United States Court of Appeals For the First Circuit

No. 21-1532

UNITED STATES OF AMERICA,

Appellee,

v.

ABIJAH WILLIAMS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. Jon D. Levy, Chief U.S. District Judge]

Before

Barron, Chief Judge, Lynch and Gelpí, Circuit Judges.

William L. Welch, III for appellant. Benjamin M. Block, Assistant United States Attorney, with whom Darcie N. McElwee, United States Attorney, was on brief, for appellee.

September 2, 2022 GELPÍ, Circuit Judge. In the instant case, Defendant-

Appellant Abijah Williams pled guilty at the District Court for

the District of Maine to one count of possession with intent to

distribute fentanyl and cocaine base in violation of

(a)(1)1 after a traffic stop near Wells, Maine uncovered both

hidden within his vehicle.

This appeal presents two issues. The first is whether

the district court erred under Federal Rule of Criminal Procedure

11 in accepting Williams's guilty plea. Although the government

argues that Williams waived this claim by disclaiming in the

district court the Rule 11 argument he now seeks to make on appeal,

we exercise our discretion to review it for plain error. In doing

so, we hold Williams's claim is meritless. The transcript shows

that the district court properly followed all of the required Rule

11 procedures, the counseled plea was voluntary and knowing, and

an adequate factual basis for accepting the plea existed. Indeed,

Williams's argument on appeal focuses on his statements at the

plea hearing that he was not speeding before he was stopped by the

state trooper. But that is irrelevant to the Rule 11 error

assertion. There was thus no plain error.

1 The statute in pertinent part provides that "[e]xcept as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally . . . [to] possess with intent to manufacture, distribute, or dispense, a controlled substance."

(a)(1).

- 2 - The second claim is that the court erred when it denied

Williams's motion to withdraw his guilty plea. Williams concedes

that this claim too is subject to plain error review, as the

argument he makes on appeal is different from that which he made

to the district court. This claim is foreclosed by our holding on

the first issue. Accordingly, we affirm.

I. Background

We commence with a brief recitation of the facts that

brought us to this appeal. On the evening of December 19, 2017,

Maine State Trooper Matthew Williams was traveling on I-95 North

in York, Maine. At around 9:00 PM, he noticed a gray Infiniti

sedan driving too closely behind other vehicles on the highway,

and determined by radar that the car was speeding, traveling

seventy-nine miles per hour in an area where the speed limit was

seventy miles per hour.2 The trooper began following the sedan,

at which point the vehicle exited the highway in Wells, Maine.

The trooper continued following the car through the toll plaza.

Once through, the car pulled into the toll plaza's employee parking

lot and the trooper followed. The trooper then turned on his

vehicle's blue lights, exited his car, and approached the stopped

vehicle.

2 We note that, during the plea colloquy, Williams disputed that he was speeding and stated that he was not.

- 3 - The trooper asked for the operator's driver's license

and determined that Williams was driving the vehicle. Williams

had a female passenger with him, and they told the trooper that

they were lost. When the trooper began to question Williams about

his destination and the friends he was going to meet there, he

faltered in his answers. His demeanor was nervous. To the

trooper, he seemed rigid and tense, and his hands were shaking.

Based on this behavior, combined with Williams's actions on I-95,

the trooper began to suspect criminal activity was afoot. He

ordered Williams out of the vehicle and called for a drug-sniffing

canine to be brought to the toll plaza parking lot.

The trooper then ran Williams's license information, and

determined that he was on parole for attempted homicide in

Connecticut and, additionally, that he was subject to a Connecticut

protective order which named his female passenger as the protected

person. The information available to the trooper did not indicate

the terms of the protective order, and both Williams and the female

passenger disputed that they were in violation of it.

Nevertheless, the trooper placed Williams under arrest for

violating the protective order.

While under arrest, Williams gave the trooper permission

to retrieve his phone from the driver's side door of the car in

order to obtain his parole officer's contact information. While

the trooper was looking for the phone in the driver's side door,

- 4 - he observed a small, folded envelope with a distinctive stamp on

it. Believing it to contain drugs based on his training and

experience, he opened the envelope and saw that it did indeed

contain a small amount of what appeared to be heroin. When the

drug-sniffing dog arrived, it alerted the officers to the smell of

narcotics on the vehicle. The trooper then searched the vehicle

and found 400 envelopes of heroin and 45 grams of cocaine base

concealed in a plastic container in the car's engine compartment.

