USCA1 Opinion

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

_________________________

No. 97-1176

UNITED STATES OF AMERICA,

Appellee,

v.

MANUEL CABRERA-ROSARIO,

Defendant, Appellant.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

___________________

_________________________

Before

Selya, Circuit Judge,

_____________

Campbell, Senior Circuit Judge,

____________________

and Lynch, Circuit Judge.

_____________

_________________________

Juan P. Rivera Rom n on brief for appellant.

____________________
Guillermo Gil,
______________

United

States Attorney,

Jos
A. Quiles_________________

Espinosa, Senior Litigation Counsel, and Aixa Maldonado-Qui ones,

________
_______________________
Assistant United States Attorney, on brief for appellee.

__________________________

October 17, 1997

__________________________

SELYA,
SELYA,

Circuit
Circuit

Judge.
Judge.

Defendant-appellant

Manuel

______________

Cabrera-Rosario (Cabrera) invites

set aside his guilty plea.

us to vacate his

sentence and

For the reasons elucidated

below, we

decline the invitation.

I.
I.

BACKGROUND
BACKGROUND

A grand jury

returned a two-count

charged

that Cabrera,

and/or possessed

in

commerce in

(1994).

sitting in

the District

of Puerto

indictment against the appellant.

convicted

felon,

a number of firearms that

violation

of

18 U.S.C.

knowingly

Rico

Count 1

received

had been transported

922(g) and

924(e)

Count 2 charged him with obliterating the manufacturer's

serial numbers on two of these weapons

in violation of 18 U.S.C.

The

both Cobray machine guns

922(k) & (o) (1994).

appellant originally pleaded

not guilty.

On May

28,

1996, he

Cooperation

changed course

and

signed a

Agreement (the Agreement)

and conditions

appertaining to a

so-called Plea

that set forth

and

the terms

nonbinding plea bargain.

See
___

Fed. R. Crim. P. 11(e)(1)(B).

The Agreement

the appellant

each page

and his attorney

Cabrera cooperated

fully and

of which was

initialled by

provided, inter alia,

truthfully,

that if

the government

would

stipulate

to a particular set of guideline calculations designed

to yield

a guideline sentencing range (GSR) of 188 to 235 months

(adjusted offense level

clearly indicated

stipulation,

"the

31; criminal history

Cabrera's awareness that,

defendant's

sentence

is

category VI).

It

notwithstanding the

within

the

sound

discretion of the sentencing judge," Agreement,

6; and that, if

the court were to impose a sentence in excess of 235 months, "the

defendant

guilty

[could] not,

plea,"

id.
___

government, unless

5K1.1

(1995)

for that

The

Agreement

it moved for

a matter

reason

alone, withdraw

also

implied

that

a downward departure,

left wholly

within its

[his]

the

see USSG
___

discretion

would recommend

that the

court impose a

sentence within

those

parameters.

Cabrera thereupon completed a 13-page Petition to Enter

a Plea

of Guilty (the

message contained

Petition) that reinforced

in the Agreement.

extensive questionnaire.

The

the sentencing

Petition included

an

In addition to answering the questions,

Cabrera initialled each of the 13 pages, as did his attorney.

A change-of-plea hearing

the appellant the purpose of the

at some length.

to direct

all

13

counsel;

and

Judge

Casellas told

proceeding and interrogated him

The appellant stated unequivocally, in response

questions, that he

pages;

ensued.

that

that

he

he

had read and

had

conferred

understood

accepted, would effectively

that

completed truthfully

sufficiently

his

waive a long list

guilty

with his

plea,

if

of constitutional

rights.

Judge

Casellas

then

requested

summarize the terms of the Agreement.1

the

prosecutor

to

The court made it crystal

____________________

1The

prosecutor's summary was

but he misstated
months.
the

Given

accurate for the

most part,

the projected GSR, describing it as

188 to 208

the express provisions of both

Petition, and

the fact

vouchsafed the prosecutor's

no

decretory significance

moreover, that

that the

the Agreement and

appellant and

summary of the Agreement,

to

this lapsus
______

linguae.
_______

the presentence investigation report,

his lawyer

we attach
We

note,

which both

clear

that

the sentence

to

be

imposed

discretion,

subject only

to

the

was within

limits set

by

its

law, and

sole

the

appellant acknowledged that he understood as much.

Judge Casellas then reviewed the allegations of count 1

with

the appellant

penalty.

and

informed him

of

the maximum

possible

However, the judge failed to mention that the appellant

could not withdraw his

guilty plea if the

court decided not

to

follow the sentencing recommendation contained in the Agreement.

The district court convened

December

confirmed

3,

1996.

At the

that both he and his

outset,

the disposition hearing on

the

appellant's

client had read and reviewed the

presentence investigation report, that the report

and

"fair-minded,"

and

that

counsel

they

had

no

was "accurate"

objection

to

its

contents.

In

his

allocution,

court's forgiveness.

more

For its

the

appellant

part, the

importuned

government did

the

little

than stand by the Agreement and the sentencing calculations

contained therein.

