Not For Publication in West's Federal Reporter Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals For the First Circuit

No. 02-2250

UNITED STATES OF AMERICA,

Appellee,

v.

JERRY MARTÍNEZ-MARTÍ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Héctor M. Laffitte, U.S. District Judge]

Before

Boudin, Chief Judge, Torruella and Lipez, Circuit Judges.

Leslie W. O'Brien, was on brief, for appellant. Nelson Pérez-Sosa, Assistant United States Attorney, with whom H.S. García, United States Attorney, and Sonia I. Torres-Pabón, Assistant United States Attorney, Chief, Criminal Division, were on brief, for appellee.

May 4, 2004 Per Curiam. Defendant-appellant Jerry Martínez-Martí was

charged with one count of conspiracy to distribute narcotics in

violation of

and one count of possession of

firearms in furtherance of a drug trafficking crime in violation of

(c)(1). Martínez-Martí pleaded guilty to both

counts and was sentenced to a term of 144 months imprisonment for

the narcotics violation and 60 months imprisonment for the firearms

violation, to be served consecutively. Martínez-Martí appeals the

district court's acceptance of his guilty plea for the firearms

possession charge because, he argues, there was an insufficient

factual basis for the plea. We disagree.

At the plea hearing, the prosecutor submitted that

[t]he evidence would have shown that [as an enforcer and supervisor of drug distribution], the defendant, Jerry Martínez-Martí would possess firearms and ensure that other members of the conspiracy would possess and use firearms in order to protect itself and the other members of the conspiracy, the drug business, the narcotics themselves, and the proceeds derived from sales of narcotics.

The plea agreement Martínez-Martí signed contained a similar

description of the nature of the firearms violation. At the

sentencing hearing, Martínez-Martí informed the district court that

at no time [has] the U.S. Attorney's Office, nor my attorney, . . . handed me any evidence that directly or indirectly links me with the crime of possessing a firearm, nor of my knowing that others were using firearms . . . [but knowing] that if I am to go to trial . . . I could face a life sentence in prison . . . I make this decision to plead guilty.

-2- In response to this statement, the prosecutor informed

the district court that "there would have been more than one

cooperating witness that would have testified that throughout the

course of this conspiracy, on more than one occasion, that this

Defendant possessed a firearm during the course of his role of that

conspiracy."

The district court then asked Martínez-Martí for his

response and Martínez-Martí replied that he agreed with the plea

that he signed, he assumed responsibility, and he agreed with the

version of the facts presented by the prosecutor. The district

court then asked Martínez-Martí specifically if "you admit that you

possessed weapons in connection with the traffic offense."

Martínez-Martí replied "Well, yes." The district court then found

that Martínez-Martí's decision to plead guilty was made "knowingly,

intelligently, voluntarily, and solemnly," noting that Martínez-

Martí "acknowledge[d] the prosecutor's version of the facts" which

would have shown guilt beyond a reasonable doubt on both charged

counts.

Martínez-Martí now contends that the district court's

acceptance of the guilty plea violated Federal Rule of Criminal

Procedure 11(b)(3) which requires that "[b]efore entering judgement

on a guilty plea, the court must determine that there is a factual

basis for the plea." Fed. R. Crim. P. 11(b)(3). Although neither

party addressed the issue, it is important to note that Rule 11 was

-3- subject to an amendment that took effect on December 1, 2002.

Martínez-Martí's guilty plea and sentence took place in August

2002. Because his guilty plea was entered prior to the effective

date of the amendment, the pre-amended Rule 11 applies. See United

States v. Mercado,

(2d Cir. 2003), cert. denied,

(2004).

The analogous provision to current Rule 11(b)(3) in the

prior version of Rule 11 is Rule 11(f), which stated that

"[n]otwithstanding the acceptance of a plea of guilty, the court

should not enter a judgment upon such plea without making such

inquiry as shall satisfy it that there is a factual basis for the

plea." See Libretti v. United States,

(1995).

Martínez-Martí believes that this rule was violated

because the information provided to the sentencing judge was too

vague in that it failed to inform the district court when and where

Martínez-Martí was alleged to have a firearm, what he actually did

with a firearm that furthered the conspiracy, and what type of

firearm he possessed.

When a Rule 11 challenge is made for the first time on

appeal, we review for plain error. United States v. Vonn,

(2002); see also United States v. Mills,

(1st Cir. 2003) (stating that "[an] error not objected to at the

plea hearing is reversible only where the error is plain, affects

the defendant's substantial rights, and seriously affects the

-4- fairness of the proceeding.") (citations omitted). A "a district

judge satisfies the requirements of Rule 11(f) when he determines

that the conduct which the defendant admits constitutes the offense

charged in the indictment or information or an offense included

therein to which the defendant has pleaded guilty." Libretti,

(internal quotations and citations omitted). "Often

what the judge is told at the hearing is an abbreviated version of

the full range of government evidence, omitting detail and nuance

that would be offered at trial." United States v. Gandía-Maysonet,

(1st Cir. 2000). Rule 11(f)'s requirement -- that

the trial court be satisfied that a guilty plea has a basis in fact

-- is designed to "protect a defendant who is in the position of

pleading voluntarily with an understanding of the nature of the

charge but without realizing that his conduct does not actually

fall within the charge." McCarthy v. United States,

(1969) (footnote and internal quotation omitted).

In this case, Martínez-Martí questioned whether the

government had evidence linking him with the crime of possessing a

firearm. In response, the prosecution asserted that they had more

than one cooperating witnesses who could testify that Martínez-

Martí possessed a firearm while executing his role in the

conspiracy. After hearing the prosecutor's response, the judge

attempted to clarify whether Martínez-Martí admitted that he

possessed weapons to further the offenses. Martínez-Martí again

-5- admitted that he did possess firearms to further the conspiracy.

This colloquy proves that Martínez-Martí understood the nature of

the charge against him and realized that his actions fell within

that charge. The district court fulfilled its Rule 11(f) duty of

"making such inquiry as shall satisfy it that there is a factual

basis for the plea."

As a result, it is not a violation of the former Federal

Rule of Criminal Procedure 11(f) for a judge to accept a plea

where, as here, the defendant admitted that the facts at trial

would have shown that he possessed firearms to further the

conspiracy and where, as here, the defendant had an opportunity to

explain "in his own words" whether he admitted to possessing

weapons in connection with the conspiracy. For the aforementioned

reasons, Martínez-Martí's conviction and sentence are affirmed.

Affirmed.

-6-