

                      [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]

                  UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT

                                             

No. 97-1176

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                     MANUEL CABRERA-ROSARIO,

                      Defendant, Appellant.

                                             

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. Salvador E. Casellas, U.S. District Judge]                                                                  

                                             

                              Before

                      Selya, Circuit Judge,                                                    

                 Campbell, Senior Circuit Judge,                                                         

                    and Lynch, Circuit Judge.                                                      

                                             

     Juan P. Rivera Rom n on brief for appellant.                                   
     Guillermo  Gil,  United  States Attorney,  Jos   A.  Quiles-                                                                           
Espinosa, Senior Litigation Counsel, and Aixa Maldonado-Qui ones,                                                                          
Assistant United States Attorney, on brief for appellee.

                                              

                         October 17, 1997
                                              

          SELYA,  Circuit  Judge.     Defendant-appellant  Manuel                    SELYA,  Circuit  Judge.                                          

Cabrera-Rosario (Cabrera) invites  us to vacate his  sentence and

set aside his guilty plea.  For the reasons elucidated  below, we

decline the invitation.

I.  BACKGROUND          I.  BACKGROUND

          A grand jury  sitting in  the District  of Puerto  Rico

returned a two-count  indictment against the appellant.   Count 1

charged  that Cabrera,  a  convicted  felon,  knowingly  received

and/or possessed  a number of firearms that  had been transported

in  commerce in  violation  of  18 U.S.C.      922(g) and  924(e)

(1994).  Count 2 charged him with obliterating the manufacturer's

serial numbers on two of these weapons   both Cobray machine guns

  in violation of 18 U.S.C.   922(k) &amp; (o) (1994).

          The  appellant originally pleaded  not guilty.   On May

28,  1996, he  changed course  and  signed a  so-called Plea  and

Cooperation  Agreement (the Agreement)  that set forth  the terms

and conditions  appertaining to a  nonbinding plea bargain.   See                                                                           

Fed. R. Crim. P. 11(e)(1)(B).

          The Agreement    each page  of which was  initialled by

the appellant  and his attorney    provided, inter alia,  that if

Cabrera cooperated  fully and  truthfully,  the government  would

stipulate  to a particular set of guideline calculations designed

to yield  a guideline sentencing range (GSR) of 188 to 235 months

(adjusted offense level  31; criminal history  category VI).   It

clearly indicated  Cabrera's awareness that,  notwithstanding the

stipulation,  "the  defendant's  sentence  is  within  the  sound

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discretion of the sentencing judge," Agreement,   6; and that, if

the court were to impose a sentence in excess of 235 months, "the

defendant  [could] not,  for that  reason  alone, withdraw  [his]

guilty  plea,"  id.    The   Agreement  also  implied  that   the                             

government, unless  it moved for  a downward departure,  see USSG                                                                      

 5K1.1  (1995)    a matter  left wholly  within its  discretion  

would recommend  that the  court impose a  sentence within  those

parameters.

          Cabrera thereupon completed a 13-page Petition to Enter

a Plea  of Guilty (the  Petition) that reinforced  the sentencing

message contained  in the Agreement.   The  Petition included  an

extensive questionnaire.  In addition to answering the questions,

Cabrera initialled each of the 13 pages, as did his attorney.

          A change-of-plea hearing  ensued.  Judge  Casellas told

the appellant the purpose of the  proceeding and interrogated him

at some length.   The appellant stated unequivocally, in response

to direct  questions, that he  had read and  completed truthfully

all  13  pages;  that  he  had  conferred  sufficiently  with his

counsel;  and  that  he  understood  that  his  guilty  plea,  if

accepted, would effectively  waive a long list  of constitutional

rights.     Judge  Casellas  then  requested  the  prosecutor  to

summarize the terms of the Agreement.1  The court made it crystal
                                                  

     1The  prosecutor's summary was  accurate for the  most part,
but he misstated  the projected GSR, describing it as  188 to 208
months.  Given  the express provisions of both  the Agreement and
the  Petition, and  the fact  that the  appellant and  his lawyer
vouchsafed the prosecutor's  summary of the Agreement,  we attach
no  decretory significance  to  this lapsus  linguae.   We  note,                                                              
moreover, that  the presentence investigation report,  which both

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clear  that  the sentence  to  be  imposed  was within  its  sole

discretion,  subject only  to  the  limits set  by  law, and  the

appellant acknowledged that he understood as much.

          Judge Casellas then reviewed the allegations of count 1

with  the appellant  and  informed him  of  the maximum  possible

penalty.  However, the judge failed to mention that the appellant

could not withdraw his  guilty plea if the  court decided not  to

follow the sentencing recommendation contained in the Agreement.

          The district court convened  the disposition hearing on

December  3,  1996.    At the  outset,  the  appellant's  counsel

confirmed  that both he and his  client had read and reviewed the

presentence investigation report, that the report  was "accurate"

and  "fair-minded,"  and  that  they  had  no  objection  to  its

contents.   In  his  allocution,  the  appellant  importuned  the

court's forgiveness.   For its  part, the  government did  little

more  than stand by the Agreement and the sentencing calculations

contained therein.

