USCA1 Opinion

United States Court of Appeals

For the First Circuit

____________________

No. 96-1420

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

RAFA L NORIEGA-MILL N, A/K/A RAFI,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. H ctor M. Laffitte, U.S. District Judge]

___________________

____________________

Before

Boudin, Circuit Judge,

_____________

Campbell and Bownes, Senior Circuit Judges.

_____________________

____________________

Juan David Vilar -Col n on brief for appellant.

_______________________

Jeannette Mercado-R os, Attorney, with whom Guillermo Gil, Unit

______________________
_____________

States Attorney, Jos A. Quiles-Espinosa, Senior Litigation Counsel

_______________________

and Antonio R. Baz n, Assistant United States Attorney, were on bri

________________
for appellee.

____________________

April 7, 1997
____________________

BOWNES, Senior Circuit Judge.

BOWNES, Senior Circuit Judge.
____________________

Defendant-appellant

Rafael Noriega-Millan petitioned the district court to change

his plea from not guilty to guilty as to all eleven counts of

a superseding indictment charging him with violating a number

of

federal firearms

Millan

U.S.C.

accepted

Count

with possession of a

922(o),

imprisonment.

term of

laws.

carried

nine, charging

machine gun in

ten-year

For each of the remaining

imprisonment was

five years.

Noriega-Millan's plea

at

Noriega-

violation of 18

maximum

term

of

counts, the maximum

The district

joint

court

change-of-plea

hearing at which Noriega-Millan and two of his co-defendants,

each represented by counsel, pleaded guilty.

Noriega-Millan

an

agreement which

entered his guilty plea pursuant to

stipulated

that

the government

would,

among other things, reduce the total offense level from 31 to

28,

and recommend a sentence of 97 months of imprisonment, a

sentence in

months

district

the

of

middle of

imprisonment.

court

recommendation

At

declined

of a

the applicable

to

the

sentence of 108 months,

87-108

sentencing hearing,

accept

97-month term

range of

the

and imposed

the

government's

the maximum

to be served concurrently as

to all

counts of the indictment.

On

appeal, Noriega-Millan

argues that

his guilty

plea should be set aside because, although the district judge

complied with Rule

11(e)(2) of the Federal Rules of Criminal

-22

Procedure by warning him that the court was not

bound by the

government's recommendations, the judge failed, in derogation

of Rule 11(e)(2) and Noriega-Millan's substantial rights,

advise him that

plea

if

the

he would

court

recommendations.

the sentence.

not be permitted

declined

We affirm

to

accept

to withdraw

the

the judgment of

to

his

government's

conviction and

I.
I.

The only issue on

which

Noriega-Millan's

appeal concerns the procedure by

plea

of

guilty

was

entered

and

accepted, as to which the record reveals the following.

Noriega-Millan's

agreement

the

plea

agreement

states that

the

was made pursuant to Rules 11 (e)(1)(A) and (B) of

Federal Rules

of

Criminal Procedure.1

The

agreement

provided that Noriega-Millan would plead guilty to all counts

of the indictment in

to

exchange for the government's agreement

do the following: (i)

three levels

reduce the total

offense level by

from 31 to 28 for acceptance of responsibility;

(ii) recommend a sentence of 97 months of imprisonment, based

upon

an estimated

total offense

level

of 28

and criminal

history category of II, for which the sentencing range is 87-

108 months of imprisonment; and (iii) raise no opposition

to

____________________

1.

Plea agreements made under

subject

to

different

Rules 11(e)(1)(A) and (C) are

procedural

requirements

agreements made under Rule 11(e)(1)(B).

than

are

The Rule 11(e)(1)(A)

portion of Noriega-Millan's agreement is not at issue in this

appeal and will not be discussed.

-33

recommendation of

sentence at

the

lower end

of

the

applicable range, if such a recommendation were to be made by

the United States Probation Office in its Presentence Report.

