  the court

conducted the disposition hearing, and we have found none, it

would be harmless.

     Affirmed.   
     Affirmed.
              

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                              15
