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. BauzáAlmonte, Assistant U.S. Attorney, Chief, Appellate Division, and 

Rosa Emilia Rodríguez-Vélez, United States Attorney, on brief for 

appellee. 

 

June 21, 2017 
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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 18 U.S.C. § 924(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 DíazConcepción 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. 
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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 21 U.S.C. § 841(a)(1); and (2) possession of a machine 

gun in furtherance of a drug trafficking crime, in violation of 18 

U.S.C. § 924(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. 
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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 18 U.S.C. 

§ 924(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 18 U.S.C. § 924(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, DíazConcepción 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 
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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 DíazConcepción, 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 DíazConcepción,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." 
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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 DíazConcepción 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 DíazConcepción 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. DíazConcepción 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 
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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, 710 F.3d 23, 27 (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 
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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, DíazConcepción 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, 246 F.3d 56, 60 (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 DíazConcepción 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 
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each charge to which the defendant is pleading." Fed. R. Crim. P. 

11(b)(1)(G); see United States v. Delgado-Hernández, 420 F.3d 16, 

19 (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, 

227 F.3d 1, 3 (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 18 U.S.C. § 924(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 21 U.S.C. § 841(a). 

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

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

721 F.3d 12, 15 (1st Cir. 2013) (quoting United States v. Ward, 

518 F.3d 75, 83 (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. Id. (quoting United States v. Cruz-Rivera, 357 F.3d 10, 

13 (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 
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by reading the charge in the indictment to the defendant and 

obtaining his competent acknowledgment that he understands the 

charge.'" Id. (quoting Delgado-Hernández, 420 F.3d at 26). 

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, 292 F.3d 22, 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 
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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, 

721 F.3d at 15. 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." Id. 
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indictment. "Given these considerations, . . . a reading of the 

charge sufficed." Ramos-Mejía, 721 F.3d at 15. 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, 817 F.3d 838, 842-44 (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 id. at 843-44. 

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, 94 F.3d 9, 13 (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, 747 F.3d 26, 34 
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(1st Cir. 2014). Second, Díaz-Concepción was in possession of a 

loaded machine gun and additional loaded magazines. See id. 

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

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

922 F.2d 910, 912 (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, 586 F.3d 105, 112 

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

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

Bergodere, 40 F.3d 512, 518 (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, 586 F.3d at 

113; United States v. Garner, 338 F.3d 78, 81 (1st Cir. 2003). 

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

had in his possession multiple additional magazines that were also 
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loaded. See Pena, 586 F.3d at 113. Second, the firearm was 

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

waist. See id. 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 id. Finally, in addition to drugs, DíazConcepción was also in possession of a large sum of cash, totaling 

$3,138. See id. The government's proof of a nexus with drug 

trafficking was overwhelming. Cf. United States v. Grace, 367 

F.3d 29, 31 (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, 420 F.3d at 27. 

 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 
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This conclusion is firmly reinforced by the substantial 

benefit Díaz-Concepción received by pleading guilty. See UrbinaRobles, 817 F.3d at 844. 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, 895 F.2d 1, 17 (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, 420 F.3d at 27 (quoting 

Gandia-Maysonet, 227 F.3d at 6).