In addition, he also found a sandwich bag containing heroin on the

ground near another police car that had arrived and was in

proximity to Williams's vehicle.

Williams and the female passenger were both taken to the

trooper barracks in Portland, Maine for additional questioning.

The passenger waived her Miranda rights and told the police that

Williams was trafficking drugs. She stated that while the trooper

was following them, knowing he would be pulled over, Williams told

her to hide the heroin-filled sandwich bag, causing her to toss it

towards the police car.

A grand jury indicted Williams for one count of

possession with intent to distribute fentanyl and cocaine base in

violation of

(a)(1). During the pretrial phase of

his case, Williams filed a motion requesting the withdrawal of his

appointed counsel. Following a conference, and with Williams's

acquiescence, the court denied the motion to withdraw.

- 5 - On January 31, 2019, Williams entered a guilty plea to

the sole count of the indictment. The district court conducted a

Rule 11 hearing -- which we will discuss in greater detail infra

as it forms much of the basis of this appeal -- and accepted

Williams's plea of guilty.

In June of 2019, Williams filed a motion to withdraw his

guilty plea.3 Williams's motion did not assert that the district

court had committed any error under Rule 11 in accepting his guilty

plea, but rather focused on his claim that his counsel at the

change of plea hearing had been ineffective. Following an

evidentiary hearing as well as additional briefing on the issue,

the district court denied the motion to withdraw the guilty plea.

The district court ultimately sentenced Williams to sixty months

of imprisonment, followed by four years of supervised release, a

sentence which is not at issue here. This timely appeal followed.

II. Discussion

A. Rule 11 Hearing

Williams posits that the district court committed two

errors while conducting his Rule 11 hearing. First, he argues

that the district court failed to advise him that he was giving up

the right to file pretrial motions (specifically, a motion to

3 In between his guilty plea and his motion to withdraw the plea, in March of 2019, Williams obtained new counsel following a motion to withdraw by his previous trial counsel.

- 6 - suppress) by pleading guilty. Second, he contends that the

district court erroneously found a factual basis for his guilty

plea in violation of Rule 11(b)(3).

1. Standard of Review

We review an unpreserved Rule 11 claim for plain error.

See United States v. Vonn,

(2002). The

government asserts that Williams's Rule 11 argument is not only

unpreserved, but it also is waived and therefore cannot be raised

on appeal. See United States v. Dietz,

(1st Cir.

1991). In support of this assertion, the government argues that

Williams affirmatively disclaimed any Rule 11 error before the

district court by expressly acknowledging, through counsel, that

there was no Rule 11 error of the type he now raises on appeal.4

"Where a defendant's claim would fail even if reviewed

for plain error, we have often declined to decide whether the

defendant's failure to raise the issue below constituted waiver or

mere forfeiture." United States v. Acevedo-Sueros,

(1st Cir. 2016) (citing United States v. Aguasvivas-Castillo,

(1st Cir. 2012)). We follow that well-trodden

4 This concession appeared in Williams's motion to withdraw his guilty plea, wherein he stated: "The defendant asserts that his decision to plead guilty was a voluntary, intelligent, and informed decision . . . ." The district court acknowledged it as such in its ruling on the motion, stating "Williams concedes that the plea colloquy at his change of plea hearing satisfied Rule 11(b)."

- 7 - path in this opinion, as we hold infra that the defendant's claim

would fail even under plain error review.

We utilize a four-part plain error test. To succeed on

plain error review, Williams must establish that "(1) an error

occurred; (2) the error was 'clear or obvious'; (3) the error

affected [his] substantial rights; and (4) the error 'seriously

affect[ed] the fairness, integrity or public reputation of [the]

judicial proceedings.'" United States v. Kitts,

(1st Cir. 2022) (second and third alterations in original) (quoting

Puckett v. United States,

(2009)).

2. Analysis

Williams focuses primarily on one exchange during his

Rule 11 hearing that he argues was in error and merits reversal.

