
USCA1 Opinion

	




                              _________________________          No. 96-1534                              UNITED STATES OF AMERICA,                                      Appellee,                                         v.                                CECILIO F. MCDONALD,                                Defendant, Appellant.                              _________________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                              _________________________                                       Before                                Selya, Circuit Judge,                            Hill,* Senior Circuit Judge,                             and Boudin, Circuit Judge.                              _________________________               Robert D. Dimler                              , by appointment of the court, for appellant.               Margaret                         E.                            Curran, Assistant United States Attorney, with          whom Sheldon                        Whitehouse, United States Attorney, and    Zechariah          Chafee, Assistant United States Attorney, were on brief, for          appellee.                              _________________________                                   August 20, 1997                              _________________________          _______________          *Of the Eleventh Circuit, sitting by designation.                    SELYA, Circuit                                    Judge. In this proceeding, defendant-          appellant Cecilio F. McDonald asks in the alternative (1) that we          vacate his guilty plea because the district court failed to advise          him of the applicable mandatory minimum sentence during the plea          colloquy, or (2) that we set aside his sentence due to an alleged          error in the calculation of his adjusted offense level. Taking          second things first, we find no computational error. And while          McDonald's first point is well-taken _ we agree that the district          court erred in failing to apprise the appellant of the mandatory          minimum sentence,                            see Fed. R. Crim. P. 11(c)(1) _ we find that this          error was benign. Consequently, we affirm the appellant's          conviction and sentence.                                         I.                                     Background                    On September 18, 1995, the authorities searched the          appellant's one-bedroom apartment in Providence, Rhode Island,          pursuant to a warrant. They found a cornucopia of drugs, money,          and drug-related paraphernalia hidden in the parlor: 160.32 grams          of crack cocaine, 2,656.47 grams of marijuana, $16,050 in cash,          three digital scales, and two dust masks. They also found a 9mm          semi-automatic pistol and a plastic bag containing several live          rounds in a secret compartment in the bathroom vanity.                    A federal grand jury subsequently returned an indictment          charging the appellant with possessing fifty grams or more of          cocaine base (crack), intending to distribute it, in violation of          21 U.S.C. S 841(a)(1) and (b)(1)(A) (1994). In due course, the                                          3          appellant pleaded guilty to the charge. During the plea colloquy,          the district court questioned him extensively in order to ascertain          that his guilty plea was voluntary, knowing, and intelligent. Yet          the court neglected to mention that, due to the amount of crack          involved, the offense carried a mandatory minimum ten-year          sentence.                    Following standard practice, the district court          commissioned the preparation of a Presentence Investigation Report          (PSI Report). In it, the probation department reported that the          amount of crack involved called for a base offense level (BOL) of          36; recommended a series of adjustments to the BOL; hypothesized          that the appellant belonged in criminal history category III; and          forecast a guideline sentencing range of 210-262 months. In two          places, the PSI Report unambiguously declared that a mandatory          minimum sentence of ten years applied. The appellant (who told the          court at sentencing that he had been afforded an ample opportunity          to read and digest the PSI Report) filed a covey of objections, but          he neither took issue with the applicability of the mandatory          minimum sentence nor complained that its existence had previously          been withheld from him.                    At the disposition hearing, the district judge determined          that the BOL was 34, not 36. He made two adjustments, subtracting          three levels for acceptance of responsibility,   see USSG S3E1.1          (1995), and adding two levels for possession of a firearm,                                                                    see USSG          S2D1.1(b)(1) (1995). The court then concluded that the appellant          belonged in criminal history category I. These determinations                                          4          yielded a sentencing range of 135-168 months.  See USSG Ch.5, Pt.          A (Sentencing Table) (adjusted offense level 33, criminal history          category I). The judge thereupon imposed a 135-month incarcerative          sentence. This appeal ensued.                                         II.                                     Discussion                    We begin with the weapons enhancement, cognizant that the          propriety vel non of that ruling may affect the harmless error          analysis which the appellant's principal assignment of error          entails.                                         A.                               The Weapons Enhancement                    We review factual determinations made in the course of          sentencing for clear error, mindful that such determinations need          only be supported by preponderant evidence.  See United States v.          Lagasse, 87 F.3d 18, 21 (1st Cir. 1996). Moreover, the district          court's application of a relevant guideline to the facts of a given          case is a fact-sensitive matter that engenders clear-error review.          See United                      States v. Gonzalez-Vazquez, 34 F.3d 19, 24 (1st Cir.          1994). Under these standards, we must uphold the weapons          enhancement in this case.                    