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Berrio Callejas v. United States, 219 F.3d 1, 1st Cir. (2000)
Berrio Callejas v. United States, 219 F.3d 1, 1st Cir. (2000)
2000)
Like many before it, this appeal involves various violations of Federal Rule of
Criminal Procedure 11(c) & (d).1 Nevertheless, appellant has not demonstrated
a total failure to comply with a "core" Rule 11 concern and, after assessing the
errors committed by the district court, we are satisfied that they are harmless or,
in one instance, conspicuously waived on this appeal. See, e.g., United States v.
Cotal-Crespo, 47 F.3d 1, 4-5 (1st Cir. 1995); United States v. Allard, 926 F.2d
1237, 1244-45 (1st Cir. 1991); see also Fed. R. Crim. P. 11(h).
Appellant was charged by information, in the United States District Court for
Appellant first contends that he did not know that the scheduled airline flight
from Colombia to Spain, where he was to have delivered the cocaine, would
land in Puerto Rico en route. See Fed. R. Crim. P. 11(c)(1) (mandating that
district court inform defendant of "the nature of the charge to which the [guilty]
plea is offered"). Although the Rule 11 colloquy conducted below in no sense
foreclosed it, the present contention inevitably fails since it misapprehends the
controlling law. See, e.g., United States v. McKenzie, 818 F.2d 115, 118-19
(1st Cir. 1987) (upholding conviction under 841(a)(1) notwithstanding utter
absence of evidence defendant intended to distribute drugs within United
States).
Second, the district court's failure to address appellant directly during important
portions of the Rule 11 proceeding, though contrary to Rule 11(c), violated no
"core" Rule 11 concern under our jurisprudence.2 See Allard, 926 F.2d at 124445; see also Cotal-Crespo, 47 F.3d at 4-5; cf. United States v. Medina-Silverio,
30 F.3d 1, 3 (1st Cir. 1994).
Third, appellant points out that the district court failed to inform him that the
mandatory minimum prison term prescribed by statute is ten years. See 21
U.S.C. 841(a) & (b)(1)(A); see also Fed. R. Crim. P. 11(c)(1). Furthermore,
the plea agreement itself misstated the minimum prison term as five years,
rather than ten. Nonetheless, since it is undisputed that the 188-month prison
term imposed by the district court is the minimum required under the applicable
sentencing guidelines, these errors too must be deemed "harmless." See United
States v. McDonald, 121 F.3d 7, 11 (1st Cir. 1997) (holding "harmless" the
district court's failure to inform defendant of mandatory minimum sentence, as
court ultimately imposed sentence lengthier than mandatory statutory
minimum, "without any reference to the mandatory minimum").
Finally, before accepting the guilty plea, the district court did not address
appellant directly in explaining the constitutional rights to remain silent and
confront adverse witnesses at any trial. See Fed. R. Crim. P. 11(c)(3). The
government responds that the omission was harmless because appellant signed
the plea agreementitself, which accurately reflected the charges, as well as the
basic constitutional rights waived under the plea agreement.3
In the "Statement of Facts" section of his appellate brief, appellant offers the
conclusory observation that the district court violated Rule 11 in failing to
advise that he would have the right to confront adverse witnesses and to refrain
from testifying at any trial. Then, at the very outset of the "Argument" section
in his appellate brief, appellant explicitly delimits his argumentation to but two
issues: the alleged violation of Rule 11(c)(1) by the district court, in failing to
inform appellant of (i) the nature of the charges to which he was pleading
guilty, and (ii) the correct mandatory minimum sentence, see supra. Moreover,
appellant neither presents developed argumentation nor provides pertinent case
citations respecting the asserted Rule 11(c)(3) omissions. Consequently, we
deem these embryonic claims to have been waived on appeal. See, e.g., United
States v. Rosario-Peralta, 199 F.3d 552, 563 n.4 (1st Cir. 1999) (appellate court
deems waived issues presented in perfunctory manner, without developed
argumentation).
Notes:
1
See, e.g., United States v. McDonald, 121 F.3d 7 (1st Cir. 1997); United States
v. Lopez-Pineda, 55 F.3d 693, 696 (1st Cir. 1995); United States v. CotalCrespo, 47 F.3d 1 (1st Cir. 1995); United States v. Medina-Silverio, 30 F.3d 1,
3 (1st Cir. 1994); United States v. Allard, 926 F.2d 1237 (1st Cir. 1991).
Compare, e.g., United States v. Tursi, 576 F.2d 396, 399 (1st Cir. 1978)
(finding no reversible error in district court's failure to inform defendant of trial
rights, but under pre-1976 version of Rule 11, which -- unlike current Rule
11(c)(3) -- did not enumerate specific trial rights), and United States v. Stead,
746 F.2d 355, 356-57 (6th Cir. 1984) (declining to vacate guilty plea though
district court admittedly failed to warn defendant of right against selfincrimination and right to confront witnesses), with United States v. Carter, 619
F.2d 293, 295 (2d Cir. 1980) (reversing where district court omitted "core"
requirement that defendant be advised of confrontation rights).