United States Court of Appeals For the First Circuit

No. 16-1407

UNITED STATES OF AMERICA,

Appellee,

v.

CARLOS DÍAZ-CONCEPCIÓN,

Defendant, Appellant.

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

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before

Torruella, Lynch, and Kayatta, Circuit Judges.

Leslie W. O'Brien on brief for appellant. John A. Mathews II, Assistant U.S. Attorney, Mariana E. Bauzá- Almonte, Assistant U.S. Attorney, Chief, Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States Attorney, on brief for appellee.

June 21, 2017 LYNCH, Circuit Judge. Carlos Díaz-Concepción pled

guilty to a one-count information charging him with possession of

a firearm in furtherance of a drug trafficking crime, in violation

of

(c)(1)(A)(i), after he was found to be in

possession of a loaded machine gun, two magazines loaded with

ammunition, thirteen individually packaged bags of cocaine, one

bag of marijuana, and $3,138 in cash while driving a motorcycle in

Puerto Rico. Consistent with the terms of the plea agreement Díaz-

Concepción entered, the defense recommended a sentence of seven

years' imprisonment, and the government recommended a sentence of

ten years' imprisonment. The district court imposed a sentence of

eight years' imprisonment, comfortably within the range of those

recommendations.

Díaz-Concepción appeals his conviction, arguing to us,

as he did not to the district court, that his plea was not knowing

and voluntary because the district court purportedly, in error,

failed to adequately explain to him the nature of the charged

offense during his plea colloquy. See Fed. R. Crim. P. 11(b)(1)(G)

(before accepting a guilty plea, a court must "inform the defendant

of, and determine that the defendant understands, . . . the nature

of each charge to which the defendant is pleading").

We hold that the district court committed no error in

accepting Díaz-Concepción's plea, much less the plain error he

must show to prevail in this appeal. We affirm his conviction. - 2 - I.

On October 19, 2014, Díaz-Concepción was pulled over by

officers of the Puerto Rico Police Department for driving a

motorcycle without a helmet. During the stop, the officers

discovered that Díaz-Concepción was in possession of a loaded

machine gun, two magazines loaded with ammunition, thirteen

individually packaged bags of cocaine, one bag of marijuana, and

$3,138 in cash. Díaz-Concepción was ultimately indicted on federal

charges of (1) possession of cocaine with intent to distribute, in

violation of

(a)(1); and (2) possession of a machine

gun in furtherance of a drug trafficking crime, in violation of

(c)(1)(B)(ii).

Following plea negotiations, Díaz-Concepción agreed to

waive indictment and plead guilty to a one-count information

containing only the firearm charge. Notably, as a result of those

negotiations, the firearm charge changed, in that it no longer

alleged that the firearm at issue was a machine gun.1 The

government also agreed to drop the drug charge altogether.

1 Díaz-Concepción did well in his negotiations. The information charged that he "did knowingly and intentionally possess a firearm . . . in furtherance of a drug trafficking crime . . . in violation of [18 U.S.C. §] 924(c)(1)(A)(i)." A violation of § 924(c)(1)(A)(i) carries a mandatory minimum sentence of five years' imprisonment. In contrast, a violation of § 924(c)(1)(B)(ii) -- the provision applicable when the firearm at issue is a machine gun -- carries a mandatory minimum sentence of 30 years' imprisonment. - 3 - On April 20, 2015, Díaz-Concepción signed a plea

agreement and accompanying Stipulation of Facts. In signing the

Stipulation of Facts, Díaz-Concepción "agree[d] that [it was] a

true and accurate summary of the facts leading to [his] acceptance

of criminal responsibility for violating

(c)(1)(A)." The Stipulation of Facts described the

circumstances of the October 2014 traffic stop, including the items

that were found in Díaz-Concepción's possession during his

motorcycle ride. It stated that Díaz-Concepción "acknowledges

that he possessed a firearm in furtherance of a drug trafficking

crime [under

(c)(1)(A)(i)]." And it stated that,

"[h]ad this matter proceeded to trial, the government would have

[proven the aforementioned] facts beyond a reasonable doubt."

In the plea agreement, Díaz-Concepción attested as

follows: "I have read this [agreement] and carefully reviewed every

part of it with my attorney. I fully understand this [agreement]

and voluntarily agree to it." As part of the agreement, the United

States formally agreed to "move to dismiss the [indictment in its

entirety]."

The same day that he signed the agreement, Díaz-

Concepción appeared at a plea hearing before a magistrate judge.

The judge first made sure Díaz-Concepción was competent and that

he understood the proceedings, making clear that he could freely

request additional clarification or repetition and could ask - 4 - questions or consult with his attorney at any time as to any issue.

