#### UNITED STATES, Plaintiff, Appellee, v. Carmen RUIZ-DEL VALLE, a/k/a Maria Soto, Defendant, Appellant.

No. 92-1842.

United States Court of Appeals, First Circuit.

Heard Oct. 4, 1993.

Decided Nov. 3, 1993.

*99Lydia Lizarribar-Masini, Hato Rey, PR, for appellant.

Miguel A. Pereira, Asst. U.S. Atty., with whom Charles E. Fitzwilliam, U.S. Atty. and Jose A. Quiles-Espinosa, Sr. Litigation Counsel, Hato Rey, PR, were on brief, for appellee.

Before TORRUELLA, Circuit Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.

BOWNES, Senior Circuit Judge.

After executing a plea agreement, defendant-appellant, Carmen Ruiz del Valle (Ruiz), pled guilty to counts two, five and six of a superseding indictment on January 22, 1992. Counts two and five charged that defendant, along with her common law husband, Arturo Reyes Diaz (Reyes), and Orlando Colón Santiago, with aiding and abetting each other, and with possessing with intent to distribute 5,152 and 3,566 grams of heroin in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Count six charged that defendant and Reyes used and carried firearms during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). This count carries a minimum mandatory sentence of five years.

There are two issues: whether defendant should be allowed to withdraw her guilty plea to the firearms charge (count six); and whether the district court erred in sentencing defendant on the other two counts by adding two points to her base offense level because she played a leadership role in the offense.

*100
      *THE FACTS*

In order to understand the first issue the facts must be related in detail. In the late afternoon of August 25, 1991, a suitcase arrived at the International Airport in San Juan. It had been delivered by an American Airlines flight from the Dominican Republic. Because the suitcase had arrived from a foreign country, it was deposited in the U.S. Customs area for inspection.

The inspecting Customs Officer noted that the suitcase left Kennedy Airport in New York City on August 23 destined for San Juan. By mistake the suitcase was not unloaded at San Juan and was taken to the carrier’s final déstination, the Dominican Republic. The suitcase was returned to San Juan, its original destination, on August 25. The suitcase had an American Airlines claim tag with the name of Maria Soto, and there was a passenger identification tag bearing the same name. Because the suitcase had a strong chemical odor, the Customs Inspector opened it and found seven packages that field-tested positive for heroin. The total amount of heroin weighed 5,152.1 grams. Special Agent Rodolfo Salcedo of the Customs Service was notified.

Agent Salcedo immediately tried to find the owner of the suitcase. He ascertained that an airport baggage handler, Wilfredo Ortiz, had tried to retrieve the suitcase, but was told that only the owner could do so. Ortiz was interviewed by Agent Salcedo and DEA agents. He gave them essentially the following information. On August 25, defendant, accompanied by Reyes and a small child, went to Ortiz’s home. Defendant identified Reyes as her husband. Defendant told Ortiz that an American Airlines employee, whom she had phoned, told her that the suitcase had arrived, She offered Ortiz $15,-000 if he helped her retrieve the suitcase from the Customs area. Defendant then drove Ortiz to the airport, gave him five dollars, and told him that after obtaining the suitcase he was to take a taxi to the Laguna Gardens parking lot where, she and Reyes would be waiting for him. As already noted, Ortiz was unable to obtain the suitcase.

Defendant drove Ortiz back to his residence. During the drive defendant asked Ortiz when his next working day was. Ortiz told her it was Tuesday, August 27. Defendant told Ortiz that she would look for him on that date. Also, during the drive back to Ortiz’s home, Reyes stated that the suitcase contained “seven big eggs” wrapped in plastic containing drugs.

In a subsequent conversation, presumably by telephone, Ortiz told defendant that he knew an American Airlines employee who could retrieve the suitcase for a fee. Defendant said that she would pay Ortiz $15,000, and the American Airlines employee $10,000. Ortiz then asked defendant what was in the suitcase, and defendant told him it contained heroin.

On August 28, DEA Agent Victor Ayala, acting as an undercover agent, was telephoni-cally introduced to defendant as the American Airlines employee who could retrieve the suitcase. During the recorded telephone conversation, defendant agreed to pay Ayala $10,000 for delivering the suitcase. Ayala inquired about the contents of the suitcase and was told that it contained heroin. Defendant and Ayala agreed to meet at-the San Juan Airport so she could give him her baggage claim, ticket.