Prior to the change-of-plea hearing, Noriega-Millan

reviewed the plea agreement with his attorney, at

he initialed each

left margin,

the document.2

page of the document at

the center of the

and signed his name in two places at the end of

Paragraph

six of

the

agreement states

follows:

The

defendant

is

aware

that

the

defendant's sentence is within

the sound

discretion

judge and

will

which time

of

be imposed

the sentencing
in accordance

with the

United
States
Sentencing Guidelines,
_________________________________________
Policy
Statements,
Application,
and
_________________________________________

as

Background Notes.
________________
that

the

Court

The defendant is aware

has

authority to impose

jurisdiction
any sentence

and

within

the statutory maximum set for the offense

to which the defendant pleads guilty.

If

the Court should impose

a sentence up to

the maximum established

by statute,

defendant cannot, for that

withdraw a
bound

guilty plea, and

to fulfill all

the

reason alone,
will remain

of the obligations

under this plea agreement.

Paragraph

Rafael

bound by

ten of the

Noriega Millan is fully

agreement states, "Defendant

aware that the

this plea agreement, including but

Court is not

not limited to:

____________________

2.

The plea agreement contained

in

English; the

however,

transcript of

indicates

that

in the record on

appeal is

the change-of-plea

hearing,

Noriega-Millan

had

understood a Spanish version of the agreement.

read

and

-44

sentencing

guidelines

calculations,

stipulations,

and/or

sentence recommendations."

In

contrast to

plea

agreements made

pursuant to

Rules 11(e)(1)(A) and (C), Rule 11(e)(1)(B) agreements cannot

be withdrawn if

agreement;

once

the court chooses to reject the terms of the

accepted

by

the district

court,

Rule

11(e)(1)(B) agreement "foreclose[s]

other options."

(9th

forever the

defendant's

United States v. Graibe, 946 F.2d 1428, 1432

_____________
______

Cir. 1991).

For

this reason, when

a defendant pleads

guilty pursuant to a Rule 11(e)(1)(B) agreement, the district

judge

is required by

that the

Rule 11(e)(2) to

court is not

advise the defendant

obligated to accept

recommendations and that the

the government's

defendant will not be permitted

to withdraw her guilty plea in

the event that the court does

not follow the government's recommendations.

The

Supreme Court has

Rule 11 proceedings of

by

the

district

determination of

stressed the

importance in

direct interrogation of the defendant

court

in

order

the voluntariness

to

facilitate

of a defendant's

the

guilty

plea.

In

McCarthy v.
________

addition,

defendant's

other

this

court

has repeatedly

acknowledgement

written document

requirement of

See
___

United States, 394 U.S. 459,

_____________

will

of a

United States v.
_____________

stated

signed plea

not substitute

personal examination by

that

the

agreement or

for Rule

the district

Martinez-Martinez, 69 F.3d
_________________

-55

467 (1969).

11's

court.

1215, 1220

(1st Cir. 1995), cert. denied, --- U.S. ---, 116

_____ ______

(1996); United States v. Lopez-Pineda,

_____________
____________

S. Ct. 1343

55 F.3d 693, 696 (1st

Cir.), cert. denied, --- U.S. ---, 116 S. Ct. 259 (1995); see
_____ ______
___

also
____

United States v.
_____________

Kennell, 15 F.3d
_______

134, 136,

137 (9th

Cir. 1994).

A joint change-of-plea hearing was held on July 31,

1995, with Noriega-Millan and two co-defendants present, each

represented

addressed

by

counsel.

himself to all

Although

the

three defendants

judge

sometimes

collectively, he

engaged in individual colloquies with Noriega-Millan and each

co-defendant regarding the following: his competence to plead

guilty;

the voluntariness

understanding of

attending

attorney

the

of

the charges

charges; and

his plea;

against him and

whether

he

regarding the charges and the

judge addressed the

his knowledge

and

the penalties

had consulted

his

plea agreement.

The

defendants collectively regarding

their

awareness and understanding of the constitutional rights they

waived by entering a plea of guilty.

the court

addressed the

although

Noriega-Millan

Throughout the hearing,

defendants through an

sometimes

answered

interpreter,

the

court's

questions in English.