The judge then recited the charge against Díaz-Concepción, showed

him his signed agreement, and received his assurance that he had

signed it voluntarily and with the advice of counsel. Defense

counsel verified that she had explained the agreement to Díaz-

Concepción, and Díaz-Concepción confirmed that he was fully

satisfied with the legal advice and representation he had received.

After reviewing the contents of the agreement with Díaz-

Concepción,2 the judge asked the government to state the facts that

the government would have proven if the case had gone to trial.

The government explained the facts as they were described in the

Stipulation of Facts appended to the agreement. The government

concluded by stating that Díaz-Concepción "acknowledges that he

possessed a firearm in furtherance of a drug trafficking crime as

charged in Count 1 of the information," and the government would

have proven -- through "the testimony of law enforcement agents,

[the testimony of] an expert chemist, [and] physical and

2 The judge enumerated for Díaz-Concepción the various rights he was waiving under the agreement. As Díaz-Concepción himself summarizes in his brief, he acknowledged that he was "waiving his right to remain silent, to be presumed innocent, to testify on his own behalf, to have a speedy trial, to cross examine witnesses and challenge the evidence against him, to be found guilty only upon a unanimous verdict, to compel attendance of witnesses, to be assisted by counsel throughout the trial, to be presumed innocent, to have the prosecution bear the burden of proof beyond a reasonable doubt, and to make no admissions incriminating himself." - 5 - documentary evidence" -- that fact beyond a reasonable doubt in

the event of a trial. The judge then asked Díaz-Concepción if the

facts as stated by the government were accurate, and he answered

in the affirmative.

Finally, the judge sought to confirm that Díaz-

Concepción understood the charge against him. The judge explained:

"[T]he [one count in the] information . . . that you're pleading

guilty to [states that on October 19, 2014 you] 'did knowingly and

intentionally possess a firearm . . . [in] furtherance of a drug

trafficking crime . . . in violation of [18 U.S.C.

§] 924(c)(1)(A)(i).' Do you understand this charge?" After Díaz-

Concepción responded, "Yes," the judge asked, "Do you understand

you are pleading guilty to this charge?" and Díaz-Concepción again

responded, "Yes."

Having found that Díaz-Concepción acted competently,

knowingly, and voluntarily, and that "there[] [was] a basis in

fact for [the] plea," the magistrate judge recommended to the

district court that the plea be accepted and approved. Díaz-

Concepción did not object, and the district court adopted that

recommendation.

Sentencing was held before the district court on March

21, 2016. During his allocution, Díaz-Concepción acknowledged his

guilt, stating: "I know I committed this crime and I have to serve

my time for it." As the plea agreement prescribed, the defense - 6 - recommended a seven-year sentence, and the government recommended

a ten-year sentence. The court noted that the offense of

conviction carried a statutory range of five years to life. It

acknowledged that the parties' recommendations reflected the

benefit Díaz-Concepción had received -- through the omission in

the information of the facts that had appeared in the indictment

identifying his firearm as a machine gun -- in exchange for his

guilty plea. The court then imposed a sentence of eight years.

At the conclusion of the proceedings, the court advised

Díaz-Concepción that, although he had agreed to waive his right to

appeal his conviction as part of his plea agreement, he could

pursue an appeal if he felt that his plea was unlawful or

involuntary or that there was some fundamental defect in the

proceedings. See United States v. Chambers,

(1st

Cir. 2013) (a waiver-of-appeal provision in a plea agreement does

not bar an appeal challenging the validity of the plea itself).

This appeal followed.

II.

On appeal, Díaz-Concepción argues that his guilty plea

was not knowing and voluntary and that, therefore, the district

court should not have accepted it. He posits that that is because

the magistrate judge did not explain at the plea hearing the

elements of possession of a firearm in furtherance of a drug

trafficking crime -- namely, the requirement that the defendant - 7 - was engaged in a drug trafficking crime (such as possession of

cocaine with intent to distribute) -- and, as a result, he did not

clearly understand the nature of the crime to which he pled guilty.

Given that Díaz-Concepción raises this issue for the first time on

appeal, he necessarily argues that the omission of an explanation

of the elements was plain error. He claims that it is reasonably

probable that he would not have pled guilty if such an explanation

had been provided, given the purported weakness of the government's

evidence as to his intent to distribute the cocaine seized from

him.

To prevail under the plain error standard, Díaz-

Concepción must prove "(1) that an error occurred (2) which was

clear or obvious and which not only (3) affected the defendant’s

substantial rights, but also (4) seriously impaired the fairness,

integrity, or public reputation of judicial proceedings." United

States v. Duarte,

(1st Cir. 2001). He cannot make

this showing.

