
<head>

<title>USCA1 Opinion</title>



	<style type="text/css" media="screen, projection, print">



		<!--

		@import url(/css/dflt_styles.css);

		-->

	</style>

</head>

<body>

<p align=center>

</p><br>

<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 98-1212 <br> <br>                    UNITED STATES OF AMERICA, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                   ROBERT ALI HERNANDEZ-WILSON, <br> <br>                       Defendant-Appellant. <br> <br> <br> <br>         ON APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>          [Hon. Jos Antonio Fust, U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                     Boudin, Circuit Judge, <br>                Campbell, Senior Circuit Judge, <br>                   and Lipez, Circuit Judge. <br>                                 <br>                                 <br>                                 <br>                                 <br>          Alexander Zeno for appellant. <br>          Timothy Faerber, with whom Guillermo Gil, United States <br>Attorney, Jos A. Quiles-Espinosa, Senior Litigation Counsel, and <br>Nelson Prez-Sosa, Assistant United States Attorney, were on brief <br>for appellee. <br> <br> <br> <br> <br> <br>July 23, 1999 <br> <br> <br> <br>                                 <br>                                 <br>

  LIPEZ, Circuit Judge.  Robert Ali Hernandez-Wilson <br>challenges the validity of his guilty plea to a charge of <br>conspiracy to distribute heroin in violation of 21 U.S.C.  846.  <br>The record reveals that the guilty plea accepted by the district <br>court was the product of confusion on the part of defense counsel, <br>the prosecutor, and the court.  Under these circumstances, we <br>conclude that Hernandez reasonably misunderstood the consequences <br>of his guilty plea.  Therefore, we must vacate the conviction and <br>sentence, set aside the guilty plea, and remand to the district <br>court for further proceedings.  See United States v. Gray, 63 F.3d <br>57, 58 (1st Cir. 1995). <br>                               I. <br>  In April 1997, Hernandez was indicted on four counts <br>related to his participation in a conspiracy to distribute heroin.  <br>Hernandez originally entered a plea of not guilty, but on July 18, <br>1997 a change-of-plea hearing (Rule 11 hearing) was held before the <br>district court.  See Fed. R. Crim. P. 11(c) (requiring that before <br>a guilty plea can be accepted the district court must "address the <br>defendant personally in open court" to ensure that the plea is a <br>knowing and voluntary waiver of the defendant's constitutional <br>rights).  In part based on the government's promise to recommend <br>that he be sentenced under 18 U.S.C.  3553(f), Hernandez changed <br>his plea to guilty on Count One of the indictment, admitting to a <br>violation of 18 U.S.C.  846 (conspiracy to distribute heroin).  <br>  The sentencing provision that was central to the plea <br>agreement, 18 U.S.C.  3553(f), commonly referred to in sentencing <br>parlance as the "safety valve," allows courts to sentence <br>defendants who have little or no prior criminal history "without <br>regard to any statutory minimum sentence" under certain <br>circumstances.  At the time of the July 18, 1997 Rule 11 hearing, <br>Hernandez's defense counsel, the Assistant United States Attorney <br>prosecuting the case, and the district court were all under the <br>impression that Hernandez was preliminarily eligible for sentencing <br>under the safety valve, meaning that his prison sentence could have <br>been as low as 30 months.  On the other hand, if Hernandez did not <br>receive the benefit of the safety valve provision, the crime to <br>which he was pleading guilty carried a mandatory minimum sentence <br>of 60 months. <br>  We can best explain the handling of the "safety valve" <br>provision at Hernandez's Rule 11 hearing on July 18, 1997 by <br>quoting extensively from the hearing: <br>    The Court: You have a plea agreement which I <br>  have examined.  The plea agreement says that <br>  you are pleading guilty to this drug <br>  conspiracy count.  It also spells out the <br>  penalties that we discussed earlier on in this <br>  colloquy.  It also says here that you're going <br>  to try to comply with the safety valve <br>  provisions of Guideline section 5(c)(1).2.  <br>  And if you do so then I will be able to <br>  sentence you without making reference to the <br>  statutory mandatory minimum term of <br>  imprisonment.  Do you understand that? <br> <br>    The Defendant: I don't understand.  I don't <br>  understand.  I didn't understand that part. <br> <br>    The Court: Have you heard about the safety <br>  valve provisions? <br> <br>    Defense Counsel: You Honor, if I may?  His big <br>  concern is that you stated that there is a <br>  statutory minimum of five years.  And all the <br>  time he has been considering level nineteen <br>  which is thirty [months]. <br> <br>    The Court: Let me clarify that confusion that <br>  you have.  