In response to

the court's questioning during

his

individual colloquy, Noriega-Millan acknowledged, inter alia,

_____ ____

that

he had reviewed the plea

agreement with the assistance

of

counsel prior to the

hearing, and that

his attorney had

-66

explained the agreement to

had

that he

read the plea agreement and understood everything in it;

that he was aware

and

him before he signed it;

that

that his criminal history category

the total

offense level

was

28, based

was II

upon the

government's

recommendation of a

offense level

understood that

31 for

acceptance of responsibility;

the sentencing

agreement was 87-108

to

the

three-level reduction from

that he

range specified in

the plea

months of imprisonment; that,

pursuant

plea agreement,

the

government

would recommend

sentence of 97 months of imprisonment; and that he understood

that the government's

recommendations were not

binding upon

the court.

to

each

defendants

with

The district judge gave

the Rule 11(e)(2) warnings

defendant

rather

separately,

collectively.

Noriega-Millan's

During his

co-defendants,

warned each defendant both that

than

to

all

the

individual colloquies

the

district

the court was not

judge

obligated

to accept

the

defendant

would not be permitted to withdraw his plea if the

court

did

not

government's

follow

During his individual

the

the

government's

Noriega-Millan

withdraw

his

plea

and

that

the

recommendations.

colloquy with Noriega-Millan, however,

district judge advised him

bound to follow the

warn

recommendations

only that the

court was not

government's recommendations; he did not

that

in

he

the

would

event

-77

not

be

that

the

permitted

to

government's

recommendations were not followed.

On

sentencing hearing was held at which

as

November

2, 1995,

Noriega-Millan appeared

the sole defendant, again represented by counsel.

sentencing hearing,

district

as at

judge warned that

were not binding upon

Millan that he

the

At the

change-of-plea hearing,

the

the government's recommendations

the court but did not

would not be allowed to

advise Noriega-

withdraw his plea if

the court were to reject the government's recommendations.

After

court

permitting

regarding

rehabilitate

his

himself,

Noriega-Millan

family

the

ties

district

and

to

his

court

address

desire

accepted

the

to

the

government's recommendation regarding

sentence but

rejected its recommendation of

of imprisonment,

maximum term

instead

of 108 months,

to be served

of

a 97-month term

sentencing Noriega-Millan

the sentences imposed on other counts.

no

concurrent service

to

the

concurrently with

Noriega-Millan raised

objection to the sentence and made no attempt to withdraw

his plea in the district court.

This appeal followed.

II.
II.

Federal

which

Rule

of

Criminal Procedure

governs Noriega-Millan's

plea

11(e)(1)(B),

agreement, provides

procedure by which a

defendant may agree to plead

guilty in

exchange

government's

"make

for

the

agreement

recommendation, or agree[ment] not to oppose the

to

defendant's

request,

for a

particular sentence, with

the understanding

-88

that such recommendation or request shall not be binding upon

the court."

Rule 11(e)(2) provides that, before the district

court may accept

11(e)(1)(B)

a guilty

plea entered pursuant

to a

Rule

agreement, "the court shall advise the defendant

that

if the

request the

court

does not

accept

the recommendation

defendant nevertheless has no

or

right to withdraw

the plea."

Noriega-Millan

withdraw his

that

the

asserts

plea prior to

district

recommendation

court

that he

did

not

sentencing because he

would

follow

the

move to

had hoped

government's

of a 97-month sentence, and that he would not

have pleaded guilty had he known that he would not be allowed

to withdraw his plea if the district court did not follow the

government's recommendation.

court's

harmless

failure

to

give

He contends that

this

required

the district

warning

was

not

error because, as a result of the court's error, he

did not understand the consequences

of his guilty plea

and,

therefore,

entered.

his

plea

was

not

knowingly

and

voluntarily

Noriega-Millan raises these arguments for the first

time on appeal.

Ordinarily, we deem an

district

court to

compliance with

was not presented

be waived.