In the early, afternoon of August 28, defendant and Reyes came to the airport. Agent Ayala, who was accompanied by Ortiz, was given a baggage claim ticket with the name “Soto/Maria.” Defendant told Ayala not to worry about his money, that it was secure. Ayala told defendant that she would be called as soon as he obtained the suitcase. About three hours later Ayala called defendant and told her that he had the suitcase. This telephone call was recorded. Defendant talked to Ortiz and told him that her husband and another person would pick up the suitcase and deliver the money. Defendant also talked to Ayala and told him that if he was a cop, she would chop his head off.

About two and a half hours later there was another recorded telephone call between Ayala and defendant. At the start of the phone call defendant told Ayala that the money man had just arrived and to call back in two minutes. This was done, and the second phone call was duly recorded. It was *101agreed that defendant would pay Ayala the $10,000 and pick up the suitcase the next day about 10:30 a.m. The exchange of money for the suitcase was to take place in front of Wendy’s Restaurant at the airport.

The next day, at about 10:45 a.m., the other two defendants named in the indictment, Reyes and Colón, pulled up and parked in front of Wendy’s as agreed. Reyes was driving. Colón got out of the car and gave Agent Ayala a bag in which there was a twelve-can container of Pepsi Cola with six cans of Pepsi and $10,000 in cash. Colón told Agent Ayala to put the suitcase on the back seat of the car. After this was done, Colón was arrested. Reyes tried to flee by driving away. After a three minute chase, he was stopped and arrested. During his attempted flight, Reyes threw the suitcase out of the window of the car.

The next day, August 29, at about 7:35 p.m., Customs and DEA agents, acting pursuant to a duly authorized warrant, searched the condominium apartment held in the name of defendant and jointly occupied by her and Reyes. No one was in the apartment at the time of the search. Found in the apartment and seized were 3,566 grams of heroin, assorted drug paraphernalia, including scales and three weapons with the ammunition necessary for their use. The firearms were a twelve-gauge shotgun, altered to make it a hand-held weapon, a Winchester rifle, model 94, and a pistol.

*PROCEDURAL HISTORY*

As already noted, defendant pled guilty on January 22, 1992. She was sentenced on June 15, 1992, and filed a notice of appeal from the sentencing on June 19.

Unlike defendant Ruiz, her husband, Reyes, opted for a bench trial. For reasons that will become apparent, the record of that trial is part of the record in this case. Reyes was tried on August 20, 1992, on counts one, two, five, six, seven, and eight. Count one charged conspiracy with intent to distribute multi-kilo quantities of heroin; counts two and five charged possession with intent to distribute the same multi-kilo amounts of heroin. Counts six, seven, and eight were firearms counts charging violations of 18 U.S.C. § 924(c)(1). These counts carried minimum mandatory sentences of five years.

Reyes did not plead guilty to counts one, two, and five, but neither did he contest them. His entire defense was concentrated on the firearms counts. On this he was successful. The same district court judge who accepted defendant’s guilty pleas presided at the bench trial of her husband. Because it is important to our resolution of this case we quote the pertinent portion of the district court’s rulings and findings in the case against Reyes:

> It is clear from the cases which have just been summarized that the objective of 924(c)(1) is to penalize drug transactions which could easily escalate into violence. Such is not the situation at hand. It may be true that the firearms were located at the apartment for the purpose of protecting a drug business which was admittedly conducted in the apartment, but the mere presence of firearms is not sufficient for a conviction, for there must be a nexus between the firearm and the facilitation of the transaction at issue.

> The defendant did not arrange to meet the undercover agent at the apartment; they met at the airport. At the time of the search the apartment was vacant and no drug business was being conducted.

> There are other firearm statutes whose purpose is to deter the possession of firearms without a permit. Section 924(c)(1) was not drafted for that purpose.

> Even though the defendant has also been charged with a conspiracy to distribute a controlled substance, the existence of such a conspiracy is not sufficient to support a conviction for a firearm which was not proven to be part of the commission of the felony. *United States v. Pietri,*683 F.2d 877, Fifth Circuit 1982 (sufficient evidence to support convictions where conspirators met with undercover agent with revolver concealed in pant leg).

> Wherefore, in view of the foregoing, the Court hereby finds that there is insufficient evidence for convictions as to Counts Six, Seven and Eight, which are the firearms counts.

*102
      *United States v. Reyes Diaz,*797 F.Supp. 96, 97 (D. Puerto Rico 1992).

