
USCA1 Opinion

	




                            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.                                         -2-                                          2                            The Change of Plea Proceedings                            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                   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                                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                   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                                      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.                 _________                                         -15-                                          15
