United States Court of Appeals

For the First Circuit

No. 07-1512

UNITED STATES OF AMERICA,

Appellee,

v.

PEDRO PIMENTEL,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Lynch, Chief Judge,

Torruella and Lipez, Circuit Judges.

Luis A. Guzmán-Dupont, for appellant.

Thomas F. Klumper, Assistant United States Attorney, with whom

Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson

Pérez-Sosa, Assistant United States Attorney, Chief, Appellate

Division, were on brief for appellee.

August 21, 2008
-2-

TORRUELLA, Circuit Judge. Pedro Pimentel was indicted on

six counts of conspiracy to import with the intent to distribute

drugs into the United States. He pled guilty on five counts, and

he was sentenced to a total of 180 months' imprisonment. Pimentel

argues that the district court erred in accepting his plea because

there was no factual basis for it. He also argues that the

district court erred by not properly instructed him as to Count

Five. After careful consideration, we affirm Pimentel's conviction

and the district court's judgment.

I. Background

Pimentel, a citizen of the Dominican Republic, was

indicted, along with ten co-defendants, for conspiracy and other

drug-trafficking-related crimes. The Government had evidence that

on March 15, 2005, Pimentel met with other persons in Isla Verde,

Puerto Rico to coordinate shipments of drugs into the United States

from the Dominican Republic; two weeks later, Pimentel met with one

of his co-defendants and other persons in the Dominican Republic to

coordinate the importation of cocaine into the United States. The

Government also had evidence of Pimentel and his co-defendants'

involvement with drugs shipped in June and September of 2005.

Pimentel was arrested on October 27, 2005, by the Drug

Enforcement Administration as he attempted to pick up the drug

shipments. He was indicted for conspiracy to import into the

United States over five kilograms of cocaine, conspiracy to possess
-3-

with the intent to distribute over five kilograms of cocaine,

aiding and abetting in the possession of a weapon in furtherance of

a drug trafficking offense, distribution of a detectable amount of

heroin, and a forfeiture count -- all in violation of 21 U.S.C.

§§ 963, 841(a)(1), 846, and 853(p) and 18 U.S.C. §§ 924(c)(1)(A)

and 2, respectively. On October 5, 2006, he entered a straight

plea on Counts One through Five of the superseding indictment. He

was sentenced on February 28, 2007, to 120 months' imprisonment on

Counts One, Two, Three, and Five, to be served concurrently. Count

Six was a forfeiture allegation. He was sentenced to sixty months'

imprisonment as to Count Four, to be served consecutively to Counts

One, Two, Three, and Five, for a total prison term of 180 months.

The court imposed a supervised release term of five years on Counts

One, Two, Three, and Five, to be served concurrently. The court

also imposed a special monetary assessment of $100.00 on each count

for a total of $500.00. Pimentel appeals his plea and the

conviction as to Count Five.

II. Discussion

A. Standard of Review

Pimentel did not object to the alleged errors below;

thus, we will reverse only upon a showing of plain error. See

United States v. Rodríguez-León, 402 F.3d 17, 22-23 (1st Cir. 2005)

(citing United States v. Olano, 507 U.S. 725, 732 (1993)). To

satisfy the plain error standard, the defendant must show (1) an
-4-

error (2) that was "'clear and obvious,'" (3) which affected his

substantial rights, and (4) seriously undermined the "'fairness,

integrity, or public reputation of judicial proceedings.'" United

States v. Jimínez, 498 F.3d 82, 85 (1st Cir. 2007) (quoting United

States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)). The burden is

on the defendant to demonstrate that the outcome would likely have

been different if the error had not occurred. See United States v.

Mescual-Cruz, 387 F.3d 1, 7 (1st Cir. 2004). Pimentel "can prevail

. . . only if he demonstrates a substantial defect in the Rule 11

proceeding itself." United States v. Piper, 35 F.3d 611, 613-14

(1st Cir. 1994) (citing United States v. Mateo, 950 F.2d 44, 45

(1st Cir. 1991) and United States v. Parra-Ibáñez, 936 F.2d 588,

593-94 (1st Cir. 1991)).

B. Rule 11

Pimentel argues that his guilty plea was not given

voluntarily, willingly, or intelligently, and is, therefore,

invalid. See United States v. Pizarro-Berríos, 448 F.3d 1, 4 (1st

Cir. 2006). He also argues that he made a statement at his

sentencing hearing that was an assertion of his innocence. The

record does not support these arguments.

Rule 11 "establishes a procedure for district courts to

ensure that a plea of guilty is constitutionally valid." United

States v. Medina-Román, 376 F.3d 1, 2 (1st Cir. 2004). "Before the

court accepts a plea of guilty . . . the defendant [is] placed
-5-

under oath, and the court must address the defendant personally in

open court." Fed. R. Crim. P. 11(b)(1). The district court then

informs the defendant of his rights and makes a determination that

the defendant understands his rights. See id. Rule 11 has three

core concerns that guide our review of whether a plea meets its

requirements: "(1) absence of coercion, (2) understanding of the

charges, and (3) knowledge of the consequences of the plea."

