
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE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) & (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                                          2          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                                          3          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.                                          4          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.          _____________    ____________                               _____                                          6                    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.                                          7          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                                          8          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.          ________                                          10