          In  pronouncing  sentence,  Judge  Casellas  in  effect

accepted  the parties' earlier  stipulation, determining that the

applicable GSR was 188 to 235 months.  He sentenced the appellant

at the apex of the range, but within it.  This appeal ensued.

II.  ANALYSIS          II.  ANALYSIS

          The  appellant's central thesis is that his guilty plea

was involuntary because  he was unaware of its  consequences.  He
                                                  

the appellant and  his attorney read and pronounced "accurate" in
advance of sentencing, tracked the  Agreement and the Petition in
describing the GSR as 188 to 235 months.

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supports this  thesis in  two ways.   First, he  claims that  the

presiding judge failed to warn him that he could not withdraw his

guilty plea  if the judge  decided not to adopt  the government's

sentencing  recommendation.    Second,  he asseverates  that  the

government breached the Agreement.  We turn first to the question

of appealability and then consider the appellant's arguments.

                        A.  Appealability.                                  A.  Appealability.                                                   

          Rule 11 exists as a means of safeguarding the fairness,

integrity,  and public reputation  of judicial proceedings.   See                                                                           

United States v. Parra-Ibanez, 936 F.2d 588, 593 (1st Cir. 1991).                                       

Among  other  things, the  rule  is  intended  to ensure  that  a

defendant who pleads guilty does so with an "understanding of the

nature of the charge and the consequences of his plea."  McCarthy                                                                           

v. United  States, 394  U.S.  459, 467  (1969).   Because of  the                           

importance of the interests  that Rule 11 protects,  we sometimes

will entertain on  direct appeal a Rule 11  challenge even though

the  essence of the  challenge was not  raised in the  nisi prius

court.  See, e.g., United States v. McDonald, 121 F.3d 7, 10 (1st                                                      

Cir. 1997); Parra-Ibanez, 936 F.2d at 593.  This is such a case.                                  

                      B.  The Plea Colloquy.                                B.  The Plea Colloquy.                                                     

          Fed. R. Crim.  P. 11(e)(2) specifically  provides, with

respect to  nonbinding plea  agreements,2 that  "the court  shall

                                                  

     2The plea agreement at issue here is of this stripe, drawing
its essence  from  Fed. R.  Crim.  P. 11(e)(1)(B).   In  it,  the
prosecutor  effectively  agreed  to  take  a  position  vis- -vis
sentencing (i.e., not  opposing a sentence within  the stipulated
GSR), with the understanding that this "recommendation" would not
bind the court.

                                5

advise  the defendant  that  if  the court  does  not accept  the

[sentencing] recommendation or request the defendant nevertheless

has  no  right to  withdraw  the plea."    In this  instance, the

district judge conducted a painstaking Rule 11  colloquy in which

he inquired about the  Agreement and reminded the appellant  that

the government's sentencing recommendation was not binding on the

court.   There was,  however, a flaw:   the judge  never told the

appellant explicitly that he would be unable to withdraw his plea

should  the court  fail  to  act in  accordance  with the  agreed

disposition.

          Notwithstanding the importance of the prophylaxis  that

Rule   11  prescribes,  the  detection   of  an  error  does  not

necessarily require vacation of a defendant's plea.  The drafters

of  Rule  11  made  it  pellucid  that  "any  variance  from  the

procedures   required  by  this   rule  which  does   not  affect

substantial rights  shall  be disregarded."    Fed. R.  Crim.  P.

11(h).  Under this proviso,  "even an error implicating Rule 11's

core  concerns will  not require  vacating a  guilty plea  if the

error,  in context,  is harmless."    McDonald, 121  F.3d at  11.                                                        

Thus, the question before us  reduces to the harmlessness vel non                                                                           

of the judge's omission.3
                                                  

     3When a defendant moves in the district court to withdraw an
earlier guilty  plea, we  customarily test  the district  court's
resolution of  that motion through  a multi-faceted format.   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 occasionally  have utilized this same  method of
analysis in cases in which a defendant alleges for the first time
on appeal that the sentencing court violated Rule 11.  See, e.g.,                                                                          
United States v. Lopez-Pineda, 55 F.3d 693, 696 (1st Cir.), cert.                                                                           

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          To  be sure,  due  process  demands that  a  plea in  a

criminal case "be made voluntarily, knowingly, intelligently, and

with  an  awareness  of the  overall  circumstances  and probable

consequences."  Id. (citing Boykin  v. Alabama, 395 U.S. 238, 243                                                        

n.5 (1969)).  In failing to  apprise the appellant of one of  the

consequences that would flow from the  court's disapproval of the

prosecutor's  sentencing   recommendation,  the   district  court

blemished an  otherwise impeccable  plea colloquy, violated  Rule

11, and precipitated  a due process  challenge.  Nonetheless,  in

the idiosyncratic circumstances  of this case, the  court's error

did not  impair the appellant's  substantial rights.   We explain

briefly.

