United States Court of Appeals

For the First Circuit

No. 12-1738

UNITED STATES OF AMERICA,

Appellee,

v.

DOMINGO RAMOS-MEJÍA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Torruella, Selya and Lipez,

Circuit Judges.

Alejandra Bird López on brief for appellant.

Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson

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

Division, and Juan Carlos Reyes-Ramos, Assistant United States

Attorney, on brief for appellee.

July 1, 2013
SELYA, Circuit Judge. Defendant-appellant Domingo RamosMejía asseverates that he did not understand the criminal intent

required as an element of the crime to which he pleaded and that

the district court accepted his guilty plea to that charge without

an adequate factual basis. For these reasons, he urges us to

vitiate his guilty plea. After careful consideration, we reject

the appellant's asseverational array.

The travel of the case is easily traced. A federal grand

jury sitting in the District of Puerto Rico indicted the appellant

on a charge of conspiracy to possess with intent to distribute 5

kilograms or more of cocaine. See 21 U.S.C. §§ 841(a)(1), 846. He

initially maintained his innocence, but later entered into a plea

agreement. In pursuance of that agreement, he pleaded guilty to

conspiracy to possess with intent to distribute at least 3.5 but

less than 5 kilograms of cocaine (a quantity below that originally

charged in the indictment). 

The district court accepted the plea and subsequently

imposed a 78-month incarcerative sentence. This timely appeal

ensued.

Before turning to the meat of this appeal, we pause to

note that the plea agreement contained a waiver-of-appeal

provision. This provision purposed to foreclose any appeal as long

as the district court accepted the plea and sentenced the appellant

in accordance with the plea agreement's terms and recommendations.

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But even though the district court sentenced the

appellant within the parameters of the plea agreement, the waiverof-appeal provision does not pretermit this appeal. Where, as

here, an appeal challenges the validity of the plea itself, a

waiver-of-appeal provision lacks force. See United States v.

Chambers, 710 F.3d 23, 27 (1st Cir. 2013). After all, if a plea is

invalid, the plea agreement (and, thus, the waiver provision

contained within it) disintegrates.

We begin our discussion of the merits with the

abecedarian proposition that a defendant has no absolute right to

withdraw his guilty plea. See United States v. Mercedes Mercedes,

428 F.3d 355, 359 (1st Cir. 2005). When, as in this case, a

defendant seeks for the first time to withdraw his plea in the

court of appeals, his request will be granted only if he can show

that the district court's acceptance of the plea was plainly

erroneous. See United States v. Davila, No. 12-167, 2013 WL

2631064, at *7-8 (June 13, 2013). Plain error review imposes a

heavy burden on the appellant, who must demonstrate: "(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).

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Against this backdrop, we turn to the appellant's

assertion that his plea was not knowing, intelligent, and

voluntary. Federal Rule of Criminal Procedure 11(b)(1)(G) requires

that a district court, before accepting a guilty plea, "must inform

the defendant of, and determine that the defendant understands,

. . . the nature of each charge to which the defendant is

pleading." This rule functions "to ensure that a defendant who

pleads guilty does so with full comprehension of the specific

attributes of the charge and the possible consequences of the

plea." United States v. McDonald, 121 F.3d 7, 11 (1st Cir. 1997).

The charge to which the appellant pleaded guilty involved

conspiracy to possess with intent to distribute drugs. Proof of

such a charge entails proof of the existence of the charged

conspiracy, the defendant's knowledge of it, and his voluntary

participation in it. See United States v. Nelson-Rodriguez, 319

F.3d 12, 27-28 (1st Cir. 2003). A conspiracy charge requires, at

a minimum, the same degree of criminal intent as the underlying

substantive offense. Ingram v. United States, 360 U.S. 672, 678

(1959). It follows that, for guilt to attach in a drug conspiracy

case, a defendant must have conspired knowingly to possess the

drugs with the intent to distribute them. See United States v.

Echeverri, 982 F.2d 675, 677-79 (1st Cir. 1993).