On October 9, 1992, defendant Ruiz moved in the district court to withdraw her guilty plea on count six, the firearms charge. The district court quite properly ruled that it lacked jurisdiction to entertain such a motion. Fed.R.Crim.P. 32(d) provides, that, after sentencing, “a plea may be set aside only on direct appeal or by motion under 28 U.S.C. § 2255.” Because in her notice of appeal defendant Ruiz questioned the evidentiary basis for her plea of guilty to the firearms count, the issue whether she should be allowed to withdraw her guilty plea to that count is properly before us, as the government concedes.1

*ANALYSIS*

We start with the Rule 11 plea hearing. Although defendant has not directly attacked the manner in which the plea hearing was conducted, an examination of the plea hearing is logically the first step in the review process. This is so even if a claim of non-compliance with Rule 11 was not presented to the trial court. *United States v. Parra-Ibanez,*936 F.2d 588, 593 (1st Cir.1991). In *United States v. Padin-Torres,*988 F.2d 280 (1st Cir.1993) we noted, citing to *Parra-Ibanez:*“Rule 11 objections, so far as they affect the ‘knowing’ character of the plea are treated with extra solicitude.” *See also United States v. Mateo,*950 F.2d 44, 45 (1st Cir.1991) (a Rule 11 challenge will not be considered waived since Rule 11 protects not only rights of the defendant but also the “ ‘fairness, integrity [and] public reputation of judicial proceedings.’ ”). In *United States v. Daniels,*821 F.2d 76, 81 (1st Cir.1987), we noted that, because the “fairness, integrity [and] public reputation of judicial proceedings” is at stake in Rule 11 proceedings, appellate courts have sometimes considered Rule 11 violations *sua sponte.*

There are certain basic duties that a district court must fulfill in conducting a Rule 11 hearing. Under the Rule, the court must address the defendant personally and determine that the defendant understands the nature of the charges to which the plea is offered. Fed.R.Crim.P. 11(c)(1). The Supreme Court in commenting on the requirements of Rule 11 has stated:

> Thus, in addition to directing the judge to inquire into the defendant’s understanding of the nature of the charge and the consequences of his plea, Rule 11 also requires the judge to satisfy himself that there is a factual basis for the plea. The judge must determine “that the conduct which the defendant admits constitutes the offense charged in the indictment or information or an offense included therein to which the defendant has pleaded guilty.” Requiring this examination of the relation between the law and the acts the defendant admits having committed is designed to “protect 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.”

*McCarthy v. United States,*394 U.S. 459, 467, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969) (quoting Fed.R.Crim.P. 11, advisory committee’s note).

Our cases stress that the district court must make sure that the plea is voluntary and that the defendant understands the charges against her. In *Mack v. United States,*635 F.2d 20, 25 (1st Cir.1980), we stated: “Insuring that the plea is *truly*voluntary means that the court must resolve all doubts and questions arising about the guilty plea.” It is axiomatic that the procedures followed by the district court in accepting a plea are crucial in later determining whether the plea was truly understanding and voluntary. *United States v. Kobrosky,*711 F.2d 449, 455 (1st Cir.1983). In *United States v. Allard,*926 F.2d 1237, 1245 (1st Cir.1991), we pointed out: “The plain language of the rule [Fed.R.Crim.P. 11(c) ] requires the court both to inform the defendant of the nature of the charge and make a determination that he understands it.”

*103In reviewing the record of a change of plea hearing, we bear in mind that there is no “talismanie test” for determining compliance with the requirements of the rule. “We must look at the circumstances of the case to determine whether the district court informed the defendant of the charges, and determined that the defendant understood them.” *United States v. Zorrilla,*982 F.2d 28, 30 (1st Cir.1992), *cert. denied,*— U.S. -, 113 S.Ct. 1665, 123 L.Ed.2d 283 (1993).

We find the change of plea hearing as to the firearms count, which is the only one at issue, defective for two reasons. First, the charge was not read to defendant, nor was it explained to her by the court. It is true that both defendant and her attorney assured the court that she understood all of the charges against her. But this does not excuse the judge from personally explaining the charges to the defendant and then questioning her to be sure that she understands them. This was especially so here because in its outline of the evidence the government alluded only once to the firearms count. The prosecutor stated: “Subsequently, a search of the defendant Ruiz Del Valle’s apartment produced three weapons and additional heroin in the amount of 3,566 grams.” This is hardly sufficient to explain the firearms count.

The second reason we think the plea hearing violated Rule 11 was that the court was, or should have been, put on notice by a statement by the defendant that she either did not understand the firearms charge or felt that the presence of a weapon in her apartment was not a crime. The statement made by defendant was: “I knew that there was a weapon in the room, but I did not buy that weapon and I did not use it.” Beyond ascertaining that the word “room” meant defendant’s apartment, no further inquiry was made. The court’s failure to inquire of defendant and the prosecutor about the firearms charge was of special significance here because the court later decided on facts that were identical that there was insufficient evidence for conviction of defendant’s husband on the firearms charges. In fact, the defendant’s statement that she did not buy the weapon or use it, should have, under the court’s rationale in the husband’s case, prompted the court to refuse to accept defendant’s plea on the firearms count.

