United States Court of Appeals

For the First Circuit

No. 99-1971

UNITED STATES OF AMERICA,

Appellee,

v.

BRIAN M. HOYLE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Frank H. Freedman, U.S. District Judge]

Before

 Boudin, Circuit Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

Peter F. Kuntz for appellant.

Todd E. Newhouse, Assistant United States Attorney, with

whom Donald K. Stern, United States Attorney, was on brief for

appellee. 

January 8, 2001
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BOWNES, Senior Circuit Judge. In this appeal, the

defendant-appellant, Brian Hoyle, attempts to reverse the

judgment of conviction that followed his guilty plea. He

further argues that if the conviction is affirmed, his case

should be remanded for resentencing with new counsel.

Determining that the district court did not err when it accepted

the defendant's guilty plea and that the defendant was not the

victim of ineffective assistance of counsel during sentencing,

we affirm the district court.

I.

We recount the facts as set forth in the Pre-Sentence

Report (PSR). This rehearsal of the facts does not, of course,

cover the facts that are applicable only to other defendants.

On April 21, 1995, a grand jury returned an eight-count

indictment charging Rex W. Cunningham, Jr., Brian Hoyle and

Thomas Ferris. Cunningham was charged in all eight counts of

the indictment. Ferris and Hoyle were only charged in count

seven.

Cunningham is an associate of the Genovese Crime Family

and was involved in loansharking, racketeering, operating an

illegal gambling business and unlawful debt collection. Ferris

is a licensed electrician and a longtime friend of Cunningham.

He was well-aware of Cunningham's reputation as a loanshark
-3-

collector who used threats and violence to collect usurious

loans and gambling debts. In June of 1992, Ferris asked

Cunningham to send his loanshark collectors to visit several

individuals who had contracted for his services, but had not

paid in full. Each customer had been charged an exorbitant

amount for the work performed and disputed the amount owed.

Ferris responded by getting Cunningham involved to collect the

full amount, to which Cunningham added twenty-five percent for

his collection efforts. 

On June 11, 1992, the government intercepted a

conversation between Cunningham and Hoyle in which they

discussed the list of Ferris's customers and the extortionate

means to be used in order to get the customers to pay. The PSR

recounts, from testimony given at Ferris's trial, the details of

the dealings between Ferris and his customers and the subsequent

collection efforts.

Hoyle was only charged with count seven of the

indictment: conspiring to use extortionate means to collect

extensions of credit in violation of 18 U.S.C. § 894. Count

seven charges that from June of 1992, until November of 1992,

Cunningham, Hoyle and Ferris conspired with each other and

others to participate in the use of extortionate means to

collect and attempt to collect extensions of credit. 
-4-

On January 28, 1998, the defendant entered into a plea

agreement with the government under Federal Rule of Criminal

Procedure 11(e)(1)(C). Pursuant to the agreement, the defendant

expected a sentence of 48 months in prison. At the Rule 11

hearing, the district court asked the defendant a series of

questions before accepting his guilty plea:

THE COURT: Have you told your lawyer the

whole story without concealing any facts

from him?

THE DEFENDANT: Yes, I have.

* * * *

THE COURT: Has your attorney advised you

about the nature of the charge against you,

and any possible defense you may have?

THE DEFENDANT: Yes, he has.

* * * *

THE COURT: Is your plea of guilty entirely

free and voluntary?

THE DEFENDANT: Yes, it is.

Afer reading count seven of the indictment in its entirety, the

court asked:

THE COURT: . . . Are you pleading guilty

because you did, in fact, do the acts

charged in Count 7 of the Indictment?

THE DEFENDANT: Yes, I am.

THE COURT: Do you know of any reason why

the court should not accept your plea of

guilty?
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THE DEFENDANT: No, sir.

* * * *

THE COURT: Do you feel that you have had

sufficient time to discuss this matter fully

with your attorney before entering your plea

of guilty today?

THE DEFENDANT: Yes, sir.

* * * *

The court then entered into a dialogue along similar lines with

the defendant's attorney. Thereafter, the government recited

the factual basis for the plea.

After discussion between the attorneys, the defendant

and the court, the court accepted the defendant's plea of

guilty:

THE CLERK: How do you plead to Count 7 of

the Indictment, guilty or not guilty?

THE DEFENDANT: Guilty.

THE CLERK: You may be seated.