A. There Was No Error

Díaz-Concepción's claim fails at the threshold question

of whether there was any error at all. The error that Díaz-

Concepción alleges is a violation of Federal Rule of Criminal

Procedure 11(b)(1)(G). That rule requires a court, before

accepting a defendant's guilty plea, to "inform the defendant of,

and determine that the defendant understands, . . . the nature of - 8 - each charge to which the defendant is pleading." Fed. R. Crim. P.

11(b)(1)(G); see United States v. Delgado-Hernández,

(1st Cir. 2005) ("'[E]nsuring that the defendant understands

the elements of the charges that the prosecution would have to

prove at trial' is . . . 'a "core concern" of Rule 11.'" (first

alteration in original) (quoting United States v. Gandia-Maysonet,

(1st Cir. 2000))). Díaz-Concepción argues that the

court failed to explain explicitly to him that the commission of

a drug trafficking crime is an element of possession of a firearm

in furtherance of a drug trafficking crime and that, therefore, in

order to convict him under

(c)(1)(A)(i) at a trial,

the government would have needed to prove beyond a reasonable doubt

that he intended to distribute cocaine found in his possession, in

violation of

(a).

Rule 11 does not require a court to "employ a 'specific

script [or] set of magic words.'" United States v. Ramos-Mejía,

(1st Cir. 2013) (quoting United States v. Ward,

(1st Cir. 2008)). And it certainly "does not

require the court to explain the technical intricacies of the

charges," including, in most cases, the charges' component

elements.

(quoting United States v. Cruz-Rivera,

(1st Cir. 2004)). "Under ordinary circumstances, it is

sufficient in a plea colloquy for a district court to 'ascertain

that a defendant is aware of the nature of the charge against him - 9 - by reading the charge in the indictment to the defendant and

obtaining his competent acknowledgment that he understands the

charge.'"

(quoting Delgado-Hernández,

).

Our decision in Ramos-Mejía is instructive. There, the

appellant claimed that the district court had erred under Rule 11

by failing to explain to him that knowledge and specific intent

were elements of the drug trafficking offense to which he pled

guilty; instead, the court had simply "read the charge from the

indictment and then inquir[ed] whether that was what [the

appellant] had done." Id. at 14-15. We rejected the claim of

error, noting that the court had

assured itself of the [appellant's] competence to plead, had the prosecutor summarize both the plea agreement and the government's available proof, . . . obtained the appellant's acknowledgment that those summaries were accurate[,] [had] [t]he appellant . . . confirm[] to the court his desire "[t]o plead guilty [to] what [he was] being accused of[,]" . . . made certain that the appellant had read the indictment and understood both the charge and the terms of the plea agreement[,] . . . verified that the appellant had reviewed these materials with his attorney[,] . . . read aloud the charge limned in the indictment, and [heard] the appellant agree[] that he had knowingly participated in that activity.

Id. at 15 (eighth, ninth, and tenth alterations in original); see

also United States v. Ramírez-Benítez,

, 27 (1st Cir.

2002) (finding "no [Rule 11] error" where "[t]he terms of the

indictment alone sufficed to put [the defendant] on notice of the - 10 - charge to which he was pleading guilty[,] [the defendant] admitted

he understood the charge[,] and the court found him competent to

plead"). All of those steps were taken by the court here, and no

more was required.3

The record indicates that Díaz-Concepción sufficiently

understood the elements of the charged crime. The plea agreement

itself contained a factual narrative that made explicit what the

government said it could prove. And it contained Díaz-Concepción's

unequivocal attestation that he understood that narrative and

agreed with the government's claim of proof. The agreement also

memorialized Díaz-Concepción's review of its contents with

counsel. All of this information was confirmed at the plea

hearing. Finally, Díaz-Concepción was specifically on notice that

the predicate drug trafficking crime attendant to the charge of

possession of a firearm in furtherance of a drug trafficking crime

was possession of cocaine with intent to distribute, as that charge

had appeared alongside the firearm charge in the original

3 It is true that the ordinary requirements of Rule 11 may be heightened in an extraordinary case "depending on the attributes of the particular defendant, the nature of the specific offense, and the complexity of the attendant circumstances." Ramos-Mejía,

. But "[t]his is a run-of-the-mine case, involving a mature defendant with a history of gainful employment [and some college education]. The appellant was facing only a single charge -- and that charge was not a complicated one. Moreover, the circumstances attendant to the charged crime were straightforward."

- 11 - indictment. "Given these considerations, . . . a reading of the

charge sufficed." Ramos-Mejía,

. There was no

error.