Rodríguez-León, 402 F.3d at 24 (citing United States v. Isom, 85

F.3d 831, 835 (1st Cir. 1996)).

Rule 11 also requires the district court to determine

whether there is a factual basis for a guilty plea. See Fed. R.

Crim. P. 11(b)(3); United States v. Skerret-Ortega, 529 F.3d 33, 38

(1st Cir. 2008). "When determining whether a sufficient factual

basis exists to support a guilty plea, the question before the

court 'is . . . whether there is enough evidence so that the plea

has a rational basis in facts that the defendant concedes or that

the government proffers as supported by credible evidence.'"

United States v. Delgado-Hernández, 420 F.3d 16, 27 (1st Cir. 2005)

(quoting United States v. Gandía-Maysonet, 227 F.3d 1, 6 (1st Cir.

2000)). The district court need not be convinced beyond a

reasonable doubt that an accused is guilty. See Skerret-Ortega,

529 F.3d at 38.

We have repeatedly said that for the acceptance of a

guilty plea to be valid under Rule 11, the plea colloquy need not
-6-

be perfect. See United States v. Padilla-Galarza, 351 F.3d 594,

598 (1st Cir. 2003); United States v. Cotal-Crespo, 47 F.3d 1, 4-5

(1st Cir. 1995) ("What is critical is the substance of what was

communicated by the trial court, and what should reasonably have

been understood by the defendant, rather than the form of the

communication."); United States v. Raineri, 42 F.3d 36, 45 (1st

Cir. 1994). Pimentel's attempted retraction after his guilty plea

also faces a high hurdle on appeal because he has "no absolute

right to retract his plea." United States v. Pellerito, 878 F.2d

1535, 1537 (1st Cir. 1989) (citations omitted); see also

Miranda-González v. United States, 181 F.3d 164, 165 (1st Cir.

1999).

The record indicates that although Pimentel was initially

hesitant about the plea, the court adequately advised him on five

separate occasions that he had an absolute right not to plead

guilty and to go to trial. In response to his unease, the

Government advised the court that it had an undercover police

officer who would testify at trial regarding Pimentel's involvement

in the crimes he was charged with committing. After speaking with

his counsel, Pimentel determined that he would plead guilty. At

the change-of-plea ("COP") hearing Pimentel also acknowledged that

he was not forced, coerced, or intimidated into pleading guilty and

that he was satisfied with his counsel's representation. At the

sentencing hearing, Pimentel did not request the withdrawal of his
-7-

guilty plea, though he did express some concerns. He claimed that

there was an alleged missing tape-recording that could reflect that

he was not willing to take part in the conspiracy. He also claimed

that the drugs and firearms seized during the arrest did not belong

to him.

After Pimentel made those claims, the district court

advised him that he was not charged as the owner of the drugs or

the weapon, but that he was charged with conspiracy. The district

court determined that Pimentel's claims of exculpatory evidence

lacked credibility because he had previously admitted to the

conspiracy and admitted that there was a gun in the vehicle when he

went with his co-defendant to pick up the drugs. Pimentel's lawyer

also ensured the district court that the Government had provided

Pimentel with all of the video and audio evidence that was

available. Pimentel does not contest the fact that he was involved

in picking up the drugs or that his co-defendant possessed a

firearm during the commission of the drug offense. When the

Government presented facts at the COP hearing in relation to the

drug and firearms offenses, Pimentel admitted to the court that he

agreed to the factual proffer presented by the Government. From

our reading of the record, the district court did indeed inform

Pimentel of his rights under Rule 11.

Pimentel argues that the district court did not inform

him of the overt acts in the counts on which he was pleading.
-8-

Overt acts, however, are not elements of drug conspiracy offenses,

and the district court was not required to cite or address them in

its explanation of the conspiracy charges. See United States v.

Shabani, 513 U.S. 10, 13-14 (1994); United States v. Vega-Figueroa,

234 F.3d 744, 754 (1st Cir. 2000). Furthermore, the Government

need not prove overt acts in order to convict a defendant of a drug

conspiracy offense. See United States v. Bello-Pérez, 977 F.2d

664, 669 (1st Cir. 1992) ("The government is not required to plead

or prove any overt act in furtherance of a section 846

conspiracy."). The district court adequately and fully advised

Pimentel concerning the nature of the five offenses charged in the

superseding indictment; Pimentel acknowledged that he had discussed

the charges with his attorney, understood the allegations, and

chose to plead guilty.