There is no cause to tarry. A firearm is a "dangerous                                             This is to be distinguished from questions anent the          interpretation or overall applicability of particular guidelines to          particular situations. Such questions are questions of law and are          therefore subject to de novo review.  See United States v. Muniz,          49 F.3d 36, 41 (1st Cir. 1995).                                          5          weapon," and the relevant guideline instructs the sentencing court          to increase the BOL by two levels if the defendant possessed "a          dangerous weapon." USSG S2D1.1(b)(1). The Sentencing Commission's          commentary and application notes weigh heavily in construing the          guidelines, see  Stinson v.  United                                                States, 508 U.S. 36, 42-46          (1993);                  United States                               v.                                   Fiore, 983 F.2d 1, 2 (1st Cir. 1992), and,          in regard to this guideline, the Commission tells us that "the          adjustment should be applied if the weapon was present, unless it          is clearly improbable that the weapon was connected with the          offense." USSG S2D1.1(b)(1), comment. (n.3). We have consistently          honored this advisory,                                 see,                                      e.g.,                                            Gonzalez-Vazquez, 34 F.3d at 24;          United States v. Jackson, 3 F.3d 506, 509 (1st Cir. 1993); United          States v.  Ruiz, 905 F.2d 499, 507 (1st Cir. 1990), and the          appellant has offered us no persuasive reason to repudiate it          today.                    Of course, a certain nexus between the weapon and the          offense must be shown in order for the enhancement to lie.    See          Lagasse, 87 F.3d at 22. But to establish the link the prosecution          need only prove that the defendant possessed the weapon during the          currency of the offense, not necessarily that he actually used it          in perpetrating the crime or that he intended to do so.  See  id.          Furthermore, a defendant need not have had the weapon on his person          for the enhancement to apply; any possession _ actual or          constructive _ can trigger the two-level increase.    See  United          States v. Hill, 79 F.3d 1477, 1485 (6th Cir. 1996). Thus, "when          the weapon's location makes it readily available to protect either                                          6          the participants themselves during the commission of the illegal          activity or the drugs and cash involved in the drug business, there          will be sufficient evidence to connect the weapons to the offense          conduct."  United                             States v.  Corcimiglia, 967 F.2d 724, 727 (1st          Cir. 1992);                      accord                             Lagasse, 87 F.3d at 22;                                                    United States                                                                 v.                                                                     Ovalle-          Marquez, 36 F.3d 212, 225 (1st Cir. 1994).                    Here, the government satisfied its entry-level burden.          It showed that the appellant constructively possessed a weapon _          after all, the gun was found in the bathroom vanity of the home          that he alone occupied _ and a reasonable factfinder could infer          from the apartment's contents that the premises served as the          command post for the appellant's drug-trafficking activities. In          short, the weapon, though hidden, was readily available to protect          the appellant, the cash, and the drugs that he kept on the          premises.                    Where, as here, the government has shown that a firearm          possessed by the defendant was present during the commission of the          offense, the burden shifts to the defendant to persuade the          factfinder that a connection between the weapon and the crime is          clearly improbable.  See Jackson, 3 F.3d at 509. On this record,          we cannot fault the lower court for holding that the appellant          failed to carry this burden. To be sure, the appellant denied all          knowledge of the gun. But he neither adduced any evidentiary          support for this denial nor suggested an innocent explanation for          the gun's presence. Credibility calls are for the trier,     see,          e.g.,                United States                             v.                                 St. Cyr                                       , 977 F.2d 698, 706 (1st Cir. 1992),                                          7          and Judge Pettine was not obliged to credit the appellant's          unsupported disclaimer of guilty knowledge.                    To summarize, we discern no clear error in the court's          imposition of a two-level enhancement pursuant to USSG          S2D1.1(b)(1).                                         B.                                The Rule 11 Colloquy                    We turn now to the appellant's principal claim _ a claim          that makes its debut on appeal. In many instances, we will decline          to entertain issues that were not seasonably advanced in the nisi          prius court. However, a different rule sometimes obtains when a          defendant seeks for the first time to set aside his guilty plea in          the court of appeals.  See, e.g., United                                                    States v.  Parra-Ibanez,          936 F.2d 588, 593 (1st Cir. 1991); see generally Fed. R. Crim. P.          32(e). Here, the defendant's allegation implicates a core concern          of Rule 11 and the record on appeal is adequately developed to          permit direct review.  See United States v. Martinez-Martinez, 69          F.3d 1215, 1219 (1st Cir. 1995),  cert. denied, 116 S. Ct. 1343          (1996). Hence, we consider the appellant's argument.                                             When a defendant moves in the district court to withdraw a          guilty plea, we usually test that motion by means of a set multi-          part analysis. See                              United States                                           v.                                               