The appellant asserts that, when he entered his plea, he

was unaware that the government had to prove his knowledge of a

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conspiracy to distribute drugs (as opposed to some other

contraband) and his specific intent to effectuate the object of the

conspiracy (distributing drugs). He suggests that the district

court kept him in the dark by failing sufficiently to inform him

about these matters, preferring instead to read the charge from the

indictment and then inquire whether that was what he had done. The

appellant posits that, by charting such a course, the court

violated Rule 11(b)(1)(G).1

In this case, the change-of-plea colloquy, though not a

textbook model, was adequate. In order to satisfy Rule 11, the

district court need not employ a "specific script, a set of magic

words, or even certain types of inquiries." United States v. Ward,

518 F.3d 75, 83 (1st Cir. 2008). Here, the court assured itself of

the defendant's competence to plead, had the prosecutor summarize

both the plea agreement and the government's available proof, and

obtained the appellant's acknowledgment that those summaries were

accurate. The appellant then confirmed to the court his desire

"[t]o plead guilty [to] what [he was] being accused of."

The court made certain that the appellant had read the

indictment and understood both the charge and the terms of the plea

agreement. The court also verified that the appellant had reviewed

these materials with his attorney. Finally, the court read aloud

1 In support, the appellant also invokes the Due Process

Clause, U.S. Const. amend. V. But this reference adds nothing of

substance to his claim and, so, we do not discuss it further.

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the charge limned in the indictment, and the appellant agreed that

he had knowingly participated in that activity.

This, we think, was enough. Rule 11(b)(1)(G) "does not

require the court to explain the technical intricacies of the

charges in the indictment." 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

by reading the charge in the indictment to the defendant and

obtaining his competent acknowledgment that he understands the

charge." United States v. Delgado-Hernández, 420 F.3d 16, 26 (1st

Cir. 2005); see United States v. Corporán-Cuevas, 244 F.3d 199, 203

(1st Cir. 2001).

This is not to say that merely reading the formal charge

will be sufficient in every case. The process through which the

court ensures the defendant's understanding of the charge may vary

depending on the attributes of the particular defendant, the nature

of the specific offense, and the complexity of the attendant

circumstances. See Corporán-Cuevas, 244 F.3d at 203; see also Fed.

R. Crim. P. 11 advisory committee's note. One size does not fit

all.

Here, however, the environmental factors were not

extraordinary. This is a run-of-the-mine case, involving a mature

defendant with a history of gainful employment. The appellant was

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facing only a single charge — and that charge was not a complicated

one. Moreover, the circumstances attendant to the charged crime

were straightforward. Given these considerations, we believe that

a reading of the charge sufficed. See, e.g., United States v.

Ramirez-Benitez, 292 F.3d 22, 27 (1st Cir. 2002).

If more were needed — and we doubt that it is — the

record in this case contains other indicia of the appellant's

appreciation of the elements of the charged crime. The plea

agreement contained a factual narrative that described what the

government said it could prove. It further explained that the

appellant was pleading guilty to "knowingly and intentionally

combining, conspiring, and agreeing with others to . . . possess

with intent to distribute" cocaine.2 The word "cocaine" was

underscored and in bold, making pellucid that the charged

conspiracy was one trafficking in drugs, not other goods. The text

of the plea agreement is relevant to this appeal inasmuch as the

agreement explicitly memorialized the appellant's review of it with

his attorney, his satisfaction with his attorney's representation,

the absence of any coercion, and his "full[] understand[ing]" of

the matters described. Absent good cause — and none is present

2

 Varying from the language of the indictment, the plea

agreement contained a separate stipulation as to drug quantity. 

The stipulation provided that, "for purposes of this plea agreement

[] this defendant shall be accountable for conspiring to possess

with the intent to distribute at least, 3.5 kilograms, but less

than 5 kilograms of cocaine."

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here — a defendant ought to be bound by the statements that he

makes to the district court. See Chambers, 710 F.3d at 29; see

also United States v. Pellerito, 878 F.2d 1535, 1539 (1st Cir.

1989) ("We will not permit a defendant to turn his back on his own

representations to the court merely because it would suit his

convenience to do so.").

This brings us to the appellant's second claim of error. 

He contends that the record fails to establish an adequate factual

basis for the mens rea element of the conspiracy charge. In his

view, the record does not evince either his knowledge that drugs

were involved in the conspiracy or his intent to distribute them. 

The government's proffered facts, he says, establish only that he

was seen in the vicinity of a meeting and, three months later, in

a vehicle loaded with fake drugs.

This claim of error implicates Federal Rule of Criminal

Procedure 11(b)(3), which requires that, "[b]efore entering

judgment on a guilty plea, the court must determine that there is

a factual basis for the plea." This safeguard "serves to ensure

that the defendant's conduct actually corresponds to the charges

lodged against him." United States v. Jiminez, 498 F.3d 82, 86

(1st Cir. 2007).