Pimentel also argues that the district court failed to

advise him of his rights under Rule 11(b)(1)(A). When the district

court accepts a plea agreement, it must advise a defendant that the

Government has a "right, in a prosecution for perjury or false

statement, to use against the defendant any statement that the

defendant gives under oath." Fed. R. Crim. P. 11(b)(1)(A). The

district court did not advise. But in United States v. Vonn, 535

U.S. 55 (2002), the Supreme Court determined that when a defendant

fails to object to a Rule 11 error in a trial court's guilty plea

colloquy, the error is only reversible upon a showing that such
-9-

error was plain and affected the defendant's substantial rights,

instead of the harmless error standard stated in Rule 11(h). Id.

at 59; see also United States v. Borrero-Acevedo, 533 F.3d 11, 15

(1st Cir. 2008). When determining whether a defendant's

substantial rights were affected, we "consult the whole record."

Vonn, 535 U.S. at 59. Pimentel failed to argue or present facts on

appeal that his rights were substantially affected by the court's

error. This argument is therefore waived. See United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

1. Count Five

The Government acknowledges that the district court erred

with respect to Count Five because it did not advise Pimentel of

the proper statutory penalty. The district court should have

advised Pimentel of the proper penalty but addressed Count Five

like the other drug offenses. The Government asserts, though, that

Pimentel fails to argue that his substantial rights were affected;

nor can he show that his substantial rights were affected. We

agree. The error made no difference in Pimentel's sentence. He

received the fifteen years' imprisonment that the Government said

it would recommend. See United States v. King, 234 F.3d 126, 127

(2d Cir. 2000) ("[W]e have only reversed a judgment of conviction

for a violation of Rule 11(e)(2) when the defendant received a

higher sentence than that recommended by the government, or when

there were other factors to 'tip the scale' in favor of reversal.")
-10-

(citation omitted). The district court and Pimentel's lawyer

advised him of the sentence range. The record reflects that

Pimentel acknowledged his understanding of his possible sentence.

He then received that sentence. Therefore, his claim as to Count

Five fails.

C. Rejecting Guilty Plea Before Sentencing

Pimentel argues that entering a guilty plea does not

waive any challenges he might have to the acceptance of the plea.

Rule 11 allows a defendant to withdraw a guilty plea, for any

reason, "after the court accepts the plea, but before it imposes

sentence if, the defendant can show a fair and just reason for

requesting the withdrawal." Fed. R. Crim. P. 11(d)(2)(B).

Pimentel admits that he did not file a motion to withdraw his

guilty plea before sentencing. His claim therefore is without

merit, and we need go no further.

D. Conviction for "Detectable Amount of Heroin"

Finally, Pimentel argues that his conviction under 21

U.S.C. § 841(a)(1) involving a mixture or substance containing a

detectable amount of heroin, without more, was entered for an

offense for which there is no Sentencing Guideline. He argues that

the indictment is unreasonable and plain error because it did not

contain a specific weight of heroin and should be declared invalid.

He maintains that the conviction under Count Five without a

specific weight of heroin is plain error. Although the D.C.
-11-

Circuit has held that a related subsection of § 841 "contains no

threshold drug-quantity requirement and, therefore, it was not

error to indict [the defendant] for possessing 'a detectable

amount' but omit mention of the specific quantity," United States

v. Gillespie, 436 F.3d 272, 276 (D.C. Cir. 2006), we do not need to

decide this issue today because Pimentel did not properly raise

this argument in the district court.

Federal Rule of Criminal Procedure 12(b)(3) requires that

a claim that an indictment has a "defect," such as being

insufficiently specific, be raised prior to trial. Fed. R. Crim.

P. 12(b)(3)(B); see also United States v. DiGregorio, 605 F.2d

1184, 1193 n.10 (1st Cir. 1979). If the claimed defect is not

jurisdictional, the defendant's failure to raise the Rule 12(b)(3)

claim constitutes a waiver from which this Court will grant relief

only for good cause. See Fed. R. Crim. P. 12(e); United States v.

Mack, 892 F.2d 134, 136 (1st Cir. 1989).

The alleged error is not a jurisdictional defect because

the district court has subject matter jurisdiction over "all

offenses against the laws of the United States." 18 U.S.C. § 3231;

United States v. Lussier, 929 F.2d 25, 27 (1st Cir. 1991). This

category of offenses includes crimes defined in Title 21. See 21

U.S.C. § 841. The Supreme Court has determined that indictment

defects are not jurisdictional, and thus, the omission of specific

drug quantities in a 21 U.S.C. § 846 drug conspiracy offense was
-12-

not a jurisdictional defect. United States v. Cotton, 535 U.S.

625, 631 (2002); see also United States v. López, 300 F.3d 46, 59

n.5 (1st Cir. 2002). Moreover, we have previously held that drug

quantity is not an element of a § 841 offense. See United States

v. Malouf, 466 F.3d 21, 26 (1st Cir. 2006); United States v.

Goodine, 326 F.3d 26, 32 (1st Cir. 2003). The failure to state the

specific drug quantity affects only the maximum punishment possible

for the offense and not the offense charged. See 21 U.S.C.

§ 841(b); Goodine, 326 F.3d at 32-33. Pimentel's claim, therefore,

is without merit.

III. Conclusion

For the reasons stated above, we affirm the guilty plea

and the conviction as to Count Five.

Affirmed.