          In  evaluating  incipient  Rule 11  violations,  courts

should focus on the reality of events as reflected by  the record

and take  care not  to elevate form  over substance.   See United                                                                           

States v. Noriega-Mill n, 110 F.3d 162, 167 (1st Cir. 1997).  For                                  

purposes of this appeal, the pivotal datum is that the court  did

not abandon the prosecutor's recommendation, but, rather, imposed

a sentence of 235 months.  This sentence fell at the apex of, but

within,  the agreed sentencing range.   The omitted warning would

have served  to inform the  appellant of the consequences  of his

plea should the court impose a sentence outside the agreed range;                                                         

that warning  would not  have added to  the appellant's  store of
                                                  

denied,  116  S.  Ct.  259 (1995).    The  multi-part  test  is a                
diagnostic aid, not an obligatory ritual.  See McDonald, 121 F.3d                                                                 
at  10  n.2.    Here,  both  the  trial  court's  error  and  the
harmlessness of that  error are manifest; consequently,  there is
no need to resort to the multi-part test.

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knowledge if  the court imposed a  sentence within the  GSR.  The                                                            

sentence actually  imposed fell in  the latter category,  not the

former.   It follows  inexorably that,  since the contingency  of

which the court failed to  apprise the appellant never arose, the

court's error was benign.   See, e.g., McDonald, 121 F.3d  at 11;                                                         

United States v. Chan, 97 F.3d 1582, 1584 (9th Cir. 1996).                               

          This conclusion is  especially compelling on  the facts

before us.  The record  offers every indication that, despite the

court's lapse, the appellant had actual knowledge of the  omitted

fact.   Indeed,  he acknowledged  as much  in the  Agreement, the

Petition, and the  questionnaire that  accompanied the  Petition.

Since there is no reasonable likelihood that the court's omission

affected the appellant's  willingness to plead guilty,  a finding

of  harmlessness is  appropriate.   See, e.g.,  Chan, 97  F.3d at                                                              

1584; United States v. McCarthy,  97 F.3d 1562, 1575-76 (8th Cir.                                         

1996);  United States v. Martinez-Martinez, 69 F.3d 1215, 1223-24                                                    

(1st Cir. 1995).

                     C.  The Plea Agreement.                               C.  The Plea Agreement.                                                     

          In  his remaining argument,  the appellant asserts that

the  government   should  have   done  more   to  highlight   his

cooperation.  He  also asserts that  the government, in  exchange

for his  guilty plea, agreed  to drop count 2  of the indictment,

yet failed  to mention that count to the judge at the disposition

hearing.  These assertions are not persuasive.

          Passing  the  very   real  question   of  whether   the

appellant's  assertions are procedurally defaulted   a claim that

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a prosecutor breached  a plea agreement ordinarily  must make its

debut in the district court, see  United States v. Clark, 55 F.3d                                                                  

9, 11 (1st  Cir. 1995); United  States v. Giorgi, 840  F.2d 1022,                                                          

1028 (1st Cir.  1988), and the assertions in  question are raised

for the first time in this venue   it is plain that the Agreement

did not require  the United States to dwell  in detail before the

district  court   regarding  the   extent   of  the   appellant's

cooperation.   Without an explicit  commitment to that  effect in

the  agreement itself,  there is  no breach.   See,  e.g., United                                                                           

States v. Guzman, 85 F.3d 823, 829 (1st Cir. 1996); United States                                                                           

v. Hogan, 862  F.2d 386, 388 (1st Cir. 1988).  This is especially                  

true where, as here, the Agreement contains an integration clause

that   expressly  disavows  commitments  not  set  forth  in  the

Agreement's text.4

          Insofar as count  2 is concerned,  the short answer  is

that the district court docket  shows that the prosecutor filed a

written motion to dismiss that count on the day of sentencing and

the court granted the motion.  That ends the matter:  despite the

fact that the prosecutor did not mention count  2 during his oral

presentation  at the disposition hearing, the  count is no longer

                                                  

     4Paragraph 23 of the Agreement reads as follows:

          This   written   agreement   constitutes  the
          complete  Plea Agreement  between the  United
          States,  the defendant,  and the  defendant's
          counsel.   The  United  States  has  made  no
          promises  or  representations except  as  set
          forth in writing in  this plea agreement  and
          deny  [sic] the existence  of any  other term
          and conditions not stated herein.

                                9

zoetic and, therefore, the appellant received the full benefit of

his bargain.

III.  CONCLUSION          III.  CONCLUSION

          We need go  no further.  The purpose  of insisting that

the judge inform a defendant that  he will not have the right  to

withdraw his guilty  plea if the  court eschews the  prosecutor's

sentencing  recommendation is to ensure that the defendant is not

induced  to change  his plea  without being  aware of  a relevant

contingency.  That purpose  was not in any way  frustrated by the

omission  that   occurred  here   since  the   contingency  never

materialized.   Thus, because the district  court's bevue did not

harm  or  prejudice  the appellant,  and  because  the government

abided by its Agreement, the appeal implodes.

Affirmed.          Affirmed.                  

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