[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

No. 97-2238

UNITED STATES,

Appellee,

v.

KELLY JANE RANKIN, A/K/A KELLY JANE JORDAN RANKIN, A/K/A JORDAN RANKIN-WOLFF,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Gimenez, U.S. District Judge]

Before

Boudin, Circuit Judge, Coffin, Senior Circuit Judge, and Lynch, Circuit Judge.

Alexander Zeno on brief for appellant. Guillermo Gil, United States Attorney, Timothy L. Faerber, Assistant United States Attorney, and Jose A. Quiles, Senior Litigation Counsel, on brief for appellee.

March 17, 1998

Per Curiam. Defendant Kelly Jane Rankin pleaded guilty to charges that she and her codefendants conspired to use the mails and wires to engage in a scheme to defraud various persons by telling them that money they handed over to the defendants would be invested in such a way as to produce high returns; instead, the defendants kept the money for themselves. Defendant now argues that her guilty plea should be set aside and that her attorney provided ineffective assistance of counsel. We reject the first argument on the merits and find that the second claim must be raised in a motion under 28 U.S.C. 2255. 1. The Guilty Plea Defendant contends on appeal that the district court abused its discretion in denying her motion to withdraw her guilty plea. However, on July 28, 1997, defendant filed, through counsel, a motion to withdraw the motion to change her plea. The district court essentially allowed this motion when it endorsed the motion to change the plea as "withdrawn." Although both parties to this appeal inexplicably fail to mention the withdrawal of the motion to change the guilty plea, we think it is dispositive. That is, because defendant withdrew her motion to change her guilty plea and because the district court therefore never ruled on the motion's merits, the motion simply is not before this court. We may nonetheless review the guilty plea itself to determine whether the plea was deficient. See United States v. Parra-Ibanez,

(1st Cir. 1991). Defendant's first contention is that her plea was not voluntary and knowing because the district court never sufficiently informed her of the nature of the charges against her. SeeFed. R. Crim. P. 11(c)(1). Specifically, defendant contends that the lower court never told her that to be found guilty on the conspiracy count, the government would need to prove that she intended to join the conspiracy, something, defendant avers, that she always has denied. We see no merit to this contention. Here, count one of the indictment charged that defendants "knowingly, willfully, unlawfully, and intentionallycombine[d], conspire[d] . . . and agree[d] together and with each other" to devise a scheme to obtain money by means of false pretenses. Third Superseding Indictment, Count One (emphasis added). At the change of plea hearing, the judge quoted count one in its entirety and defendant confirmed that this was what she was pleading guilty to. Transcript of Change of Plea Hearing, at 5, 11-16. This is sufficient under Henderson v. Morgan,

(1976). See Marshall v. Lonberger,

(1983) (relying on the trial judge's recitation of part of the indictment as a factor in concluding that defendant had received adequate notice of the charges against him). Defendant's other argument regarding the charges -- that she never was told about the full extent of the conspiracy (defrauding persons of approximately $1,900,000) and never was informed that under the sentencing guidelines, she could be ordered to pay as much as $1,900,000 in restitution -- also fails. First, defendant has not been prejudiced because no restitution has been ordered. In any event, the district court judge specifically informed defendant that she could be fined as much as $3,500,000. Transcript of Change of Plea Hearing, at 8-10. Thus, any error was harmless. See United States v. Raineri,

(1st Cir. 1994) (where a defendant is required to pay restitution in an amount less than the potential fine of which he was warned, the failure to inform the defendant at the change of plea hearing that restitution is a possibility is harmless error). Defendant next contends that the district court failed to comply with Rule 11(f) because it did not ensure that there was a factual basis for the guilty plea. However, a review of the change of plea hearing reveals that the prosecutor set out the evidence it would prove if the case went to trial, including specific acts of fraud in which defendant had engaged and evidence concerning her knowledge of the fraudulent scheme. See Transcript of Change of Plea Hearing, at 20-25. Courts have held that the prosecutor's statement of facts on the record can satisfy the requirement of a factual basis for the plea. See, e.g., United States v. Ray,

(7th Cir. 1987). Relying on United States v.

, defendant also argues that once the district court judge learned that she was taking Phenergan with codeine, he should have conducted a "further inquiry" into her ability to comprehend what was transpiring at the change of plea hearing. In support of this contention, defendant submits an excerpt from the Physicians' Desk Reference (PDR) concerning Phenergan with codeine. The PDR states that this drug "may cause marked drowsiness or impair the mental and/or physical abilities required for the performance of potentially hazardous tasks, such as driving a vehicle or operating machinery." The PDR also states that promethazine, the active ingredient in Phenergan, can cause "[s]edation, sleepiness [and] dizziness; rarely confusion [and] disorientation." However, unlike the district court judge in Parra- Ibanez, the judge here did ask defendant what effect the medicine had on her mental processes. She responded that she was "fairly coherent." Transcript of Change of Plea Hearing, at 5. From this answer, the district court judge was justified in concluding that she was coherent enough to proceed. SeeWebster's Ninth New Collegiate Dictionary 445 (1985) (defining "fairly" as "to a full degree or extent" or "for the most part"). Further, after hearing that she was fairly coherent, the judge then asked defendant what she was doing at the hearing. Transcript of Change of Plea Hearing, at 5. Defendant answered that she was pleading guilty.

This kind of open-ended question is an additional way to test a defendant's mental alertness. Finally, the information in the PDR suggests that while sedation can occur with the drug defendant was using, confusion "rarely" occurs and a person's mental abilities might be compromised only to the extent of having difficulty operating hazardous machinery. The PDR does not warn that a person's abilities to comprehend and reason may be affected by codeine and promethazine. Defendant's final objection to the plea hearing is without merit. Specifically, she points out that most of the judge's questions were leading; that is, she was required to give only "yes" or "no" answers to the questions. However, defendant fails to specify any particular point of confusion or error. Further, the charges were not complex and, as we indicated above, defendant had the capacity to understand what was transpiring at the plea hearing. Thus, this case is controlled by United States v. Isom,

(1st Cir. 1996), and the use of leading questions was proper.

2. Ineffective Assistance of Counsel. Defendant also argues that her guilty plea should be vacated due to the ineffective assistance of her trial attorney. However, unlike the question of the validity of the guilty plea itself, which could be resolved on the basis of the district court record, resolution of this issue requires further factual development. Thus, a collateral proceeding under 28 U.S.C. 2255 is the proper forum for this claim. SeeUnited States v. Marrero-Rivera,

(1st Cir. 1997) (a claim of ineffective assistance of counsel should be brought in a 2255 motion if the record is insufficiently developed for direct review). The judgment of the district court is summarilyaffirmed. See Local Rule 27.1.