Rule 11, even

in the

issue not raised before the

We will,

however, determine

if a claim

of non-compliance

district court, if

sufficiently developed, which

is generally the

-99

the record

is

case because

of Rule 11(g)'s

complete

Martinez,
________

requirement that the

record

of the

69 F.3d

plea

at 1219

district court make

proceedings.

& n.4;

See
___

Martinez_________

United States
_____________

v. Parra______

Ibanez, 936 F.2d 588, 593 (1st Cir. 1991).3

______

Where, as here, the defendant seeks to withdraw his

plea after he has been sentenced, based

Rule

11 proceedings

that is

alleged to

knowledge of

the consequences of his

is

consistent

entirely

Procedure

11 and 32(e).

with

upon a defect in the

Federal

have

affected his

plea, appellate review

Rules

of

Criminal

First, the harm alleged by Noriega-

Millan is clearly of the type that Rule 11(e)(2) was designed

to alleviate.

See United States v. Theron, 849 F.2d 477, 479

___ _____________
______

(10th Cir. 1988); see also United States v. Padin-Torres, 988

___ ____ _____________
____________

F.2d

280, 283

(1st

Cir. 1993)

(explaining

that "Rule

objections, so far as they affect the 'knowing'

the plea,

are treated

with extra solicitude");

F.2d at 1432 (explaining that

ensure

the

Moreover,

court

"informed

Rule 32(e)

--

character of

Graibe, 946
______

Rule 11(e)(2) was designed

voluntariness"

which provides

of

11

guilty

that the

to

pleas).

district

may permit a defendant to withdraw his guilty plea for

"any fair

and just reason"

before sentence is
______

imposed, but

____________________

3.

If the determination of

compliance with Rule 11 requires

additional fact

finding, "a defendant cannot

direct

but must

appeal,

proceedings under

collaterally

28 U.S.C.

F.3d at 1219 (citing

2255."

attack

seek relief on
the Rule

11

Martinez-Martinez, 69
_________________

Parra-Ibanez, 936 F.2d at 593;

____________

Fed. R.

Crim. P. 32(e)).

-1010

that a defendant who seeks to set aside his guilty plea "[a]t

any later time" may raise the claim "only on direct appeal or

by

motion

defendant

under

28 U.S.C.

2255"

--

plainly allows

who seeks to set aside his plea after sentence has

been imposed to

do so on direct

challenges

validity of

the

appeal, however, "he

succeed only

or she

appeal.

a plea

for

96

F.3d

517, 522

&

time on

hurdle," and

can

was "a substantial

11 proceeding itself."

Miranda-Santiago,
________________

a defendant

the first

faces a high

by demonstrating that there

defect in the Rule

Where

United States v.
______________

nn.8,

9 (1st

Cir.

guilty

plea

1996).4

Because

"simultaneously

McCarthy,
________

defendant

waives

394 U.S.

who

several

at 466,

enters

constitutional

due process

rights,"

requires that

the

defendant's

entry of a guilty plea

and intelligent

relevant

act, "done with sufficient

circumstances

United States,
_____________

be a voluntary, knowing,

and

awareness of the

likely consequences,"

397 U.S. 742, 748

Rule 11 gives effect to this

Brady v.
_____

(1970) (footnote omitted).

principle by requiring district

____________________

4.

Although

Rule 11(h) provides

the procedures required

that "[a]ny

by this rule

variance from

which does not

substantial rights shall be disregarded," the harmless

rule does not necessarily mandate
this

case.

As we

to

set aside a guilty

having

the law in

burden of an appellant who

plea on direct

in

seeks

appeal, without first

brought a motion to withdraw the plea in the district

court, is
at 522

error

the standard of review

have previously acknowledged,

this circuit regarding the

affect

"somewhat cloudy."

n.9 (citing

See
___

Miranda-Santiago, 96 F.3d
________________

Martinez-Martinez, 69 F.3d
_________________

We need not resolve the issue in this case.

at 1219-20).

