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, United ______________________ _____________
States Attorney, Jos A. Quiles-Espinosa, Senior Litigation Counsel, _______________________
and Antonio R. Baz n, Assistant United States Attorney, were on brief ________________
for appellee.
____________________
April 7, 1997
____________________
BOWNES, Senior Circuit Judge. Defendant-appellant BOWNES, Senior Circuit Judge. ____________________
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 laws. Count nine, charging Noriega-
Millan with possession of a machine gun in violation of 18
U.S.C. 922(o), carried a ten-year maximum term of
imprisonment. For each of the remaining counts, the maximum
term of imprisonment was five years. The district court
accepted Noriega-Millan's plea at a joint change-of-plea
hearing at which Noriega-Millan and two of his co-defendants,
each represented by counsel, pleaded guilty.
Noriega-Millan entered his guilty plea pursuant to
an agreement which 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 the middle of the applicable range of 87-108
months of imprisonment. At the sentencing hearing, the
district court declined to accept the government's
recommendation of a 97-month term and imposed the maximum
sentence of 108 months, 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
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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, to
advise him that he would not be permitted to withdraw his
plea if the court declined to accept the government's
recommendations. We affirm the judgment of conviction and
the sentence.
I. I.
The only issue on appeal concerns the procedure by
which Noriega-Millan's plea of guilty was entered and
accepted, as to which the record reveals the following.
Noriega-Millan's plea agreement states that the
agreement was made pursuant to Rules 11 (e)(1)(A) and (B) of
the Federal Rules of Criminal Procedure.1 The agreement
provided that Noriega-Millan would plead guilty to all counts
of the indictment in exchange for the government's agreement
to do the following: (i) reduce the total offense level by
three levels 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 Rules 11(e)(1)(A) and (C) are
subject to different procedural requirements than are
agreements made under Rule 11(e)(1)(B). The Rule 11(e)(1)(A)
portion of Noriega-Millan's agreement is not at issue in this
appeal and will not be discussed.
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a recommendation of a 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 which time
he initialed each page of the document at the center of the
left margin, and signed his name in two places at the end of
the document.2 Paragraph six of the agreement states as
follows:
The defendant is aware that the
defendant's sentence is within the sound
discretion of the sentencing judge and
will be imposed in accordance with the
United States Sentencing Guidelines, _________________________________________
Policy Statements, Application, and _________________________________________
Background Notes. The defendant is aware ________________
that the Court has jurisdiction and
authority to impose any sentence 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, the
defendant cannot, for that reason alone,
withdraw a guilty plea, and will remain
bound to fulfill all of the obligations
under this plea agreement.
Paragraph ten of the agreement states, "Defendant
Rafael Noriega Millan is fully aware that the Court is not
bound by this plea agreement, including but not limited to:
____________________
2. The plea agreement contained in the record on appeal is
in English; the transcript of the change-of-plea hearing,
however, indicates that Noriega-Millan had read and
understood a Spanish version of the agreement.
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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 the court chooses to reject the terms of the
agreement; once accepted by the district court, a Rule
11(e)(1)(B) agreement "foreclose[s] forever the defendant's
other options." United States v. Graibe, 946 F.2d 1428, 1432 _____________ ______
(9th 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 Rule 11(e)(2) to advise the defendant
that the court is not obligated to accept the government's
recommendations and that the 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 stressed the importance in
Rule 11 proceedings of direct interrogation of the defendant
by the district court in order to facilitate the
determination of the voluntariness of a defendant's guilty
plea. McCarthy v. United States, 394 U.S. 459, 467 (1969). ________ _____________
In addition, this court has repeatedly stated that the
defendant's acknowledgement of a signed plea agreement or
other written document will not substitute for Rule 11's
requirement of personal examination by the district court.
