United States Court of Appeals 

For the First Circuit 

No. 18-1600 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

JOSÉ MERCEDES LEON, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF RHODE ISLAND 

[Hon. John J. McConnell, Jr., U.S. District Judge] 

Before 

Lynch, Selya, and Boudin, 

Circuit Judges. 

 Lisa Aidlin on brief for appellant. 

 Richard B. Myrus, Acting United States Attorney, and Donald 

C. Lockhart, Assistant U.S. Attorney, on brief for appellee. 

April 8, 2019 
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BOUDIN, Circuit Judge. On May 18, 2017, a Rhode Island 

federal grand jury charged José Mercedes Leon ("Mercedes"), a 

citizen of the Dominican Republic, with one count of illegal 

reentry of an alien who had previously been removed from the United 

States, 8 U.S.C. § 1326(a). The indictment charged Mercedes with 

having "knowingly entered and [been] found in the District of Rhode 

Island" on or about May 2, 2017, without having obtained the 

consent of the Attorney General of the United States to return 

notwithstanding his prior order of removal. 

Mercedes had previously been ordered removed from the 

United States on three separate occasions and also had past 

convictions and corresponding prison sentences for drug-related 

offenses, felony assault with a machete, trespassing, and 

resisting arrest. His May 2, 2017, arrest by Immigration and 

Customs Enforcement ("ICE") authorities immediately followed his 

release from state prison in Rhode Island, on the heels of a 

conviction and six-month prison sentence for heroin possession; 

ICE officials compared his fingerprints to those found on prior 

warrants for his removal and discovered a match. 

In due course, Mercedes entered a straight guilty plea 

to the section 1326 charge. Fed. R. Crim. P. 11. At the changeof-plea colloquy, the district court confirmed that Mercedes was 

competent to enter a plea of guilty, that he was "voluntarily 

deciding to change [his] plea to guilty," that he understood it 
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was likely he would be deported again, and that he understood that 

he was admitting to the facts stated by the government as to his 

offense conduct. The court accepted the plea and sentenced 

Mercedes to 29 months' imprisonment and three years of supervised 

release, although the guideline sentencing range was 46-57 months. 

Mercedes now argues on appeal that the district court 

erred in accepting his guilty plea because when he returned to the 

United States in 2011, he was forced into crossing the southern 

border and acting as a drug mule by Los Zetas gang, which had 

kidnapped him in Guatemala; therefore, he claims that he did not 

"voluntarily" re-enter the United States and that his guilty plea 

therefore lacked an adequate basis in fact. See, e.g., United 

States v. Negrón-Narváez, 403 F.3d 33, 37 (1st Cir. 2005). 

Relatedly, he argues that the district court violated Rule 11 by 

not ascertaining with certainty at the change-of-plea colloquy 

whether Mercedes understood the elements of the crime charged, 

Fed. R. Crim. P. 11(b)(1)(G), namely, that in order to be 

convicted, he must have voluntarily re-entered the United States. 

In deciding whether to accept a plea under Rule 11, a 

district court must "ascertain whether the record permits a 

conclusion that the plea has a rational basis in fact." NegrónNarváez, 403 F.3d at 37; see also United States v. DelgadoHernández, 420 F.3d 16, 27 (1st Cir. 2005). The district judge 

must also ensure that the plea was voluntary, knowing, and 
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intelligent, and that the defendant understands the nature of the 

charge to which he is pleading guilty. Fed. R. Crim. P. 

11(b)(1)(G) & (b)(2); see also United States v. Díaz-Concepción, 

860 F.3d 32, 36 (1st Cir. 2017). 

Mercedes concedes that he did not raise his claims of 

error below in connection with his change of plea, and therefore 

our review is for plain error. United States v. Urbina-Robles, 

817 F.3d 838, 842 (1st Cir. 2016). There was no error here, much 

less plain error, in the district court's decision to accept the 

plea or in its determination that Mercedes's guilty plea was 

knowing and intelligent. 

As to the "factual basis for the plea," Fed. R. Crim. P. 

11(b)(3), there was plainly "an admission, colloquy, proffer, or 

some other basis for thinking that the defendant [was] at least 

arguably guilty," United States v. Gandia-Maysonet, 227 F.3d 1, 6 

(1st Cir. 2000). Mercedes was a serial violator of the immigration 

laws and even if he was coerced in 2011 to cross the southern 

border--a matter on which we take no view--he was hardly forced 

into remaining in the United States for six years or forced into 

entering Rhode Island, a non-border state, where he was then 

"found" in 2017. See United States v. DeLeon, 444 F.3d 41, 52 

(1st Cir. 2006) ("Where an alien is indicted under the 'found in' 

prong" of section 1326, "the alien is deemed to have committed the 

offense at the moment he was 'found.'"). 
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With respect to Mercedes' second argument, the 

transcript of Mercedes' change-of-plea hearing is clear on its 

face that the district judge walked Mercedes through the 

consequences of pleading guilty, made sure that he had discussed 

these issues with his attorney, and confirmed that he was knowingly 

and voluntarily pleading guilty. Mercedes's argument to the 

contrary rests on the same flawed premise he advances above--

namely, that his story about his 2011 kidnapping somehow renders 

his having entered and been found in Rhode Island in 2017 

involuntary--and is thus easily dismissed. 

Finally, the argument that Mercedes reentered 

involuntarily in 2011 was not raised until the sentencing phase 

and was urged upon the court by defense counsel as a mitigating 

factor justifying a downward departure or variance from the 

guidelines. The district court was never called upon by defense 

counsel to vacate the plea based on this allegation, nor would the 

court have had any reason to do so in light of the actual 

allegations underpinning the indictment and guilty plea. 

Affirmed.