
USCA1 Opinion

	




          December 23, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 91-2249                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  RUBEN E. ZORRILLA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF RHODE ISLAND                      [Hon. Francis J. Boyle, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                           Campbell, Senior Circuit Judge,                                     ____________________                             and Brody,* District Judge.                                         ______________                                _____________________               Jeffrey L. Baler for appellant.               ________________               Margaret E. Curran, Assistant  United States Attorney,  with               __________________          whom  Lincoln C. Almond,  United States Attorney,  and Kenneth P.                _________________                                __________          Madden,  Assistant  United States  Attorney,  were  on brief  for          ______          appellee.                                 ____________________                                 ____________________                                        ____________________          *  Of the District of Maine, sitting by designation.                    TORRUELLA, Circuit  Judge.   In this  appeal, appellant                               ______________          alleges  that the  district court  erred in  determining that  he          entered  a guilty plea voluntarily and  knowingly, and in failing          to establish a factual basis for the plea.  Due  to these errors,          appellant asks us to vacate  his plea so that he may  plead anew.          We cannot grant appellant the relief he seeks and  we thus affirm          the actions of the district court.                                        FACTS                                        FACTS                                        _____                    In  April 1991  police  obtained a  search warrant  for          appellant's   apartment  in   Providence,  Rhode   Island,  which          appellant  shared with  Sophia Soto,  his girlfriend.   When  the          police entered the  home they  found 125.68 grams  of cocaine,  a          loaded pistol, cash, and  other items.  Appellant confessed  to a          government agent that the firearm belonged to him.                    Appellant  and  Soto  subsequently  were  charged  with          conspiracy to distribute and to possess with intent to distribute          cocaine  under  21  U.S.C.     846,  possession  with  intent  to          distribute cocaine under 21 U.S.C.   841(a)(1) and 18 U.S.C.   2,          and possession  of a  firearm during  and in  relation to  a drug          trafficking charge under 18  U.S.C.   924(c)(1).  At  his initial          appearance, appellant pled not guilty to the charges.                      Appellant later asked to change his plea pursuant to an          agreement  with the  government.   Under the  agreement appellant          would plead guilty to  each charge, and in return  the government          would   recommend  the  minimum   sentence.    Additionally,  the          government  would  not  call  appellant to  testify  against  co-          defendant Soto.                      At the change of plea hearing the district court  judge          announced  that he  would  ask appellant  a  number of  questions          concerning the plea.   The judge also informed appellant  that if          he  did not understand anything  he should inform  the judge.  An          interpreter  aided appellant, who  is a citizen  of the Dominican          Republic.                     The  district  court  first asked  appellant  about his          educational background,  and appellant replied that  he completed          one year of  high school in  the Dominican Republic.1   The judge          also  asked  whether appellant  had  taken any  drugs  or alcohol          within  the previous  24 hours,  and appellant  denied doing  so.          Appellant's  counsel  then  assured  the  court  that   appellant          understood the proceedings and was acting voluntarily.  Appellant          also expressed satisfaction with counsel's representation.                      The judge  proceeded to inform appellant  of the rights          he would waive  by pleading guilty,  and asked whether  appellant          understood these  rights.   The judge discussed  individually the          right to  trial by  jury, the  need for a  unanimous vote  by the          jury, the  existence of  a  presumption of  innocence, and  other          relevant rights.   Appellant affirmed that he  understood each of          these rights and his assent to waive them.                      Appellant then  stated that  he understood  the charges          against him, but  that he wanted the judge  to review the maximun                                        ____________________          1   In spite of  this answer,  a dispute  exists as  to how  much          education appellant has completed.  The presentence report states          that appellant completed some  college education in the Dominican          Republic.                                         -3-          sentences.   The  district court judge  thus recited  the maximum          allowable sentence on each count,  asking after his recitation on          each  count  "Do  you  understand  that?"    Appellant  responded          affirmatively as to each count.                      The district  court judge then  asked appellant  "Would          you tell me in your own  words what you understand the charges to          be?   Do you know what the  charges are?"  In response, appellant          summarized each of  the three  charges.  The  judge himself  then          summarized  each  charge,  again   asking  appellant  whether  he          understood each  charge.  The judge also  determined that counsel          explained to  appellant that the  plea agreement was  not binding          upon the court,  and that appellant could not  revoke his plea if          the court imposed a  higher sentence than the minimum.  The judge          once again summarized the charges, and at this point accepted the          guilty plea.                    