-1111

courts to follow certain

procedures "designed to ensure that

defendants

enter

guilty

pleas

the

nature

of

who

understanding

of

consequences of their

(citations,

omitted).

internal

plea."

do

the

Lopez-Pineda,
____________

quotation

Compliance with Rule 11's

marks,

so

charge

with

full

and

the

55 F.3d at

695

and

alteration

procedures enables the

district court

the

plea

to determine for itself

and

"facilitates

that

the voluntariness of

determination

in

any

subsequent post-conviction proceeding based upon a claim that

the plea was involuntary."

We determine the

of

the

Id. at 696
___

(citations omitted).

validity of a plea in view

circumstances

surrounding

the

of the totality

Rule

11

hearing.

Miranda-Santiago, 96 F.3d at 522-23 & n.11; United States

________________
_____________

v.

Cotal-Crespo, 47 F.3d 1, 4 (1st Cir.), cert. denied, --- U.S.

____________
_____ ______

---, 116 S. Ct. 94 (1995); Padin-Torres, 988 F.2d at 284.

____________

The

effect of

a failure

to comply

with

Rule 11

depends upon the nature of the failure.

This court has held

that

only for violations

a guilty plea should

be set aside

that implicate the

mere

technical

requirements.

"core concerns"

violations

of

"especially true if the

omission did not affect

1244.

the

See, e.g., Cotal-Crespo,

___ ____ ____________

States v. Allard, 926 F.2d 1237,

______
______

is

of Rule 11

Rule 11's

core

rule's

procedural

1244 (1st Cir. 1991).

his decision."

concerns are

for

47 F.3d at 4; United
______

defendant was not

-1212

and not

misled or the

Allard, 926
______

absence

This

F.2d at

of coercion,

understanding

of

consequences of the

at

the

charges,

and

guilty plea.

4 (citing Allard, 926

______

knowledge

See Cotal-Crespo,
___ ____________

F.2d at 1244-45).

of

the

47 F.3d

In determining

whether the core concerns of Rule 11 have been satisfied, the

court "should not

to

exalt form over substance

the reality of the

but should look

situation as opposed

to the ritual."

Allard, 926 F.2d at 1245.

______

In

claiming

judge's failure to give

warnings,

he

did not

that, as

result

of the

the second of the two

understand

the

district

Rule 11(e)(2)

consequences of

his

guilty plea, Noriega-Millan raises a core concern of Rule 11.

Nonetheless, we cannot

"has

suffered no

set aside a plea

concrete prejudice

plea he now regrets."

31 (1st Cir. 1992).

the circumstances,

where the appellant

other than

entering a

United States v. Zorilla, 982 F.2d 28,

_____________
_______

We find that, in view of the totality of

the

district court's

failure to

advise

Noriega-Millan that he would not be permitted to withdraw his

plea

did

not amount

proceedings and

to a

substantial

whether the defendant would have

known

that

substantially

the plea

did not, as Noriega-Millan claims, adversely

affect his substantial rights.

he

defect in

there

was

"The heart of

the matter

is

entered the guilty plea had

probability

greater sentence than

of

receiving

that recommended in the

plea agreement."

F.2d at

Kennell, 15
_______

F.3d at 136.

1244; United States v.

______________

See
___

Allard, 926
______

Diaz-Vargas, 35 F.3d
___________

1221,

-1313

1224 (7th Cir. 1994);

1535

(10th Cir.

United States v. Vaughn, 7

_____________
______

1993).

The

record reveals,

F.3d 1533,

and Noriega-

Millan does

not dispute, that the

warned him that

government's

ensured

the court

sentencing

was not obligated

recommendations,

that Noriega-Millan

government had

district judge personally

understood

agreed to recommend a

and

these facts and

the

personally

that, although

the

97-month sentence, the

maximum sentence that the court could impose

Given

to follow

was 108 months.