THE COURT: The court having questioned the

defendant Brian Hoyle and his counsel in his

offer of a plea of guilty, the defendant and

his counsel having advised the court they

have conferred concerning the offer of the

plea of guilty and all aspects of the

charges against the defendant, and any

defenses he may have, and the court having

observed the defendant in making his

answers, and his demeanor and manner, his

intelligence and attitude, and the court

having observed the defendant does not

appear to be under the influence of any

medicine, drugs or other substance that may
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affect his judgment in any matter; the court

finds that the offer of a plea of guilty of

the defendant to Count 7 of the Indictment

has a factual basis, is free of any coercive

influence of any kind, is voluntarily made

with full knowledge of the charge against

him and the consequences of his plea, and

there have been no promises of any kind made

by anyone, and no threats or coercion have

been exerted upon the defendant in any

manner. 

* * * *

It is therefore ordered the plea of

the defendant Brian Hoyle to Count 7 of the

Indictment be accepted and entered.

Thereafter, the probation department learned of a prior

conviction for possession of marijuana with intent to

distribute. Based on that new fact, the defendant would be

classified as a career criminal and would receive a sentence of

substantially longer than the agreed-upon 48 months. Therefore,

the defendant withdrew his January 28 guilty plea.

On May 1, 1998, the defendant pled guilty a second

time. The colloquy was much the same as it was on January 28,

and the government again laid out the factual basis for the plea

agreement:

Had this case gone to trial against

the defendant, Your Honor, the United States

would have introduced evidence including

witness testimony, electronic surveillance,

tapes, as well as records from various

businesses.
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In essence, Judge, the trial would

have boiled down to a tape [that] would be

played in which a conversation on June 9,

1992 which occurred inside Dillon's Tavern

between Rex Cunningham and Thomas Ferris.

Thomas Ferris asked Mr. Cunningham to

have individuals collect by use of an

extortionate means, that being fear,

threats, intimidation and unnatural

violence.

Mr. Ferris wanted money collected from

four individuals that had contracted with

him in Mr. Ferris' electrical contracting

business.

Mr. Ferris and Mr. Cunningham

discussed the names of the individuals,

their addresses, and how best to contact

them. There was discussion with regards to

how each of the individuals should be

contacted, and what means, extortionate

means should be used to force the

individuals to collect.

Two days later also occurring in

Dillon's Tavern on June 11, 1992, the

defendant before you today, Brian Hoyle, was

intercepted in a conversation with Rex W.

Cunningham, Jr. in which Mr. Cunningham

discussed the four individuals that two days

earlier Mr. Ferris had requested Mr.

Cunningham to use his expertise in

collecting from. During that conversation

Mr. Cunningham and Mr. Hoyle discussed

exactly what types of extortionate means

would be used to collect from those four

individuals.

There was a third conversation on July

21, 1992 in which Mr. Ferris again came into

Dillon's and asked Mr. Cunningham what was

going on with the collection efforts, and

Mr. Ferris hadn't gotten any money yet. And

Mr. Cunningham said he was going to talk to
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Brian Hoyle about it, and get him on it

right away.

Each of the individuals listed in the

Indictment would testify they were either

called or visited on one occasion by

individuals saying that the named victim in

the indictment had to pay the person they

owed the money to and specific amounts were

mentioned, although Mr. Ferris' name was not

mentioned. One of the victims, Diane

Taylor, would identify an individual who

looked like the defendant Brian Hoyle and he

and another individual got into a car

registered to Brian Hoyle.

In addition a search warrant was

executed of Mr. Cunningham's person, his

home, and his vehicle, and in his vehicle

were found three index cards which had the

names of the four individuals who Mr. Ferris

sought to have collected from, including

their addresses and their home phone

numbers.

* * * *

. . . That would be the evidence in

sum that the government would have relied

upon had it gone to trial.

This time, the government asked for a sentence at the

“low end of the guideline range.” The defendant pled guilty to

count seven of the Indictment for the second time and the court,

again, accepted his plea after questioning the defendant as he

had done at the prior plea of guilty. See supra. The defendant

was ultimately sentenced to 151 months in prison and three years

of supervised release.
1 Rule 11(f) states: “Determining Accuracy of Plea.

Notwithstanding the acceptance of a plea of guilty, the court

should not enter a judgment upon such plea without making such

inquiry as shall satisfy it that there is a factual basis for

the plea.”

