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.

______________
alleges

that the

district court

entered

a guilty plea voluntarily and

In this

erred in

determining that

he

knowingly, and in failing

to establish a factual basis for the plea.

appellant asks us to vacate

appeal, appellant

Due

to these errors,

his plea so that he may

We cannot grant appellant the relief he seeks and

plead anew.

we thus affirm

the actions of the district court.

FACTS
FACTS
_____
In

April 1991

police

obtained a

search warrant

for

appellant's
appellant

apartment

in

shared with

police entered the

Providence,

Sophia Soto,

home they

loaded pistol, cash, and

Rhode

Island,

his girlfriend.

found 125.68 grams

other items.

which

When

the

of cocaine,

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

distribute cocaine under 21 U.S.C.

and possession

of a

intent

841(a)(1) and 18 U.S.C.

firearm during

trafficking charge under 18

with

U.S.C.

and in

relation to

924(c)(1).

At

to

2,

a drug

his initial

appearance, appellant pled not guilty to the charges.

Appellant later asked to change his plea pursuant to an

agreement

with the

government.

would plead guilty to

would

recommend

government

would

Under the

agreement appellant

each charge, and in return

the

minimum

not

call

sentence.

appellant to

the government

Additionally,
testify

against

the

co-

defendant Soto.

At the change of plea hearing the district court

announced

that he

would

ask appellant

number of

judge

questions

concerning the plea.

he

The judge also informed appellant

did not understand anything

interpreter

he should inform

aided appellant, who

is a citizen

that if

the judge.

An

of the Dominican

Republic.
The

district

educational background,

court

high school in

also

whether appellant

within

the previous

Appellant's

counsel

appellant

and appellant replied that

one year of
asked

first asked

24 hours,
then

he completed

the Dominican Republic.1

had

taken any

and appellant

assured

the

court

about his

drugs

The judge

or alcohol

denied doing
that

understood the proceedings and was acting voluntarily.

so.

appellant

Appellant

also expressed satisfaction with counsel's representation.

The judge
he would waive

by pleading guilty,

understood these
right to
jury, the

proceeded to inform appellant

rights.

trial by

existence of

relevant rights.

and asked whether

The judge discussed

jury, the
a

of the rights

need for a

presumption of

appellant

individually the

unanimous vote
innocence, and

Appellant affirmed that he

by the

other

understood each of

these rights and his assent to waive them.

Appellant then
against him, but

stated that

he understood

that he wanted the judge

the charges

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

that?"

count

"Do

you

understand

Appellant

responded

affirmatively as to each count.

The district

court judge then

you tell me in your own

be?

summarized

each

understood each
explained to

charges are?"

the three
charge,

charge.

charges.

again

In response, appellant
The

asking

The judge also

appellant that the

upon the court,

judge himself

appellant

whether

then

he

determined that counsel

plea agreement was

and that appellant could not

the court imposed a

"Would

words what you understand the charges to

Do you know what the

summarized each of

asked appellant

not binding

revoke his plea if

higher sentence than the minimum.

The judge

once again summarized the charges, and at this point accepted the
guilty plea.
Thereafter a probation
report containing a statement
crimes and an
judge

recommendations.

The judge

presentence

signed by appellant describing the

offense level recommendation.

sentenced appellant

for appellant's

officer prepared a

in

The district court

accordance with

the government's

imposed the minimum sentence allowed

offense level, and ordered

that upon completion

of the
abuse

prison term
program,

appellant would

pay

the

costs of

participate in a
supervised

substance

release,

and be

surrendered to the Immigration and Naturalization Service.

LEGAL ANALYSIS
LEGAL ANALYSIS
______________
Appellant

alleges two

errors

by the

district court.

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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
in

violation of

basis,

Fed. R.

appellant urges

plead again. As

to

at the change of plea hearing,

Crim. P.
us to vacate

appellant's

11(f) and

11(g).3

his plea and

first argument,

On this

allow him to
we

note

that

"[t]here is no talismanic test" for ensuring compliance with this

rule.
1991).

United States
_____________
We

must look

determine whether
the charges,

v. Allard, 926
______
at

the

the district

F.2d 1237, 1245

circumstances

of

court informed the

and determined that the

(1st Cir.

the case

to

defendant of

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
to ask

understanding of them.

the judge about an area which confused him -- the maximum

sentences which could be imposed on him.

the maximum
them.

Indeed, appellant knew

sentences,

When the judge recited

appellant indicated

that he

understood

Given the district court judge's repeated summaries of the

charges and
them,

we

efforts to ensure appellant's

cannot say

that the

district

full understanding of
court judge

failed to

comply with the requirements of Rule 11(c)(1) in determining that

appellant

understood

the

charges.

We

therefore

second

argument,

reject

appellant's first argument.

As

to

concedes that

appellant's

the district court

basis for the guilty

district
not

the

government

failed to establish

a factual

plea at the hearing, and we acknowledge the

court's failure in this

regard.

Nonetheless, we are

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
P. 11(h).

shall be disregarded."

Thus, absent a showing of prejudice

cannot grant relief.

violations . .

As we stated in Allard,
______

. do not warrant setting aside

926 F.2d at 1244.

Appellant has failed to

flowing

error, and

from this

we can

Fed. R. Crim.

to appellant, we

"[m]ere technical
a plea."

Allard,
______

allege any prejudice

find none.

The

lack of

prejudice is fatal to appellant's claim.

In
establish

support

of

a factual basis

our

conclusion that

did not prejudice

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the

failure

to

appellant, we note

that

record.

sufficient factual

basis for

See United States v. Adams, 961

___ ______________
_____

Cir. 1992) (information from

used
so

the

plea existed

in the

F.2d 505, 512-13

(5th

presentence report and plea hearing

to establish factual basis when district court failed to do

at change

presentence

of plea
report

hearing).

and

probable

Information derived
cause

hearing

from the

reveals

that

appellant's conduct satisfied the elements of the crimes charged.

This information
evidence

includes appellant's own signed

presented

at

the

probable

cause

confession and
hearing

linking

appellant to the cocaine and firearm.

As
than

appellant has suffered

entering a

plea he

aside.
Affirmed.
________

now

no concrete prejudice other

regrets, we

cannot set

his plea

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