USCA1 Opinion

                         [NOT FOR PUBLICATION]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, 936 F.2d 588, 593-94 (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, 426 U.S. 637 (1976).  See Marshall v.

    Lonberger, 459 U.S. 422, 437-38 (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, 42 F.3d 36, 42 (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, 828 F.2d

    399, 405-06 (7th Cir. 1987).

             Relying on United States v. Parra-Ibanez, supra, 936

    F.2d 588, 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.  Id.  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, 85 F.3d 831 (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, 124 F.3d 342, 353 (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.