When I mentioned the five years <br>  statutory minimum term of imprisonment I <br>  mentioned it because I have an obligation to <br>  tell you about that. Do you understand that? <br> <br>    The Defendant: I understand. <br> <br>    The Court: Also, I have an obligation [to tell <br>  you] about the forty years which is the <br>  maximum.  Do you understand that? <br> <br>    The Defendant: I do. <br> <br>    The Court: But I also have an obligation to <br>  tell you that you can escape that and be <br>  sentenced without reference to that mandatory <br>  minimum if you comply with the safety valve <br>  provision of section 5(c)(1).2.  Do you <br>  understand that? <br> <br>    The Defendant: I do. <br> <br>    The Court: That requires that you sit down <br>  with an agent, tell them everything you know <br>  about this case.  And if you have no criminal <br>  record, if you have no criminal record and you <br>  were not involved with firearms and things of <br>  that sort, then I can give you the benefit of <br>  sentencing you without reference to the <br>  statutory minimum.  For example, to a level <br>  nineteen.  Do you understand that? <br> <br>    The Defendant: I understand. <br> <br>                           *   *   * <br>                                 <br>    The Court: And if you have no criminal history <br>  your Guideline imprisonment range with a level <br>  nineteen will be thirty to thirty-seven <br>  months.  However, if you do not comply with <br>  the safety valve obligations that you have, <br>  that becomes a sixty month sentence.  Do you <br>  understand that?  So it is in your best <br>  interest to comply. <br> <br>    The Defendant: Well, okay.  What I don't <br>  understand is I just signed for thirty months.  <br>  And what I don't understand is if after that <br>  they can give me sixty months.  I don't <br>  understand that. <br> <br>    The Court: Let me explain to you. [Y]ou're not <br>  signing for thirty months.  You are expecting <br>  to be sentenced to thirty months.  And I hope <br>  that that will be the case.  Do you <br>  understand?  But you still have to meet with <br>  an agent, and you have to comply with the <br>  safety valve provision.  You will have to sit <br>  down with this agent and you will have to tell <br>  him this is what happened. . . .  The <br>  government will check that you have no <br>  criminal record.  Which you don't.  And then I <br>  will give you [the] benefits of the safety <br>  valve.  Do you understand that? <br> <br>    The Defendant: I understand. <br> <br>                           *   *   * <br> <br>    The Court: Okay.  The government is going to <br>  recommend a thirty month sentence.  You <br>  understand that? <br> <br>    The Defendant: Ah-ha. <br> <br>    The Court: And the government expects that <br>  you will comply with the safety valve <br>  provision.  You understand? <br> <br>    The Defendant: Right now they will offer the <br>  same thing to my codefendants, right? <br> <br>    The Court: Let me say this.  Let me see if I <br>  can   let me open the book here.  For you to <br>  qualify for the safety valve you have to <br>  comply with five things.  Number one: No <br>  criminal record.  Do you have a criminal <br>  record? <br> <br>    Defense Counsel: No, your Honor.  There is a <br>  Law fifty-four charges, but that's not     <br>  <br>    The Court: Let me change that.  You cannot <br>  have more than one point of criminal record.  <br>  It seems to me that you're okay in that <br>  sense. <br> <br>(emphasis added). <br> <br>  In fact, as discussed more fully below, at the time of <br>the Rule 11 hearing Hernandez was ineligible for the safety valve.  <br>In order to qualify for sentencing under the safety valve, a <br>defendant may "not have more than 1 criminal history point."  See <br>18 U.S.C.  3553(f)(1).  All the participants (i.e., the <br>prosecutor, the court, defense counsel and Hernandez) were aware <br>that Hernandez had one prior criminal conviction at the time of the <br>plea hearing.  In November of 1995, Hernandez pled guilty to one <br>count of simple assault in violation of Law 54 (Puerto Rico's <br>domestic violence statute).  On January 9, 1996, Hernandez was <br>sentenced to eighteen (18) months probation pursuant to his <br>conviction under Law 54.  All of the participants correctly <br>understood that this conviction gave Hernandez only one criminal <br>history point.  However, either they did not know or they did not <br>appreciate the significance of the fact that Hernandez had <br>committed the offense for which he was pleading guilty while on <br>probation for the Puerto Rico Law 54 conviction.  Under the <br>sentencing guidelines, this fact added two more points to <br>Hernandez's criminal history score, thereby disqualifying him from <br>the benefits of the safety valve.  See U.S.S.G.  4A1.1(d) ("Add 2 <br>points [to the defendant's criminal history score] if the defendant <br>committed the instant offense while under any criminal justice <br>sentence, including probation . . . ."); see also 18 U.S.C.  <br>3553(f) (restricting sentencing under the safety valve to <br>defendants that "do[] not have more than 1 criminal history <br>point").  