Noriega-Millan's willingness to plead

guilty

in exchange for a

highly

unlikely that,

97-month sentence, it

properly warned

of his

seems to us

inability to

withdraw his guilty plea once it was accepted, Noriega-Millan

would

have

chosen

possibility that

eleven

months

sentence.

to go

to

trial

rather

the district court might

longer

than

We conclude that

the

than risk

the

impose a sentence

government's

recommended

the district court's failure to

warn Noriega-Millan of his inability to withdraw his plea did

not affect his decision to plead guilty.

Our conclusion is

in

which

11(e)(2) to

we

found

the

be satisfied

explicitly inform

supported by

Martinez-Martinez,
_________________

advisement

requirements

where the

district judge

the defendant that she

of

Rule

did not

could not withdraw

her guilty plea, but where the court "personally ensured that

[the

defendant] understood

[government's]

the

recommendation."

-1414

non-binding nature

69 F.3d

of

at 1223-24.

the

Our

view is also supported by similar

which

found

the

district

cases from other circuits,

court's failure

to

advise

the

defendant that he would not be permitted to withdraw his plea

to be harmless error.

1562, 1574-76

117

S. Ct.

See United States v. McCarthy, 97 F.3d

___ _____________
________

(8th Cir. 1996),

1011

(1997); Diaz-Vargas,
___________

United States v. Thibodeaux,

______________
__________

1987);

cert. denied, --_____ ______

United States v. de

811

35 F.3d

F.2d 847,

le Puente, 755

U.S. ---,

at 1224-25;

848 (5th

Cir.

F.2d 313, 314-15

_____________

_____________

(3d Cir. 1985).

Noriega-Millan

disagrees

with

Martinez-Martinez.
_________________

He argues that the proposition that the court is not bound by

the government's

the proposition

recommendations is logically

that the

the court declines to

notice

of

the

defendant of the

court

defendant is nonetheless

proposition

does

not

inform

the

latter proposition; nor does it relieve the

of its responsibility

665, 669

bound if

accept those recommendations, and that

former

latter proposition.

F.2d

distinct from

to inform the

defendant of the

See, e.g., United States v. Zickert, 955

___ ____ _____________
_______

(11th Cir.

United States v. Iaquinta,

_____________
________

1992); Theron,
______

849 F.2d

719 F.2d 83, 85 (4th

at 481;

Cir. 1983).

Noriega-Millan

contends,

warnings relate

in

to different

other

words,

issues and that

that

the

two

Rule 11(e)(2)

requires the district court to give both warnings.

This

Indeed, a

argument

number

of

is

not

courts have

-1515

without

held

logic

that

the

or

force.

district

court's failure to

withdraw

his

warn the

guilty

constitutes reversible

warning

that

it

recommendation is

See
___

United States
_____________

defendant of

plea

once

it

has

error, and that

was

not

bound

his inability

been

to

accepted

the district court's

by

the

government's

insufficient to render the error harmless.

v. DeBusk,
______

976 F.2d

300, 307

(6th Cir.

1992); Zickert, 955 F.2d at 668-69; United States v. Ferrara,

_______
_____________
_______

954 F.2d 103,

107-108 (2d

Cir. 1992); Graibe,

______

946 F.2d

at

1434-35; Theron, 849 F.2d at 481; Iaquinta, 719 F.2d at 85.

______
________

We

no inflexible

warning

as to

ourselves read Martinez-Martinez as laying down

_________________

rule but

the

as considering the

non-binding nature

district court's

of the

government's

recommendations to

be an

element in the

bears on the determination of

warn the defendant of

harmless error.

district

whether the court's failure to

her inability to withdraw the

plea is

For the reasons we have stated, we find the

court's

error

therefore we reject

should

circumstances that

to

be harmless

in

this

case and

Noriega-Millan's argument that

his plea

be set aside for the district court's failure to warn

him that he would not be permitted to

it had been accepted.

withdraw his plea once

Martinez-Martinez, 69 F.3d at 1223-24.

_________________

III.
III.

For

the

foregoing

reasons,

conviction and sentence are affirmed.

affirmed

the

judgment

of

________

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