See United States v. Martinez-Martinez, 69 F.3d 1215, 1220 ___ _____________ _________________
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(1st Cir. 1995), cert. denied, --- U.S. ---, 116 S. Ct. 1343 _____ ______
(1996); United States v. Lopez-Pineda, 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 by counsel. Although the judge sometimes
addressed himself to all three defendants collectively, he
engaged in individual colloquies with Noriega-Millan and each
co-defendant regarding the following: his competence to plead
guilty; the voluntariness of his plea; his knowledge and
understanding of the charges against him and the penalties
attending the charges; and whether he had consulted his
attorney regarding the charges and the plea agreement. The
judge addressed the defendants collectively regarding their
awareness and understanding of the constitutional rights they
waived by entering a plea of guilty. Throughout the hearing,
the court addressed the defendants through an interpreter,
although Noriega-Millan sometimes answered 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
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explained the agreement to him before he signed it; that he
had read the plea agreement and understood everything in it;
that he was aware that his criminal history category was II
and that the total offense level was 28, based upon the
government's recommendation of a three-level reduction from
offense level 31 for acceptance of responsibility; that he
understood that the sentencing range specified in the plea
agreement was 87-108 months of imprisonment; that, pursuant
to the plea agreement, the government would recommend a
sentence of 97 months of imprisonment; and that he understood
that the government's recommendations were not binding upon
the court.
The district judge gave the Rule 11(e)(2) warnings
to each defendant separately, rather than to all the
defendants collectively. During his individual colloquies
with Noriega-Millan's co-defendants, the district judge
warned each defendant both that the court was not obligated
to accept the government's recommendations and that the
defendant would not be permitted to withdraw his plea if the
court did not follow the government's recommendations.
During his individual colloquy with Noriega-Millan, however,
the district judge advised him only that the court was not
bound to follow the government's recommendations; he did not
warn Noriega-Millan that he would not be permitted to
withdraw his plea in the event that the government's
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recommendations were not followed. On November 2, 1995, a
sentencing hearing was held at which Noriega-Millan appeared
as the sole defendant, again represented by counsel. At the
sentencing hearing, as at the change-of-plea hearing, the
district judge warned that the government's recommendations
were not binding upon the court but did not advise Noriega-
Millan that he would not be allowed to withdraw his plea if
the court were to reject the government's recommendations.
After permitting Noriega-Millan to address the
court regarding his family ties and his desire to
rehabilitate himself, the district court accepted the
government's recommendation regarding concurrent service of
sentence but rejected its recommendation of a 97-month term
of imprisonment, instead sentencing Noriega-Millan to the
maximum term of 108 months, to be served concurrently with
the sentences imposed on other counts. Noriega-Millan raised
no objection to the sentence and made no attempt to withdraw
his plea in the district court. This appeal followed.
II. II.
Federal Rule of Criminal Procedure 11(e)(1)(B),
which governs Noriega-Millan's plea agreement, provides a
procedure by which a defendant may agree to plead guilty in
exchange for the government's agreement to "make a
recommendation, or agree[ment] not to oppose the defendant's
request, for a particular sentence, with the understanding
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that such recommendation or request shall not be binding upon
the court." Rule 11(e)(2) provides that, before the district
court may accept a guilty plea entered pursuant to a Rule
11(e)(1)(B) agreement, "the court shall advise the defendant
that if the court does not accept the recommendation or
request the defendant nevertheless has no right to withdraw
the plea."
Noriega-Millan asserts that he did not move to
withdraw his plea prior to sentencing because he had hoped
that the district court would follow the government's
recommendation 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. He contends that the district
court's failure to give this required warning was not
harmless error because, as a result of the court's error, he
did not understand the consequences of his guilty plea and,
therefore, his plea was not knowingly and voluntarily
entered. Noriega-Millan raises these arguments for the first
time on appeal.
Ordinarily, we deem an issue not raised before the
district court to be waived. We will, however, determine
compliance with Rule 11, even if a claim of non-compliance
was not presented in the district court, if the record is
sufficiently developed, which is generally the case because
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of Rule 11(g)'s requirement that the district court make a
complete record of the plea proceedings. See Martinez- ___ _________
Martinez, 69 F.3d at 1219 & n.4; 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 upon a defect in the
Rule 11 proceedings that is alleged to have affected his
knowledge of the consequences of his plea, appellate review
is entirely consistent with Federal Rules of Criminal
Procedure 11 and 32(e). 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 11
objections, so far as they affect the 'knowing' character of
the plea, are treated with extra solicitude"); Graibe, 946 ______
F.2d at 1432 (explaining that Rule 11(e)(2) was designed to
ensure the "informed voluntariness" of guilty pleas).