In

accepted

pronouncing

sentence,

the parties' earlier

Judge

in

effect

stipulation, determining that the

applicable GSR was 188 to 235 months.

He sentenced the appellant

at the apex of the range, but within it.

II.
II.

Casellas

This appeal ensued.

ANALYSIS
ANALYSIS

The

appellant's central thesis is that his guilty plea

was involuntary because

he was unaware of its

consequences.

He

____________________

the appellant and

his attorney read and pronounced "accurate" in

advance of sentencing, tracked the

Agreement and the Petition in

describing the GSR as 188 to 235 months.

supports this

thesis in

two ways.

First, he

claims that

the

presiding judge failed to warn him that he could not withdraw his

guilty plea

if the judge

sentencing

recommendation.

decided not to adopt

Second,

government breached the Agreement.

the government's

he asseverates

that

the

We turn first to the question

of appealability and then consider the appellant's arguments.

A.
A.

Appealability.
Appealability.
_____________

Rule 11 exists as a means of safeguarding the fairness,

integrity,

and public reputation

of judicial proceedings.

See
___

United States v. Parra-Ibanez, 936 F.2d 588, 593 (1st Cir. 1991).
_____________
____________

Among

other

things, the

rule

is

intended

to ensure

that

defendant who pleads guilty does so with an "understanding of the

nature of the charge and the consequences of his plea."

v. United States, 394

______________

U.S.

importance of the interests

will entertain on

the

essence of the

court.

459, 467

(1969).

Because of

that Rule 11 protects,

direct appeal a Rule 11

challenge was not

McCarthy
________

the

we sometimes

challenge even though

raised in the

nisi prius

See, e.g., United States v. McDonald, 121 F.3d 7, 10 (1st

___ ____ _____________
________

Cir. 1997); Parra-Ibanez, 936 F.2d at 593.

____________

B.
B.

Fed. R. Crim.

respect to

This is such a case.

The Plea Colloquy.

The Plea Colloquy.
_________________

P. 11(e)(2) specifically

nonbinding plea

agreements,2 that

provides, with

"the court

shall

____________________

2The plea agreement at issue here is of this stripe, drawing

its essence
prosecutor

from

Fed. R.

effectively

sentencing (i.e., not

Crim.

agreed

P. 11(e)(1)(B).
to

take

In

position

opposing a sentence within

it,

the

vis- -vis

the stipulated

GSR), with the understanding that this "recommendation" would not

bind the court.

advise

the defendant

that

if

the court

does

not accept

the

[sentencing] recommendation or request the defendant nevertheless

has

no

right to

withdraw

the plea."

In this

district judge conducted a painstaking Rule 11

he inquired about the

instance, the

colloquy in which

Agreement and reminded the appellant

that

the government's sentencing recommendation was not binding on the

court.

There was,

however, a flaw:

the judge

never told the

appellant explicitly that he would be unable to withdraw his plea

should

the court

disposition.

fail

to

act in

accordance

with the

agreed

Notwithstanding the importance of the prophylaxis

Rule

11

prescribes,

the

detection

of

an

error

necessarily require vacation of a defendant's plea.

of

Rule

11

procedures

made

required

substantial rights

11(h).

core

pellucid

by

this

shall

in context,

that

"any

rule

which

be disregarded."

Under this proviso,

concerns will

error,

it

does

not

The drafters

variance

does

from

not

Fed. R.

the

affect

Crim.

P.

"even an error implicating Rule 11's

not require

is harmless."

Thus, the question before us

that

vacating a

guilty plea

McDonald, 121
________

if the

F.3d at

11.

reduces to the harmlessness vel non

___ ___

of the judge's omission.3

____________________

3When a defendant moves in the district court to withdraw an

earlier guilty

plea, we

customarily test

the district

court's

resolution of

that motion through

United States v.
_____________

a multi-faceted format.

Gonzalez-Vazquez, 34 F.3d
________________

1994); United States v. Parrilla-Tirado,

______________
_______________
Cir. 1994).

We occasionally

19, 22-23 (1st

22 F.3d 368,

have utilized this same

See
___

Cir.

371 (1st

method of

analysis in cases in which a defendant alleges for the first time

on appeal that the sentencing court violated Rule 11.

See, e.g.,
___ ____

United States v. Lopez-Pineda, 55 F.3d 693, 696 (1st Cir.), cert.

_____________
____________
_____

To

be sure,

due

process

demands that

plea in

criminal case "be made voluntarily, knowingly, intelligently, and

with

an

awareness

consequences."

n.5 (1969)).

of the

overall

Id. (citing Boykin

___
______

In failing to

circumstances

v. Alabama, 395 U.S. 238, 243

_______

apprise the appellant of one of

consequences that would flow from the

prosecutor's

sentencing

blemished an

otherwise impeccable

11, and precipitated

and probable

court's disapproval of the

recommendation,

a due process

the

district

court

plea colloquy, violated

challenge.

Rule

Nonetheless,

the idiosyncratic circumstances

of this case, the

did not

substantial rights.

impair the appellant's

the

in

court's error

We explain

briefly.