Thereafter a probation  officer prepared a  presentence          report containing a statement  signed by appellant describing the          crimes and an  offense level recommendation.   The district court          judge  sentenced appellant  in  accordance with  the government's          recommendations.  The judge  imposed the minimum sentence allowed          for appellant's  offense level, and ordered  that upon completion          of the  prison term  appellant would  participate in a  substance          abuse  program,  pay  the  costs of  supervised  release,  and be          surrendered to the Immigration and Naturalization Service.                                     LEGAL ANALYSIS                                    LEGAL ANALYSIS                                    ______________                    Appellant  alleges two  errors  by the  district court.                                         -4-          Appellant first contends that the district court failed to ensure          that appellant understood the nature of the charge underlying his          plea,  in violation  of Fed.  R. Crim.  P. 11(c)(1).2   Appellant          next contends that the district court judge failed to establish a          factual basis for the guilty plea  at the change of plea hearing,          in  violation of  Fed. R.  Crim. P.  11(f) and  11(g).3   On this          basis,  appellant urges  us to vacate  his plea and  allow him to          plead again. As  to  appellant's  first argument,  we  note  that          "[t]here is no talismanic test" for ensuring compliance with this          rule.   United States  v. Allard, 926  F.2d 1237, 1245  (1st Cir.                  _____________     ______          1991).    We  must look  at  the  circumstances  of  the case  to          determine whether  the district  court informed the  defendant of          the charges,  and determined that the  defendant understood them.          Id. at 1244.            ___                    In  this case,  we are  struck with the  district court          judge's thorough explanation of the charges and searching inquiry                                        ____________________          2  This rule states that  "[b]efore accepting a plea of guilty or          nolo contendere, the court must address the defendant  personally          in open court and inform the defendant of, and determine that the          defendant understands,  the following:   (1)  the  nature of  the          charge to which the plea is offered  . . .  ."  Fed. R.  Crim. P.          11(c)(1).          3   Rule 11(f) states that "[n]otwithstanding the acceptance of a          plea of guilty, the  court should not enter a judgment  upon such          plea without making such  inquiry as shall satisfy it  that there          is a factual basis for the plea."  Fed. R. Crim. P. 11(f).             Rule 11(g) states that  a "verbatim record of the  proceedings          at which the  defendant enters  a plea shall  be made"  including          "the  court's  advice  to the  defendant,  the  inquiry into  the          voluntariness  of the plea including any  plea agreement, and the          inquiry into  the accuracy of a  guilty plea."  Fed.  R. Crim. P.          11(g).                                           -5-          into appellant's  understanding of them.   Indeed, appellant knew          to ask  the judge about an area which confused him -- the maximum          sentences which could be imposed on him.   When the judge recited          the maximum  sentences,  appellant indicated  that he  understood          them.  Given the district court judge's repeated summaries of the          charges and  efforts to ensure appellant's  full understanding of          them,  we  cannot say  that the  district  court judge  failed to          comply with the requirements of Rule 11(c)(1) in determining that          appellant   understood  the   charges.     We  therefore   reject          appellant's first argument.                    As  to  appellant's  second  argument,  the  government          concedes that  the district court  failed to establish  a factual          basis for the guilty  plea at the hearing, and we acknowledge the          district  court's failure in this  regard.    Nonetheless, we are          not  convinced that this error gives appellant the right to plead          anew.     Rule  11(h) states  in unmistakable  terms that  "[a]ny          variance from the procedures required by this rule which does not          affect substantial rights  shall be disregarded."   Fed. R. Crim.          P. 11(h).   Thus, absent a showing of prejudice  to appellant, we          cannot grant relief.   As we stated in Allard,  "[m]ere technical                                                 ______          violations . .  . do not warrant setting aside  a plea."  Allard,                                                                    ______          926 F.2d at 1244.   Appellant has failed to  allege any prejudice          flowing  from this  error, and  we can  find none.   The  lack of          prejudice is fatal to appellant's claim.                      In  support  of  our  conclusion that  the  failure  to          establish  a factual basis  did not prejudice  appellant, we note                                         -6-          that  a  sufficient factual  basis for  the  plea existed  in the          record.  See United  States v. Adams, 961  F.2d 505, 512-13  (5th                   ___ ______________    _____          Cir. 1992) (information from  presentence report and plea hearing          used  to establish factual basis when district court failed to do          so  at change  of plea  hearing).   Information derived  from the          presentence  report  and  probable  cause  hearing  reveals  that          appellant's conduct satisfied the elements of the crimes charged.          This information  includes appellant's own signed  confession and          evidence  presented   at  the  probable  cause   hearing  linking          appellant to the cocaine and firearm.                      As  appellant has suffered  no concrete prejudice other          than  entering a  plea he  now  regrets, we  cannot set  his plea          aside.                     Affirmed.                    ________                                         -7-