Moreover, Rule 32(e) -- which provides that the district
court 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 seek relief on
direct appeal, but must collaterally attack the Rule 11
proceedings under 28 U.S.C. 2255." Martinez-Martinez, 69 _________________
F.3d at 1219 (citing Parra-Ibanez, 936 F.2d at 593; Fed. R. ____________
Crim. P. 32(e)).
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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 under 28 U.S.C. 2255" -- plainly allows a
defendant who seeks to set aside his plea after sentence has
been imposed to do so on direct appeal. Where a defendant
challenges the validity of a plea for the first time on
appeal, however, "he or she faces a high hurdle," and can
succeed only by demonstrating that there was "a substantial
defect in the Rule 11 proceeding itself." United States v. ______________
Miranda-Santiago, 96 F.3d 517, 522 & nn.8, 9 (1st Cir. ________________
1996).4
Because a defendant who enters a guilty plea
"simultaneously waives several constitutional rights,"
McCarthy, 394 U.S. at 466, due process requires that the ________
defendant's entry of a guilty plea be a voluntary, knowing,
and intelligent act, "done with sufficient awareness of the
relevant circumstances and likely consequences," Brady v. _____
United States, 397 U.S. 742, 748 (1970) (footnote omitted). _____________
Rule 11 gives effect to this principle by requiring district
____________________
4. Although Rule 11(h) provides that "[a]ny variance from
the procedures required by this rule which does not affect
substantial rights shall be disregarded," the harmless error
rule does not necessarily mandate the standard of review in
this case. As we have previously acknowledged, the law in
this circuit regarding the burden of an appellant who seeks
to set aside a guilty plea on direct appeal, without first
having brought a motion to withdraw the plea in the district
court, is "somewhat cloudy." See Miranda-Santiago, 96 F.3d ___ ________________
at 522 n.9 (citing Martinez-Martinez, 69 F.3d at 1219-20). _________________
We need not resolve the issue in this case.
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courts to follow certain procedures "designed to ensure that
defendants who enter guilty pleas do so with full
understanding of the nature of the charge and the
consequences of their plea." Lopez-Pineda, 55 F.3d at 695 ____________
(citations, internal quotation marks, and alteration
omitted). Compliance with Rule 11's procedures enables the
district court to determine for itself the voluntariness of
the plea and "facilitates that determination in any
subsequent post-conviction proceeding based upon a claim that
the plea was involuntary." Id. at 696 (citations omitted). ___
We determine the validity of a plea in view of the totality
of the circumstances surrounding the 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 a guilty plea should be set aside only for violations
that implicate the "core concerns" of Rule 11 and not for
mere technical violations of the rule's procedural
requirements. See, e.g., Cotal-Crespo, 47 F.3d at 4; United ___ ____ ____________ ______
States v. Allard, 926 F.2d 1237, 1244 (1st Cir. 1991). This ______ ______
is "especially true if the defendant was not misled or the
omission did not affect his decision." Allard, 926 F.2d at ______
1244. Rule 11's core concerns are absence of coercion,
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understanding of the charges, and knowledge of the
consequences of the guilty plea. See Cotal-Crespo, 47 F.3d ___ ____________
at 4 (citing Allard, 926 F.2d at 1244-45). In determining ______
whether the core concerns of Rule 11 have been satisfied, the
court "should not exalt form over substance but should look
to the reality of the situation as opposed to the ritual."
Allard, 926 F.2d at 1245. ______
In claiming that, as a result of the district
judge's failure to give the second of the two Rule 11(e)(2)
warnings, he did not understand the consequences of his
guilty plea, Noriega-Millan raises a core concern of Rule 11.