Gonzalez-Vazquez, 34 F.3d 19,          22-23 (1st Cir. 1994); United                                         States v. Parrilla-Tirado, 22 F.3d          368, 371 (1st Cir. 1994). We have on occasion used this same          analytic tool as a guide in cases in which a defendant alleges for          the first time on appeal that the district court violated Criminal          Rule 11.  See, e.g., United                                       States v. Lopez-Pineda, 55 F.3d 693,          696 (1st Cir. 1995). The multi-part test is not obligatory. Here,          where both the trial court's error and the harmlessness of that          error are manifest, we need not perform the multi-part test.                                          8                    By entering a guilty plea, a defendant effectively waives          a myriad of important constitutional rights. Thus, due process          demands that such a plea be made voluntarily, knowingly,          intelligently, and with an awareness of the overall circumstances          and probable consequences.  See Boykin v. Alabama, 395 U.S. 238,          243 n.5 (1969). To this end, Rule 11 has a predominantly          prophylactic purpose. The main thrust of the rule is to ensure          that a defendant who pleads guilty does so with full comprehension          of the specific attributes of the charge and the possible          consequences of the plea.  See United                                                 States v. Lopez-Pineda, 55          F.3d 693, 695 (1st Cir. 1995).                    In neglecting to apprise the appellant of the mandatory          minimum sentence applicable to the offense of conviction, the          district court tarnished an otherwise irreproachable plea colloquy          and violated Rule 11.   See Fed. R. Crim. P. 11(c)(1) (stating,          among other things, that "before accepting a plea of guilty . . .          the court must address the defendant personally in open court and          inform the defendant of, and determine that the defendant          understands, . . . the mandatory minimum penalty provided by law").          It follows that the appellant's claim of error is well founded.                    This determination does not end our inquiry. Not every          violation of Rule 11 invalidates a guilty plea, and the Criminal          Rules specifically instruct courts to disregard any defect in a          Rule 11 proceeding that does not affect the defendant's substantial          rights. See Fed. R. Crim. P. 11(h). In other words, even an error          implicating Rule 11's core concerns will not require vacating a                                          9          guilty plea if the error, in context, is harmless.                    In the case at hand, the error did not impair the          appellant's substantial rights. The court imposed a sentence of          135 months _ fifteen months longer than the mandatory minimum _ and          calculated that sentence without any reference to the mandatory          minimum. It is, therefore, readily apparent that because the          guideline sentencing range (at its nadir) outstripped the mandatory          minimum, the latter had no relevance to, and no actual effect upon,          the appellant's sentence. Consequently, the district court's          failure to apprise the appellant of the mandatory minimum was an          error that did no discernible harm.  See Lopez-Pineda, 55 F.3d at          696; United States v. Johnson, 1 F.3d 296, 303 (5th Cir. 1993).                    The appellant's fallback position is that, as a result of          the court's failure to inform him of the mandatory minimum          sentence, he was deprived of the benefit of his bargain. This          argument rests on the notion that, without the mandatory minimum,          the appellant had a chance to obtain a sentence less than 120          months; and, while this prospect induced him to change his plea,          the undisclosed mandatory minimum rendered the prospect illusory.                    The short answer is that this notion does not comport          with the facts: any chance that the appellant had to obtain a          sentence of less than 120 months depended, at least in part, on          avoiding the two-level upward adjustment for possession of a          firearm. Since that enhancement was properly awarded, without any                                             Indeed, the existence of the mandatory minimum presented the          appellant with an opportunity, through the operation of the so-                                         10          reference to the mandatory minimum, the court's omission could not          have affected the appellant's substantial rights.                    We need go no further.                                          The purpose of insisting that the          judge inform a defendant of the existence and potential          applicability of a mandatory minimum sentence is to ensure that the          defendant is not induced to change his plea because of a totally          unrealistic expectation as to how mild a sentence he might receive.          That purpose was not in any way frustrated by the omission that          occurred here. Since the district court's bevue did not harm or          prejudice the appellant in any cognizable way, the appeal founders.          Affirmed.                                        called "safety valve" provision, see 18 U.S.C. S 3553(f) (1994);          USSG S5C1.2, to obtain an appreciably lower sentence. In the final          analysis, however, the weapons enhancement blocked this avenue too.          See USSG S5C1.2(2).               We note in passing that the evidence strongly suggests that          the appellant, notwithstanding the district court's omission, knew          of the mandatory minimum sentence all along. For instance, he          confirmed at the disposition hearing that he enjoyed ample          opportunity to read the PSI Report and discuss it with his counsel          _ and that report states in two places that the offense carries a          ten-year mandatory minimum sentence. Furthermore, the possible          application of the "safety valve" provision was discussed in open          court at the change-of-plea hearing _ and that provision only comes          into play where a mandatory minimum sentence is in effect.                                         11