We quote the exchange in full below:

THE COURT: Mr. Williams, have you reviewed th[e] prosecution['s] version [of the facts]? THE DEFENDANT: Yes, I have. THE COURT: And did you understand it? THE DEFENDANT: Yes, Your Honor. THE COURT: Is it all true to your personal knowledge? THE DEFENDANT: No, Your Honor. THE COURT: What's -- what's not true in it? THE DEFENDANT: The speeding, that's all. THE COURT: What is it? THE DEFENDANT: The speeding part. THE COURT: The what part? THE DEFENDANT: Speeding. The reason they stopped me. MS. FAIRFIELD: He doesn't believe that -- THE COURT: You don't believe you were stopped for speeding? THE DEFENDANT: No, I wasn't speeding.

- 8 - MS. FAIRFIELD: He doesn't believe he was speeding. THE COURT: You don't believe you were speeding? THE DEFENDANT: No, I wasn't, Your Honor. THE COURT: Okay. Is there anything else untrue in there? THE DEFENDANT: That is all. THE COURT: All right. And, Mr. Joyce, you have a witness who would testify that he was speeding, a state trooper; is that correct? MR. JOYCE: Yes, Your Honor. THE COURT: All right. Otherwise it is true? THE DEFENDANT: What, the speeding? THE COURT: No, other -- otherwise this document is true -- THE DEFENDANT: Yes, yes. THE COURT: -- except you didn't believe you were speeding. THE DEFENDANT: Yes, everything else is true except for speeding. THE COURT: Okay. I find a factual basis for the guilty plea for the crime charged in this indictment.

Williams argues that, on the basis of this exchange, the

district court violated Rule 11 by accepting the plea when it was

evident that Williams did not understand that the plea would

prevent him from bringing a suppression motion. Rule 11 defines

the contours of the plea hearing, setting forth the rights the

defendant waives by pleading guilty and directing the district

court to "address the defendant personally in open court . . .

[and] inform the defendant of, and determine that the defendant

understands," the rights that he is waiving, including "the right

to a jury trial" and "the right at trial to confront and cross-

examine adverse witnesses, to be protected from compelled self-

- 9 - incrimination, to testify and present evidence, and to compel the

attendance of witnesses," among others. Fed. R. Crim. P. 11(b)(1).

Under Rule 11, the court must also ensure that the plea is

voluntary. Id. 11(b)(2). Additionally, "[b]efore entering

judgment on a guilty plea, the [district] court must determine

that there is a factual basis for the plea." Id. 11(b)(3).

District court judges within the geographic confines of

the First Circuit have relied on our ample jurisprudence to conduct

Rule 11 hearings and accept defendants' guilty pleas.

Specifically, judges follow our articulation of the core concerns

of Rule 11, violations of which "mandate[] that the plea be set

aside." See United States v. Cotal-Crespo,

(1st Cir.

1995) (quoting United States v. Medina-Silverio,

(1st

Cir. 1994)). These "core concerns" are a lack of coercion, the

defendant's understanding of the charges against him, and the

defendant's "knowledge of the consequences of the guilty plea."

Id.; see also Kitts,

. Williams seeks to add a new

core concern to that list -- namely, that the defendant must

"underst[and] that by proceeding he would be waiving the right to

challenge the seizure of evidence." We decline to so expand Rule

11's core concerns. See United States v. Isom,

(1st Cir. 1996); Cotal-Crespo,

.

The filing of pretrial motions such as a motion to

suppress is not identified by Rule 11(b)(1) as a right that the

- 10 - district court must inform the defendant that he is waiving, as

Williams concedes in his opening brief. Therefore, the district

court's failure to so inform the defendant here does not constitute

plain error. See United States v. Rabb,

(1st Cir.

2021) (to establish plain error, "a party must show that the error

is contrary to existing law"). Williams does not point to any of

our caselaw to the contrary.