Nonetheless, we cannot set aside a plea where the appellant
"has suffered no concrete prejudice other than entering a
plea he now regrets." United States v. Zorilla, 982 F.2d 28, _____________ _______
31 (1st Cir. 1992). We find that, in view of the totality of
the circumstances, the district court's failure to advise
Noriega-Millan that he would not be permitted to withdraw his
plea did not amount to a substantial defect in the plea
proceedings and did not, as Noriega-Millan claims, adversely
affect his substantial rights. "The heart of the matter is
whether the defendant would have entered the guilty plea had
he known that there was a probability of receiving a
substantially greater sentence than that recommended in the
plea agreement." Kennell, 15 F.3d at 136. See Allard, 926 _______ ___ ______
F.2d at 1244; United States v. Diaz-Vargas, 35 F.3d 1221, ______________ ___________
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1224 (7th Cir. 1994); United States v. Vaughn, 7 F.3d 1533, _____________ ______
1535 (10th Cir. 1993). The record reveals, and Noriega-
Millan does not dispute, that the district judge personally
warned him that the court was not obligated to follow the
government's sentencing recommendations, and personally
ensured that Noriega-Millan understood that, although the
government had agreed to recommend a 97-month sentence, the
maximum sentence that the court could impose was 108 months.
Given these facts and Noriega-Millan's willingness to plead
guilty in exchange for a 97-month sentence, it seems to us
highly unlikely that, properly warned of his inability to
withdraw his guilty plea once it was accepted, Noriega-Millan
would have chosen to go to trial rather than risk the
possibility that the district court might impose a sentence
eleven months longer than the government's recommended
sentence. We conclude that 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 supported by Martinez-Martinez, _________________
in which we found the advisement requirements of Rule
11(e)(2) to be satisfied where the district judge did not
explicitly inform the defendant that she could not withdraw
her guilty plea, but where the court "personally ensured that
[the defendant] understood the non-binding nature of the
[government's] recommendation." 69 F.3d at 1223-24. Our
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view is also supported by similar cases from other circuits,
which found the district court's failure to advise the
defendant that he would not be permitted to withdraw his plea
to be harmless error. See United States v. McCarthy, 97 F.3d ___ _____________ ________
1562, 1574-76 (8th Cir. 1996), cert. denied, --- U.S. ---, _____ ______
117 S. Ct. 1011 (1997); Diaz-Vargas, 35 F.3d at 1224-25; ___________
United States v. Thibodeaux, 811 F.2d 847, 848 (5th Cir. ______________ __________
1987); United States v. de le Puente, 755 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 recommendations is logically distinct from
the proposition that the defendant is nonetheless bound if
the court declines to accept those recommendations, and that
notice of the former proposition does not inform the
defendant of the latter proposition; nor does it relieve the
court of its responsibility to inform the defendant of the
latter proposition. See, e.g., United States v. Zickert, 955 ___ ____ _____________ _______
F.2d 665, 669 (11th Cir. 1992); Theron, 849 F.2d at 481; ______
United States v. Iaquinta, 719 F.2d 83, 85 (4th Cir. 1983). _____________ ________
Noriega-Millan contends, in other words, that the two
warnings relate to different issues and that Rule 11(e)(2)
requires the district court to give both warnings.
This argument is not without logic or force.
Indeed, a number of courts have held that the district
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court's failure to warn the defendant of his inability to
withdraw his guilty plea once it has been accepted
constitutes reversible error, and that the district court's
warning that it was not bound by the government's
recommendation is insufficient to render the error harmless.
See United States 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 ourselves read Martinez-Martinez as laying down _________________
no inflexible rule but as considering the district court's
warning as to the non-binding nature of the government's
recommendations to be an element in the circumstances that
bears on the determination of whether the court's failure to
warn the defendant of her inability to withdraw the plea is
harmless error. For the reasons we have stated, we find the
district court's error to be harmless in this case and
therefore we reject Noriega-Millan's argument that his plea
should be set aside for the district court's failure to warn
him that he would not be permitted to withdraw his plea once
it had been accepted. Martinez-Martinez, 69 F.3d at 1223-24. _________________
III. III.
For the foregoing reasons, the judgment of
conviction and sentence are affirmed. affirmed ________
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