B. Any Error Did Not Affect Díaz-Concepción's Substantial Rights

Even if Díaz-Concepción had established that a Rule 11

error occured and that the error was clear or obvious, his claim

would fail in any event at the third prong of plain error review.

That is, he cannot show a reasonable probability that, but for the

purported error, he would not have pled guilty. See United States

v. Urbina-Robles,

(1st Cir. 2016). Where, as

here, it is clear from the uncontested record that the government

would have had sufficient evidence to secure a conviction at trial,

an appellant's bare contention that he might have pled differently

if the elements of the charged offense had been expounded upon is

not enough to meet that standard. See

.

In the end, Díaz-Concepción's argument dissolves into a

simple one -- that the government could not have easily proven

that he intended to distribute the cocaine found in his possession.

He is wrong. The government had "ample evidence" of his intent to

distribute. United States v. Andrade,

(1st Cir.

1996).

First, Díaz-Concepción was in possession of a large sum

of cash, totaling $3,138 -- one of the common "trappings of a drug

distributor." United States v. Bobadilla-Pagán,

, 34 - 12 - (1st Cir. 2014). Second, Díaz-Concepción was in possession of a

loaded machine gun and additional loaded magazines. See

(intent to distribute can be inferred where drugs are found in the

vicinity of a loaded firearm); see also United States v. Bianco,

(1st Cir. 1991) ("[F]irearms are common tools of

the drug trade."). And third, Díaz-Concepción's cocaine was

packaged in thirteen individual bags rather than in a single bag,

as one might expect if the drugs truly were intended solely for

his personal use. See United States v. Pena,

, 112

n.8 (1st Cir. 2009) (intent to distribute can be inferred where

drugs are "packaged in individual . . . bags"); United States v.

Bergodere,

(1st Cir. 1994) (the fact that

appellant's drugs were packaged in several individual bags

"militated toward a conclusion that appellant was himself a

dealer").

To the extent Díaz-Concepción also argues that the

government could not have easily proven the existence of a nexus

between any drug trafficking he engaged in and his firearm, he is

wrong again. All of the common signs that the firearm was used to

protect drugs and drug proceeds, and thereby further drug

trafficking efforts, were present here. See Pena,

; United States v. Garner,

(1st Cir. 2003).

First, Díaz-Concepción's machine gun was loaded, and he

had in his possession multiple additional magazines that were also - 13 - loaded. See Pena,

. Second, the firearm was

readily accessible to Díaz-Concepción, holstered as it was on his

waist. See

Third, although the record does not disclose the

precise location of Díaz-Concepción's drugs, they were undoubtedly

in close proximity to the firearm on his person; given that he was

riding a motorcycle, the drugs were either also on his person or

mere feet away. See

Finally, in addition to drugs, Díaz-

Concepción was also in possession of a large sum of cash, totaling

$3,138. See

The government's proof of a nexus with drug

trafficking was overwhelming. Cf. United States v. Grace,

(1st Cir. 2004) (finding sufficient evidence of a nexus

between a firearm and a drug trafficking crime for a conviction

where an unloaded firearm was discovered under a bed in a drawer,

no ammunition was found in the house, and the drugs were found in

a different room than the firearm).

In view of the strength of the government's evidence

that was more than sufficient to prove each element of the charged

crime, Díaz-Concepción cannot demonstrate a reasonable probability

that he would not have pled guilty if the court had simply listed

for him each of those elements, or devoted more detail to

describing how his conduct would satisfy the "in furtherance"

requirement.4 See Delgado-Hernández,

.

4 To the extent that, in addition to his claim that the district court violated Rule 11(b)(1)(G) by failing to explain to - 14 - This conclusion is firmly reinforced by the substantial

benefit Díaz-Concepción received by pleading guilty. See Urbina-

Robles,

. As part of his plea deal, the government

agreed to drop the drug charge against him and permitted him to

plead guilty to a version of the firearm charge that omitted any

reference to the automatic nature of his gun. By agreeing to these

terms, Díaz-Concepción was able to reduce the mandatory minimum

prison term he faced by 25 years. In light of the evidence of his

guilt, it is not reasonable to think he would have rejected such

a deal and taken his chances at trial.

III.

Díaz-Concepción's conviction is affirmed.

him the elements of a § 924(c) violation, Díaz-Concepción independently claims that the district court violated Rule 11(b)(3) by accepting a plea that he now purports lacked a sufficient factual basis, that claim easily fails. Even if the claim has not been waived as perfunctorily raised, see United States v. Zannino,

(1st Cir. 1990), for the reasons just recounted, the facts that the government proffered and that Díaz-Concepción conceded easily provided the plea with "a rational basis in fact[]." Delgado-Hernández,

(quoting Gandia-Maysonet,

). - 15 -