
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-2285                                    UNITED STATES,                                      Appellee,                                          v.                                     JOHN PATTI,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Steven J. McAuliffe, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                              Cyr, Senior Circuit Judge,                                   ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            John Patti on brief pro se.            __________            Paul M. Gagnon, United States Attorney, and Jean B. Weld,            ______________                              ____________        Assistant United States Attorney, on Motion for Summary Disposition        for appellee.                                 ____________________                                     May 2, 1997                                 ____________________                      Per Curiam.   Pursuant to a written plea agreement,                      __________            defendant John J. Patti pled guilty to a one count indictment            charging him with conspiracy  to commit access device (credit            card)  fraud   by  knowingly   and   intentionally  using   a            counterfeit credit card, in violation of 18 U.S.C.   371, and              1029(a)(1).  He was sentenced to 18 months' imprisonment.                      On  appeal he seeks for  the first time to withdraw            his  guilty plea.  To prevail on this "afterthought ground" a            defendant must show a  "substantial defect" in the record  of            the  Rule 11 proceeding itself.   United States  v. Piper, 35                                              _____________     _____            F.3d  611  (1st Cir.  1994), cert.  denied,  115 S.  Ct. 1118                                         _____________            (1995); see also United States v. Noriega-Millan, -- F.3d ---                    ________ _____________    ______________            , 1997 WL 151202 *4 & n.4 (1st Cir. Apr. 7, 1997).1   This he                                                              1            has not done.                      Patti claims that his plea  was involuntary because            he did not understand the "true nature of the elements of the            crime charged in the indictment."   He alleges that there was            an insufficient factual basis for his plea, that his attorney            failed  to  explain  the   charge  to  him,  and   the  court            mischaracterized the charged crime.                       The record contradicts these assertions.  Patti was            advised by  the Court, in plain and  understandable terms, of                                            ____________________               1An appellant faces a "high hurdle" when he seeks to set               1            aside a guilty plea for the first time on appeal, although            the contours of the burden are "somewhat cloudy."   Noriega-                                                                ________            Millan, -- F.3d ---, 1997 WL 151202 *6 n.4 (citations            ______            omitted).  We need not reach that issue here.                                          -2-            the  elements of the offense.   True, in  addition to telling            Patti             that  he  was charged  with  conspiring to  use  a particular            "counterfeit"  card,   the  court   also  defined  the   term            "unauthorized"   card.     "Unauthorized"  has   a  different            statutory  meaning  from  "counterfeit,"   see  18  U.S.C.                                                          ___            1029(e)(2)(3),  and  use   of  an   "unauthorized"  card   is            criminalized in a  separate subsection  of the law.   See  18                                                                  ___            U.S.C.    1029(a)(2).  The  two subsections  carry  different            maximum penalties, but the crime to which Patti actually pled            guilty -- conspiracy to commit another offense, see 18 U.S.C.                                                            ___              371 --  carries a maximum  five-year penalty regardless  of            whether the object offense is defined in subsection (a)(1) or            in subsection (a)(2) of 18 U.S.C.   1029.                        The  "totality" of  the  hearing  record,  however,            reveals no misunderstanding as to the charge.   United States                                                            _____________            v. Martinez-Martinez,  69 F.3d  1215, 1222 (1st  Cir.), cert.               _________________                                    _____            denied, 116 S. Ct.  1343 (1995).  The  elements of the  crime            ______            were reiterated at the  hearing by the government prosecutor,            whose  offer  of  proof  emphasized that  the  card  fit  the            definition  of  "counterfeit" because  it had  been altered.2                                                                        2            The  definition of a  "counterfeit access  device," expressly                                            ____________________               2The name, account number and bank imprinted on the face               2            of  the card did not match the information encoded on the            card's magnetic stripe.                                          -3-            including  any  component that  is  "counterfeit, fictitious,            altered,  or forged," was fully set forth in the written plea            agreement.   Patti  signed the  agreement, and  certified his            understanding of its terms.                        Under oath at the plea  hearing, Patti said that he            understood the charge, his attorney said that he had reviewed            each paragraph of  the indictment and the plea agreement with            Patti, and Patti swore  that he was fully satisfied  with his            attorney's  representation  and advice.    Any  error in  the            district  court's  explanation  thus  was  harmless.   United                                                                   ______            States v. Buckley, 847  F.2d 991, 1000 n.11 (1st  Cir. 1988),            ______    _______            cert. denied, 488 U.S. 1015 (1989); see also United States v.            ____________                        ________ _____________            Japa,  994 F.2d 899, 902 (1st Cir.  1993).  Even if, as Patti            ____            now   belatedly claims,  he personally  did not  understand a            legal nuance,  an informed plea based  on competent counsel's            advice3  is acceptable  in  the circumstances  of this  case.                  3            Allard v. Helgemoe, 572  F.2d 1, 6 (1st Cir.),  cert. denied,            ______    ________                              ____________            439  U.S. 858 (1978); see  also Nelson v.  Callahan, 721 F.2d                                  _________ ______     ________            397, 401 (1st Cir. 1983).                        Patti   also  now   claims   that   there  was   an            insufficient factual  basis for his  plea because he  did not                                            ____________________               3If Patti now wishes to offer extra-record facts to prove               3            otherwise, he must initiate a collateral proceeding under 28            U.S.C.   2255.  Noriega-Millan, -- F.3d --, 1997 WL 151202 *6                            ______________            n.3.  We caution, however, that ordinarily a defendant will            not be heard, even in a collateral proceeding, to controvert            his own sworn Rule 11 statements.  See United States v. Butt,                                               ___ _____________    ____            731 F.2d 75, 80 (1st Cir. 1984).                                         -4-            know  that   the  card   specified  in  the   indictment  was            counterfeit.    The  record  reflects,  however,  that  Patti            admitted to  the probation  officer that  when he  joined the            conspiracy he knew its breadth.  He knew it was a "complete,"            on-going,  "stolen   credit  card   scam,"  replete  with   a            designated  "fence."  Indeed, six credit  cards, all of which            were once valid, but subsequently traded, sold, or stolen and            reprogrammed, were  found in  Patti's rented automobile.   He            admitted  knowing  that  he had  no  right  to  use the  card            specified  in the  indictment, and  assumed it  was "stolen."            The only ignorance  he claimed was of the fact  that the card            was "all rigmaroled like . . . they say."                       True,   a  "conspiracy   to  commit   a  particular            substantive offense cannot exist  without at least the degree            of  criminal  intent necessary  for  the  substantive offense            itself."  Ingram v.  United States, 360 U.S. 672  (1959); see                      ______     _____________                        ___            also  Piper, 35 F.3d  at 614  (explaining that  a conspirator            ____  _____            must  have  intended  both to  agree  and  to  effectuate the            commission of the substantive  offense).  We need  not decide            here,  however,  how  much  technological  knowledge  may  be            imputed to a conspirator who  has admittedly conspired to use            an illicit access device.                       The hearing  record  reflects a  factual basis  for            doubting the reliability  of Patti's self-professed ignorance            that  the  card  was  altered,  and  a  rational  reason  for                                         -5-            calculating  that his own interests would be best served by a            guilty  plea.   See  North Carolina  v.  Alford, 400  U.S. 25                            ___  ______________      ______            (1970). An  informed and  calculated plea based  on competent            counsel's advice about the wisdom of pleading guilty or going            to trial is all that is required.  Allard, 572 F.2d at 6.                                                   ______                      As to Patti's remaining challenges to the sentence:                      (1)   We  see  no "clear  error"  in  the  district            court's decision  to  increase Patti's  guideline  sentencing            range by two levels  for "more than minimal planning,"  under            USSG     2F1.1(b)(2).   Ample  record  evidence supports  the            court's  finding that Patti's participation in the conspiracy            was not a "spur of the moment" crime, but the product of more            than minimal  planning.  United States v.  Gregorio, 956 F.2d                                     _____________     ________            341, 343 (1st  Cir. 1992).  In addition to  Patti's two known            uses of the counterfeit card on the day he was  arrested, the            other  five illicit cards were  found concealed in the panels            of an automobile which he had rented  two weeks earlier.  See                                                                      ___            USSG   1B1.1 comment (n.1(f)).                      (2)  There is also no support for Patti's argument,            raised for the first time on appeal, that the enhancement for            "more  than  minimal  planning"  somehow  violated  the  plea            agreement or Patti's understanding of the plea agreement, and            required the court  to sua sponte offer  Patti an opportunity                                   ___ ______            to withdraw his guilty plea.                                           -6-                      The plea agreement  expressly was  made subject  to            Fed. R. Crim. P.  11(e)(1)(B), and the Sentencing Guidelines.            Before  entering his  guilty  plea, Patti  was  unequivocally            informed  by  the court  that he  would  not be  permitted to            withdraw the plea except in one  circumstance.  "If I do  not            accept the [$2,000 fraud loss] stipulation, Mr. Patti, I will            allow you to withdraw your plea of guilty if you choose to do            so,  however, you will not  be allowed to  withdraw your plea            for any other reason; do you understand?"  Patti said that he            understood.              Accordingly,  the  judgment  of  the            district court is affirmed.                              ________                                         -7-