In

evaluating

incipient

Rule 11

violations,

courts

should focus on the reality of events as reflected by

the record

and take

See United
___ ______

care not

to elevate form

over substance.

States v. Noriega-Mill n, 110 F.3d 162, 167 (1st Cir. 1997).

______
______________

For

purposes of this appeal, the pivotal datum is that the court

did

not abandon the prosecutor's recommendation, but, rather, imposed

a sentence of 235 months.

within,

This sentence fell at the apex of, but

the agreed sentencing range.

have served

to inform the

The omitted warning would

appellant of the consequences

of his

plea should the court impose a sentence outside the agreed range;
_______

that warning

would not

have added to

the appellant's

store of

____________________

denied,
______

116

S.

Ct.

259 (1995).

The

diagnostic aid, not an obligatory ritual.

at

10

n.2.

Here,

harmlessness of that

both

the

trial

multi-part

is a

See McDonald, 121 F.3d

___ ________
court's

error

error are manifest; consequently,

no need to resort to the multi-part test.

test

and

the

there is

knowledge if

the court imposed a

sentence actually

former.

imposed fell in

It follows

sentence within the

______

the latter category,

inexorably that,

which the court failed to

court's error was benign.

GSR.

The

not the

since the contingency

of

apprise the appellant never arose, the

See, e.g., McDonald, 121 F.3d

___ ____ ________

United States v. Chan, 97 F.3d 1582, 1584 (9th Cir. 1996).

_____________
____

at 11;

This conclusion is

before us.

The record

especially compelling on

offers every indication that, despite the

court's lapse, the appellant had actual knowledge of the

fact.

Indeed,

he acknowledged

Petition, and the

the facts

as much

questionnaire that

in the

omitted

Agreement, the

accompanied the

Petition.

Since there is no reasonable likelihood that the court's omission

affected the appellant's

of

harmlessness is

willingness to plead guilty,

appropriate.

1584; United States v. McCarthy,

_____________
________

1996);

See, e.g.,
___ ____

Chan, 97
____

a finding

F.3d at

97 F.3d 1562, 1575-76 (8th Cir.

United States v. Martinez-Martinez, 69 F.3d 1215, 1223-24

_____________
_________________

(1st Cir. 1995).

C.
C.

The Plea Agreement.

The Plea Agreement.
__________________

In

the

his remaining argument,

government

cooperation.

for his

have

done

also asserts that

guilty plea, agreed

yet failed

hearing.

He

should

the appellant asserts that

more

to

highlight

the government, in

to drop count 2

his

exchange

of the indictment,

to mention that count to the judge at the disposition

These assertions are not persuasive.

Passing

appellant's

the

very

real

question

of

assertions are procedurally defaulted

whether

the

a claim that

a prosecutor breached

a plea agreement ordinarily

debut in the district court, see

___

9, 11 (1st

1988), and the assertions in

for the first time in this venue

did not require

court

cooperation.

the

United States v. Clark, 55 F.3d

_____________
_____

Cir. 1995); United States v. Giorgi, 840

______________
______

1028 (1st Cir.

district

must make its

question are raised

it is plain that the Agreement

the United States to dwell

regarding

the

Without an explicit

agreement itself,

there is

F.2d 1022,

extent

in detail before the

of

the

appellant's

commitment to that

no breach.

See,
___

effect in

e.g., United
____ ______

States v. Guzman, 85 F.3d 823, 829 (1st Cir. 1996); United States
______
______
_____________

v. Hogan, 862
_____

F.2d 386, 388 (1st Cir. 1988).

This is especially

true where, as here, the Agreement contains an integration clause

that

expressly

disavows

commitments

not

set

forth

in

the

Agreement's text.4

Insofar as count

2 is concerned,

that the district court docket

the short answer

is

shows that the prosecutor filed a

written motion to dismiss that count on the day of sentencing and

the court granted the motion.

That ends the matter:

fact that the prosecutor did not mention count

presentation

at the disposition hearing, the

despite the

2 during his oral

count is no longer

____________________

4Paragraph 23 of the Agreement reads as follows:

This

written

complete
States,

agreement

Plea Agreement
the defendant,

constitutes
between the

and the

the

United

defendant's

counsel.
promises

The
or

United

has

made

no

as

set

this plea agreement

and

representations except

forth in writing in
deny

States

[sic] the existence

of any

other term

and conditions not stated herein.

zoetic and, therefore, the appellant received the full benefit of

his bargain.

III.
III.

CONCLUSION
CONCLUSION

We need go

no further.

The purpose

of insisting that

the judge inform a defendant that

withdraw his guilty

sentencing

induced

to change

that

materialized.

harm

or

court eschews the

his plea

That purpose

occurred

without being

prosecutor's

was not in any way

here

since

the

Thus, because the district

prejudice

aware of

the appellant,

and

a relevant

frustrated by the

contingency

never

court's bevue did not

because

abided by its Agreement, the appeal implodes.

Affirmed.
Affirmed.
________

to

recommendation is to ensure that the defendant is not

contingency.

omission

plea if the

he will not have the right

the government

10