Therefore, at the time Hernandez negotiated his plea <br>bargain with the government and at the time he entered his plea of <br>guilty, there was no possibility that Hernandez could be sentenced <br>to anything less than 60 months, the statutory mandatory minimum <br>sentence for the crime to which Hernandez was pleading guilty. <br>  On October 17, 1997, Hernandez's former defense counsel <br>moved for leave to withdraw as counsel for the defendant citing <br>irreconcilable differences.  On October 19, 1997, Hernandez moved <br>pro se for dismissal of his counsel.  In addition, Hernandez <br>requested (1) a continuance of the sentencing hearing; (2) <br>appointment of new counsel; and (3) a hearing concerning whether <br>Hernandez had been adequately counseled as to the terms and <br>conditions of the plea agreement.  By margin order, the district <br>court appointed new counsel to represent Hernandez and continued <br>the sentencing hearing until January 1998.  By the time of <br>sentencing in January 1998, Hernandez was represented by different <br>counsel.  Hernandez's new counsel did not renew or otherwise pursue <br>Hernandez's motion for a hearing on the validity of the guilty <br>plea. <br>  The district court held a sentencing hearing on January <br>22, 1998.  Pursuant to the pre-sentence report, Hernandez was <br>assigned a criminal history score of three.  At sentencing, <br>Hernandez exhibited a lack of understanding about the reasons for <br>the unavailability of a thirty month sentence.  The court responded <br>that "we have already discussed this; that you were   that when I <br>took your plea, I do think that it was very carefully explained to <br>you, all the consequences of your plea.  You agree to that, that in <br>that sense that I did not misrepresent anything to you, correct?"  <br>Hernandez responded that he was "not very good at English," that <br>the interpreter was speaking very fast and that he "had already <br>signed [the plea agreement] when you talked to me about the safety <br>valve."  Later in the sentencing hearing, Hernandez's counsel <br>indicated Hernandez's belief that he had not been adequately <br>counseled "about the impact of [the Law 54] charge in the State <br>courts."  Despite this indication of a problem with Hernandez's <br>plea, and Hernandez's earlier pro se request for a hearing on <br>whether he had been adequately counseled about the terms and <br>conditions of his plea agreement, the district court made no <br>further inquiry into whether Hernandez had understood the <br>consequences of his guilty plea at the time that it was entered, <br>and proceeded to sentence Hernandez to the statutory minimum <br>sentence of 60 months incarceration.  Hernandez now appeals from <br>his conviction and sentence.   <br>                              II. <br>  Rule 11 of the Federal Rules of Criminal Procedure <br>governs the acceptance of guilty pleas to federal criminal <br>violations.  Pursuant to Rule 11, in order for a plea of guilty to <br>constitute a valid waiver of the defendant's right to trial, guilty <br>pleas must be knowing and voluntary: "Rule 11 was intended to <br>ensure that a defendant who pleads guilty does so with an <br>'understanding of the nature of the charge and the consequences of <br>his plea.'" United States v. Cotal-Crespo, 47 F.3d 1, 4 (1st Cir. <br>1995) (quoting McCarthy v. United States, 394 U.S. 459, 467 <br>(1969)).  A breach of Rule 11 that "implicates one of the rule's <br>'core concerns' mandates that the plea be set aside."  United <br>States v. Medina-Silverio, 30 F.3d 1, 3 (1st Cir. 1994) (internal <br>quotations omitted).  In previous cases we have identified three <br>core concerns: "1) absence of coercion; 2) understanding of the <br>charges; and 3) knowledge of the consequences of the guilty plea."  <br>Cotal-Crespo, 47 F.3d at 4 (citing United States v. Allard, 926 <br>F.2d 1237, 1244-45 (1st Cir. 1991)).  Rule 11 by its terms excuses <br>harmless errors, see Fed. R. Crim. P. 11(h), and focuses the <br>court's attention instead on "whether any particular defect in the <br>Rule 11 hearing affected the defendant's 'substantial rights.'" <br>United States v. Marrero-Rivera, 124 F.3d 342, 348 (1st Cir. 1997).  <br>In determining whether defendant's substantial rights were <br>abridged, we consider the totality of the circumstances to <br>determine "what was communicated by the trial court, and what <br>should reasonably have been understood by the defendant."  Cotal- <br>Crespo, 47 F.3d at 4. <br>  Despite the failure of Hernandez's new attorney to renew <br>explicitly at the sentencing hearing his client's request that the <br>district court examine Hernandez's understanding of the <br>consequences of his plea at the time of the Rule 11 hearing, <br>Hernandez has not waived this issue on appeal.  Contrary to most <br>allegations of error, "a Rule 11 challenge will not be deemed <br>waived upon a party's failure to raise it in the district court."  <br>United States v. Parra-Ibanez, 936 F.2d 588, 593 (1st Cir. 1991).  <br>Because of the important concerns protected by Rule 11, we "must <br>determine compliance with Rule 11, even if a claim of noncompliance <br>was never presented to the trial court."  