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  • Berrio Callejas v. United States, 219 F.3d 1, 1st Cir. (2000)

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    This document summarizes a court case involving violations of Federal Rule of Criminal Procedure 11 during a plea hearing. The defendant pleaded guilty to drug possession charges but argued on appeal that the district court failed to properly inform him of the nature of the charges and the mandatory minimum sentence. The appeals court found that while some Rule 11 violations occurred, they did not involve "core" requirements and were harmless, as the defendant received the minimum sentence required by the guidelines. The court also deemed waived the defendant's argument about not being informed of his trial rights, as he provided no substantive argument on that issue. The district court's judgment was affirmed.

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    Filed: 2000-07-17 Precedential Status: Precedential Citations: 219 F.3d 1 Docket: 98-2188

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    This document summarizes a court case involving violations of Federal Rule of Criminal Procedure 11 during a plea hearing. The defendant pleaded guilty to drug possession charges but argued on appeal that the district court failed to properly inform him of the nature of the charges and the mandatory minimum sentence. The appeals court found that while some Rule 11 violations occurred, they did not involve "core" requirements and were harmless, as the defendant received the minimum sentence required by the guidelines. The court also deemed waived the defendant's argument about not being informed of his trial rights, as he provided no substantive argument on that issue. The district court's judgment was affirmed.

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    18 views4 pages

    Berrio Callejas v. United States, 219 F.3d 1, 1st Cir. (2000)

    Uploaded by

    Scribd Government Docs
    This document summarizes a court case involving violations of Federal Rule of Criminal Procedure 11 during a plea hearing. The defendant pleaded guilty to drug possession charges but argued on appeal that the district court failed to properly inform him of the nature of the charges and the mandatory minimum sentence. The appeals court found that while some Rule 11 violations occurred, they did not involve "core" requirements and were harmless, as the defendant received the minimum sentence required by the guidelines. The court also deemed waived the defendant's argument about not being informed of his trial rights, as he provided no substantive argument on that issue. The district court's judgment was affirmed.

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    of 4

    219 F.3d 1 (1st Cir.

    2000)

    UNITED STATES OF AMERICA, Appellee,


    v.
    CARLOS ALBERTO BERRIO-CALLEJAS, Defendant,
    Appellant.
    No. 98-2188

    United States Court of Appeals For the First Circuit


    Heard Aug. 4, 1999.
    Decided July 13, 2000.

    APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE


    DISTRICT OF PUERTO RICO. Hon. Jaime Pieras, Jr., Senior U.S.
    District Judge.
    Edgardo Rodriguez-Quilichini, Assistant Federal Public Defender, with
    whom Joseph C. Laws, Jr., Federal Public Defender, was on brief for
    appellant.
    Camille Velez-Rive, Assistant United States Attorney, with whom
    Guillermo Gil, United States Attorney, and Jorge E. Vega-Pacheco,
    Assistant United States Attorney, were on brief for appellee.
    Before: Selya, Circuit Judge, Cyr, Senior Circuit Judge, and Boudin,
    Circuit Judge.
    CYR, Senior Circuit Judge.

    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

    the District of Puerto Rico, with violating 21 U.S.C. 841(a)(1) by knowingly


    possessing approximately 1,692.8 grams of cocaine base, with intent to
    distribute. After pleading guilty pursuant to a written plea agreement, he was
    sentenced, inter alia, to a 188-month prison term, the minimum prescribed
    under the applicable sentencing guidelines.

    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).

    The present waiver is particularly conspicuous, in that appellant neither


    suggests nor contends that he was actually unaware of these two constitutional
    rights at the Rule 11 hearing. Rather, upon being asked by the district court
    whether he had "discussed with [his] attorney the meaning of pleading guilty,"
    and whether he was "satisfied with [his] attorney's representation," defendant
    responded in the affirmative, without limitation or qualification. (Emphasis
    added.) Finally, our independent research reveals that the caselaw -- concerning
    whether and in what circumstances a Rule 11(c)(3) omission may constitute
    reversible error -- is at best opaque,4 sufficient reason in itself to decline to
    reach an important question upon which appellant provides no elucidation
    whatsoever.

    Accordingly, the district court judgment is affirmed.

    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).

    See Cotal-Crespo, 47 F.3d at 4 (identifying "core concerns" as absence of


    coercion, understanding of charges, and knowledge of consequences of guilty
    plea). There is no suggestion of coercion. See also n.1 supra.

    Contrary to the government's characterization, however, the three-page plea

    agreement makes no mention of the two constitutional rights addressed here.


    4

    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).

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