

                    [NOT FOR PUBLICATION]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 &amp; 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-