Id. (citation omitted).  <br>However, in recognition of the limits of appellate review, we are <br>constrained to consider only the record that was created in the <br>district court in considering a Rule 11 challenge on direct appeal.  <br>See id.  Because Hernandez's appeal "can be decided wholly on the <br>basis of the formal record accumulated thus far . . . [Hernandez's] <br>Rule 11 challenge is properly before us," id. at 594, and we <br>consider it on the merits. <br>                              III. <br>  Hernandez alleges that he was misled by the prosecutor, <br>the court, and his own counsel at his Rule 11 hearing and thus his <br>guilty plea was not "given voluntarily and intelligently."  See <br>United States v. Gray, 63 F.3d 57, 60 (1st Cir. 1995).  On the <br>basis of our review of the Rule 11 hearing transcript, we agree. <br>  The prosecutor, the court and defense counsel believed <br>that Hernandez would be eligible for sentencing under the safety <br>valve, 18 U.S.C.  3553(f).  Indeed, in explaining the terms of the <br>plea to Hernandez, the court at two points affirmatively <br>represented to Hernandez that his criminal history made him <br>eligible for sentencing under the safety valve.  Although the <br>court's representations about the availability of the safety valve <br>were phrased conditionally several times, the court assumed that <br>Hernandez's criminal history was not a problem.  Instead, the court <br>used conditional language to caution Hernandez that in order to get <br>the benefit of the safety valve, he needed to truthfully and <br>completely describe his involvement in the conspiracy to government <br>agents.  The court was thus referring to a condition within <br>Hernandez's control when he told Hernandez that "it is in your best <br>interest to comply [with the conditions of 18 U.S.C.  3553(f)]."  <br>The court specifically pointed out to Hernandez more than once that <br>he would be obligated to de-brief government agents about his <br>involvement in the conspiracy in order to comply with the safety <br>valve.  If he did so, the court indicated, he would be eligible for <br>sentencing under the safety valve. <br>  In United States v. Gray, 63 F.3d 57 (1st Cir. 1995), we <br>faced an analogous situation.  When the district court, pursuant to <br>Rule 11, asked Gray whether he understood the consequences of his <br>proffered guilty plea, Gray responded, "Not exactly."  Id. at 60.  <br>In subsequently explaining Gray's potential sentence, "the court <br>mistakenly stated, 'The maximum punishment is ten years to life.'" <br>Id.  In fact, the mandatory minimum for the crime to which Gray was <br>pleading guilty was ten years; the court had no discretion to <br>impose a lower sentence.  Id.  We vacated Gray's conviction: <br>    We think that the substance of what was <br>  communicated to Gray, specifically the <br>  district court's incorrect and misleading <br>  explanation of the mandatory minimum sentence, <br>  could have led a reasonable person to <br>  misunderstand the consequences of his guilty <br>  plea in this context, thus implicating one of <br>  Rule 11's core concerns. <br> <br>      Although the court's error is not a <br>  "total failure to address" one of Rule 11's <br>  core concerns, see Cotal-Crespo, 47 F.3d at 5, <br>  we cannot say with any certainty that Gray's <br>  reasonable misunderstanding of his sentence <br>  did not affect his substantial rights within <br>  the meaning of Rule 11. . . . It seems likely, <br>  at the very least, that if Gray had clearly <br>  and accurately understood the consequences of <br>  a guilty plea, he would have decided <br>  differently.  The court's error leading to <br>  Gray's misunderstanding therefore affected <br>  Gray's substantial rights, and Gray's guilty <br>  plea cannot be said to have been given <br>  voluntarily and intelligently. <br> <br>Gray, 63 F.3d at 61. <br>  A similar result obtains in this case.  Hernandez was <br>clearly concerned with the length of his sentence before he pled <br>guilty.  He was told that he would be eligible for a lighter <br>sentence for which he was not eligible.  This misunderstanding <br>implicates one of Rule 11's core concerns (i.e., the defendant's <br>knowledge of the consequences of his plea).  See Cotal-Crespo, 47 <br>F.3d at 4.  Hernandez's plea was unmistakably induced at least in <br>part by an inaccurate representation by the court about the <br>consequences of his plea, thereby affecting his substantial rights.  <br>His guilty plea must therefore be set aside.  See McCarthy v. <br>United States, 394 U.S. 459, 466 (1969) ("[I]f a defendant's guilty <br>plea is not equally voluntary and knowing, it has been obtained in <br>violation of due process and is therefore void."); see also United <br>States v. Gray, 63 F.3d 57 (1st Cir. 1995); Correale v. United <br>States, 479 F.2d 944 (1st Cir. 1973).   <br>  Accordingly, we vacate the judgment of conviction and the <br>sentence, set aside the guilty plea, and remand the case for <br>further proceedings consistent with this opinion.</pre>

</body>

</html>