We wish to make it clear that we are not passing on the legal or factual correctness of the district court’s opinion. For purposes of this appeal we consider the opinion only because it reflects the understanding of the judge as to whether the evidence was sufficient for a conviction on the firearms count. He found that it was not. His understanding of the requirements of 18 U.S.C. § 924(c)(1) was that “the mere presence of firearms is not sufficient for a conviction, for there must be a nexus between the firearm and the facilitation of the transaction at issue.” The court also found it material that “[A]t the time of the search the apartment was vacant and no drug business was being conducted.” Finally, the court held:

> Even though the defendant has also been charged with a conspiracy to distribute a controlled substance, the existence of such a conspiracy is not sufficient to support a conviction for a firearm which was not proven to be part of the commission of the felony.

Our review of the record in defendant’s case and the trial transcript in her husband’s case convinces us that as far as the firearms counts are concerned both defendant and her husband stood on equal footing. Both of them occupied the condominium apartment, although it was in defendant’s name. There was no evidence as to who owned the weapons found in the apartment. Reyes did not testify at his bench trial. We emphasize that the judge who accepted defendant’s guilty pleas was the same one who later found her husband not guilty on the firearms counts. We can only conclude that if defendant had gone to trial, as her husband did, that she would also have been found not guilty.

The question for the appellate court on a direct appeal of a post-sentence request for a plea withdrawal is whether there has been a miscarriage of justice. *United States v. Allard,*926 F.2d at 1243. Or to put another cast on it, was there “an omission inconsistent with the rudimentary demands of fair procedure”? *United States v. Japa,*994 F.2d*104899, 904 (1st Cir.1993). *See also Hill v. United States,*368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962).

We conclude that defendant should be allowed to withdraw her plea for two reasons: the court’s failure to follow the requirements of Rule 11 violated the demands of fair procedure; and the court’s subsequent findings and rulings in the husband’s case makes the imposition of the minimum mandatory sentence of five years for the firearms count a miscarriage of justice in defendant’s case.

This holding is based on the unique facts of this case. We are not suggesting that where one defendant has pled guilty and the other defendant goes to trial and is acquitted, that the pleading defendant has a basis for withdrawing her plea. In this case, there probably would have been no motion by defendant to withdraw her plea were it not for the district court’s decision on the firearms charges in her husband’s case. The reason, however, for allowing defendant to withdraw her plea was not the court’s decision in her husband’s case; the reason was the district court’s failure to follow the mandate of Rule 11 in accepting defendant’s plea to the firearms count.

We must warn defendant, as we did her counsel at oral argument, that the withdrawal of her guilty plea on the firearms count is not a guarantee of acquittal on that count. All that defendant is entitled to is a new trial on the firearms count. New facts may emerge and different legal rulings may be made. We specifically point out that under 18 U.S.C. § 924(c)(1) if the firearm is a “short-barreled rifle” or a “short-barreled shotgun,” the minimum mandatory sentence is ten years. We do not know whether the rifle or shotgun found in defendant’s apartment fall within this category and only bring this to defendant’s attention.

*LEADERSHIP ROLE DETERMINATION*

The other issue is a challenge to the court’s finding that defendant played a leadership role in the thwarted attempt to possess and distribute heroin. Because “role in the offense” determinations are fact-bound, the standard of review is clear error. *United States v. Rodriguez Alvarado,*985 F.2d 15, 19 (1st Cir.1993); *United States v. Schultz,*970 F.2d 960, 963-64 (1st Cir.1992), *cert. denied,*— U.S. -, 113 S.Ct. 1020, 122 L.Ed.2d 167 (1993); *United States v. Sostre,*967 F.2d 728, 732 (1st Cir.1992). We find that the district court did not commit clear error in finding that defendant was the leader in the scheme. The evidence from which such a finding could be made can be summarized as follows: defendant was the one who contacted Ortiz in an attempt to retrieve the suitcase; the suitcase claim ticket was in the name of Maria Soto, an obvious alias; defendant was the one who offered to pay Ortiz $15,000 for retrieving the suitcase from the Customs area; and defendant was the one who negotiated with undercover Agent Ayala about recovering the suitcase.

The leadership role finding of the district court and the upwards adjustment to the base offense is affirmed.

*CONCLUSION*

1. Defendant may withdraw her guilty plea on the firearms count.

2. The sentence of the defendant on the drug counts is affirmed.

. The government's statement of issue one is:

> I. Whether Appellant's Request to Withdraw Her Voluntary Plea of Guilty to Count Six of the Superseding Indictment Should be Granted.