To the extent that Williams means to be arguing that his

plea was plainly not knowing because of his failure to understand

that he could not file a motion to suppress if he pled guilty, we

disagree. A meticulous review of the Rule 11 plea colloquy

demonstrates that any claim that Williams's plea was not knowing

or voluntary is baseless. Pursuant to Rule 11(b)(1), the district

court informed Williams that "[w]hen you plead guilty, you give up

some very important constitutional rights." The district court

described that if he went to trial, Williams, through counsel,

"would have the opportunity to cross-examine every Government

witness and to object to any evidence the Government offers against

[him]." (Emphasis added). The district court then stated, "[i]f

I accept your guilty plea, you will have given up your right to a

trial, and all these other important rights I have just described

to you," and asked if Williams understood that proposition.

Williams stated that he did. This exchange further undermines

Williams's argument on appeal that "[t]he record of the Rule 11

- 11 - hearing does not reflect any discussion about whether Mr. Williams

understood that by proceeding he would be waiving the right to

challenge the seizure of evidence."

In an apparent reference to Rule 11(b)(3)'s requirement

that "the [district] court must determine that there is a factual

basis for the plea," Williams's second purported error is that

there was no acceptance on his part that he was speeding, which he

alleges was the probable cause for his traffic stop. Williams

contends that when he did not agree with the prosecution's version

of the facts during the Rule 11 colloquy quoted supra, the district

court should have recognized that there was no factual basis for

the plea and thus should have stopped the Rule 11 proceeding.5

Instead, the court made an "arbitrary choice finding probable

cause" by deciding the factual issue without calling witnesses to

resolve the issue definitively.

The primary problem for Williams's argument is that the

fact he disputes is not an element of the offense to which he pled

guilty. He is not, for example, disputing any facts that comprise

5 In his appellate brief, Williams cites two cases from Maryland that distinguish between an agreed-upon statement of facts and a statement of stipulated evidence in the context of trials by such evidence. See Barnes v. State,

(Md. Ct. Spec. App. 1976); Bruno v. State,

(Md. 1993). Notably, neither of these cases involve guilty pleas. Instead, the defendant in each case went to trial on the basis of an agreed- upon statement of facts, Barnes,

, or on stipulated evidence, Bruno,

. As such, they are inapplicable to our present analysis.

- 12 - an element of the charged offense, such as possession or the intent

to distribute fentanyl and cocaine base. Cf. United States v.

Jiminez,

(1st Cir. 2007) ("Here, [the disputed

fact] was no mere lagniappe but, rather, an essential element of

the charge to which the appellant pleaded. Thus, the factual basis

for the plea had to cover this point." (citation omitted)); United

States v. Negrón-Narváez,

(1st Cir. 2005)

(finding factual basis for plea when element of offense was

contested, then acquiesced to, at Rule 11 hearing).

Williams's argument does not go to the factual basis of

the guilty plea, which is a core concern of Rule 11(b)(3). After

all, Rule 11(b)(3)'s factual basis "requirement serves to ensure

that the defendant's conduct actually corresponds to the charges

lodged against him." Jiminez,

. "It protects 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.'"

(quoting United States v. Ventura–Cruel,

, 59–60 (1st

Cir. 2003)). Speeding does not constitute an essential element of

the charge to which he pled guilty, possession of a controlled

substance with intent to distribute. There are no facts indicating

that Williams's conduct did not correspond to the charge against

him, and Williams advances no argument to that effect. "Though a

district court has an unflagging obligation to assure itself that

- 13 - a guilty plea is grounded on an adequate factual foundation, it

need not gratuitously explore points removed from the elements of

the offense." United States v. Piper,

(1st

Cir. 1994).

Furthermore, when conducting a Rule 11 hearing, the

district court is entitled to rely on the prosecution's uncontested

version of the facts. See Jiminez,

("The facts

relevant to [a factual basis for the plea] may be gleaned either

from the defendant's admissions or from the prosecution's version

of the evidence (to the extent that it is acknowledged by the

defendant)."). The district court's role under Rule 11(b)(3) is

to ensure that there was "an admission, colloquy, proffer, or some

other basis for thinking that the defendant is at least arguably

guilty." United States v. Delgado-Hernández,

(1st

Cir. 2005) (quoting United States v. Gandia-Maysonet,

(1st Cir. 2000)). In making that determination, the district

court is entitled to rely on "government proffers as supported by

credible evidence."