The necessary showing, however, is fairly modest. To

satisfy the "factual basis" requirement, the evidence need not

conclusively demonstrate guilt beyond a reasonable doubt. See

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United States v. Pimentel, 539 F.3d 26, 29 (1st Cir. 2008). 

Rather, the government need only show a rational basis in fact for

the defendant's guilt. See id.; Delgado-Hernández, 420 F.3d at 27. 

In other words, there must be some "basis for thinking that the

defendant is at least arguably guilty." Delgado-Hernández, 420

F.3d at 27 (internal quotation marks omitted).

To meet the "factual basis" standard, the government is

not required to support every element of the charged crime by

direct evidence. See United States v. Marrero-Rivera, 124 F.3d

342, 352 (1st Cir. 1997). A smoking gun is useful, but not

essential.

Of particular pertinence for present purposes, a court

may infer "[t]he factual predicate for the requisite mens rea

. . . from all the evidence alluded to at the Rule 11 hearing." 

Id.; see Delgado-Hernández, 420 F.3d at 31. "[A]s long as the

government's proffered facts, conceded by the defendant to be true,

touch all the bases, there is a sufficient factual basis for the

tendered plea." Jiminez, 498 F.3d at 87.

In this instance, the facts proffered by the government

at the change-of-plea hearing (and acquiesced in by the appellant)

revealed that the appellant and two accomplices went to a shopping

center parking lot on or about March 1, 2011. While there, one of

the appellant's companions, Rubén Darío Páez-Fontana (Páez), met

with two other individuals to discuss a potential drug shipment. 

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One of these individuals was an undercover Drug Enforcement

Administration (DEA) agent; the other was a confidential source

(CS) working with the DEA. The undercover agent and the CS were

part of a government "sting" operation. During the meeting, Páez

agreed to pay the undercover agent for his help in bringing in by

sea substantial quantities of cocaine and provided sea coordinates

for the exchange point.

After some intervening communications, Páez met again

with the CS. Páez told the CS that, after the drugs were retrieved

at sea and brought to Puerto Rico, he would provide a truck for

land transport. The CS would then stow the drugs in the truck and

return the truck to Páez's henchmen.

The retrieval took place as planned. The CS, accompanied

by undercover law enforcement officers, picked up a load of cocaine

and heroin at the sea coordinates that Páez had provided. Shortly

after the retrievers reached land, the appellant and another of

Páez's associates, Marcelino Medina-Vásquez (Medina), met the CS

with a truck. The CS and his confederates loaded the truck but,

unbeknownst to the appellant and Medina, used ersatz drugs, not the

real drugs that had been retrieved at sea. After the truck was

loaded, the appellant and Medina drove it away, while Páez and a

fourth accomplice followed in another vehicle. In short order, the

authorities stopped both vehicles and arrested all four men.

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These facts were more than adequate to allow the district

court to conclude that the appellant was at least arguably guilty

of participation in the charged conspiracy. Participation in a

drug-trafficking conspiracy can be proved through circumstantial

evidence. See United States v. Bergodere, 40 F.3d 512, 518 (1st

Cir. 1994); Echeverri, 982 F.2d at 677-79. Here, a rational

factfinder could conclude that the appellant was privy to the drugtrafficking scheme. Drug traffickers do not normally bring

innocent parties to clandestine meetings set up to arrange for drug

deliveries, see United States v. Ortiz, 966 F.2d 707, 711-12 (1st

Cir. 1992); see also Echeverri, 982 F.2d at 677-78, and a

factfinder could reasonably infer that the appellant's presence at

the parking lot meeting was culpable. By like token, a factfinder

could reasonably infer that the appellant's role in delivering the

truck for loading — and leaving in it after the loading had been

completed — was carried out with knowledge of the plot. The fact

that only fake drugs were in the truck at the time of the arrest

does not diminish the force of this inference. See United States

v. Sánchez-Berríos, 424 F.3d 65, 77-78 (1st Cir. 2005).

To say more on this point would be to paint the lily. We

conclude, without serious question, that the version of events

proffered at the change-of-plea hearing was ample to ground

inferences that the appellant knew that the conspiracy was

arranging to import drugs and that he intended to facilitate the

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delivery by his role in transporting drugs. The bottom line, then,

is that there was a suitable factual basis for the appellant's

guilty plea.

We need go no further. For the reasons elucidated above,

we discern no error, plain or otherwise, in the district court's

acceptance of the appellant's tendered guilty plea. The appellant

is not, therefore, entitled to withdraw his plea.

Affirmed.

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