(quoting Gandia-Maysonet,

).

As discussed previously, all of the elements of the offense and

factual basis thereof were admitted by Williams and coincided with

the prosecution's version of the evidence. The speed of the

defendant's vehicle is simply not an element of the offense.

- 14 - B. Motion to Withdraw the Guilty Plea

Williams has another arrow in his quiver, though it

differs only slightly from the arguments addressed supra. In June

2019, prior to the imposition of his sentence, Williams filed a

motion to withdraw his guilty plea. Following an evidentiary

hearing and additional briefing on the issue, the district court

denied the motion. Advancing the same alleged errors as above,

Williams argues that we should reverse the denial of his motion to

withdraw the guilty plea.

1. Standard of Review

When the issue is preserved, "we review the district

court's denial of such a motion solely for abuse of discretion."

United States v. Flete-Garcia,

(1st Cir. 2019);

see also United States v. Gurka,

(1st Cir. 2010).

This discretion may be "somewhat more limited" when one of Rule

11's core concerns is implicated. See United States v. Abbott,

(1st Cir. 2001) (quoting United States v. Raineri,

(1st Cir. 1994)). We review unpreserved arguments

only for plain error. Gurka,

.

Williams concedes that plain error review applies to

this claim because his withdrawal motion before the district court

was based on the purported ineffective assistance of counsel, a

claim he does not raise on appeal. Instead, he now argues that

the basis for withdrawing the guilty plea is the purported error

- 15 - during the Rule 11 hearing. Because Williams is raising a new

ground for withdrawal of the guilty plea that was not raised before

the district court, plain error review likely applies. See United

States v. Mescual-Cruz,

(1st Cir. 2004); Negrón-

Narváez,

. We need not resolve the issue, however,

as Williams's argument fails under either standard. See

Acevedo-Sueros,

.

2. Analysis

Under Rule 11(d)(2)(B), applicable here because Williams

moved to withdraw his guilty plea prior to the imposition of a

sentence, a defendant may withdraw his guilty plea if he "can show

a fair and just reason for requesting the withdrawal." To

determine whether the defendant has so shown, we examine the

following six factors:

(1) whether the plea was knowing and voluntary and in compliance with Rule 11, (2) the strength of the reason for withdrawal, (3) the timing of the motion to withdraw, (4) whether the defendant has a serious claim of actual innocence, (5) whether the parties had reached (or breached) a plea agreement, and (6) whether the government would suffer prejudice if withdrawal is allowed.

United States v. Gardner,

(1st Cir. 2021) (citing

United States v. Tilley,

(1st Cir. 1992)).

Williams argues that his motion to withdraw his guilty

plea should have been granted because, under the first factor, it

was not knowing, voluntary, or in compliance with Rule 11. As

- 16 - advanced in his first argument, Williams argues that at his Rule

11 hearing, he did not know that by pleading guilty, he was waiving

his right to move to suppress the evidence obtained by the state

trooper at the traffic stop. Williams contends that this "variance

from Rule 11 affecting the substantial right to be free from

unreasonable searches and seizures" is a fair and just reason for

withdrawing the guilty plea.

"The question of whether the defendant's guilty plea was

entered voluntarily, intelligently, and knowingly is regarded as

the 'most significant' of the relevant factors." United States v.

Dunfee,

(1st Cir. 2016) (quoting Cotal–Crespo,

). As such, this factor is both the start and end

point of our analysis. As we discussed in greater detail supra,

pretrial motions to suppress are not contemplated under Rule 11 as

a requirement that the district court must inform the defendant of

before accepting a guilty plea. Apart from this argument, Williams

"offers no plausible basis for concluding that he did not fully

understand the charges against him." Flete-Garcia,

. "In the absence of any plausible basis for discounting them,

the district court was 'entitled to give weight to the defendant's

statements at his change-of-plea colloquy.'"

(quoting United

States v. Santiago Miranda,

(1st Cir. 2011)).

Therefore, we decline to disturb the district court's well-

reasoned opinion and order on this point.

- 17 - III. Conclusion

For the foregoing reasons, the denial of Williams's

motion to withdraw his guilty plea and the judgment below are

AFFIRMED.

- 18 -