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The defendant did not file a notice of appeal. He

instead filed a pro se motion pursuant to 28 U.S.C. § 2255. The

district court granted the motion for the sole purpose of

appealing his sentence and directed the clerk to file a notice

of appeal on the defendant's behalf. 

On appeal, the defendant argues that the district court

violated Rule 11(f) of the Federal Rules of Criminal Procedure

by entering judgment upon the defendant's plea of guilty without

a proffer of evidence that the defendant had participated or

conspired to collect or attempt to collect on an “extension of

credit.” The defendant argues that he was not adequately

informed by the court of the nature of the charge to which he

was pleading guilty as required by Rule 11(c). He further

contends that the sentencing guidelines were erroneously

applied. We will address each of these points in turn.

II.

We first address the defendant's contention that the

district court violated Rule 11(f)1 because the factual basis for

the guilty plea was insufficient. The defendant did not

challenge his guilty plea in his criminal case and did not do so
-10-

in his § 2255 petition. Because he raises this Rule 11(f) claim

for the first time on appeal, we review it only for plain error.

United States v. Gandia-Maysonet, 227 F.3d 1, 4 (1st Cir. 2000).

Under a plain error standard, the burden is on the defendant who

is attacking his own plea to show that the outcome would likely

have been different if the error had not occurred. Plain error

“requires not only an error affecting substantial rights but

also a finding by the reviewing court that the error has

'seriously affect[ed] the fairness, integrity, or public

reputation of judicial proceedings.'” Id. at 5 (alteration in

original) (quoting United States v. Olano, 507 U.S. 725, 732

(1993)).

We have held that: 

[t]he “fairness, integrity or reputation”

plain-error standard is a flexible one and

depends significantly on the nature of the

error, its context, and the facts of the

case. In the taking of a guilty plea under

Rule 11, the critical concerns are that the

plea be voluntary and that there be an

admission, colloquy, proffer, or some other

basis for thinking that the defendant is at

least arguably guilty. 

Gandia-Maysonet, 227 F.3d at 6 (internal citations omitted).

The defendant argues that “the government proffered no

evidence that [the] debt the defendant attempted to collect

arose from an 'extension of credit.'” He contends that the

money the customers owed to Ferris for his electrical
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contracting work was not an “extension of credit” within the

meaning of 18 U.S.C. § 894(a)(1). Section 894(a)(1) makes it

illegal to “knowingly participate[] in any way, or conspire[] to

do so, in the use of any extortionate means . . . to collect or

attempt to collect any extension of credit.” An extension of

credit is defined in 18 U.S.C. § 891(1): “To extend credit

means to make or renew any loan, or to enter into any agreement,

tacit or express, whereby the repayment or satisfaction of any

debt or claim, whether acknowledged or disputed, valid or

invalid, and however arising, may or will be deferred.”

The defendant contends that there was no extension of

credit within the meaning of the statute because Ferris neither

made a loan to his customers nor did he agree to defer payment

for his services. The defendant cites myriad cases from other

circuits to support his contention that in order to establish an

extension of credit, there must be an agreement, tacit or

express, to defer payment. See, e.g., United States v. Garcia,

135 F.3d 951, 955 (5th Cir.), cert. denied, 524 U.S. 961 (1998)

(marijuana dealer gave buyer time to pay balance of payment,

while indicating that interest was accruing daily); United

States v. Cassano, 132 F.3d 646, 650-51 (11th Cir.), cert.

denied, 525 U.S. 840 (1998) (agreement to defer repayment of

embezzled money); United States v. Bufalino, 576 F.2d 446, 452
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(2d Cir. 1978) (defrauded jeweler accepted “lip service” from

the defrauder and by doing so, made an “extension of credit”);

United States v. Annerino, 495 F.2d 1159, 1166 (7th Cir. 1974)

(unauthorized use of credit cards and an agreement whereby

repayment was deferred); United States v. Briola, 465 F.2d 1018,

1021 (10th Cir. 1972) (fraudulent bets with at least tacit

agreement).

We have held, however, that “[s]ection 891(1), defining

'extension of credit,' is very broad in its application and is

not confined to what is commonly known as a 'loan.'” United

States v. Sedlak, 720 F.2d 715, 720 (1st Cir. 1983); see

also United States v. DiPasquale, 740 F.2d 1282, 1288 (3d Cir.

1983) (“The definition of an extension of credit . . . was

generously drafted. . . . [and] has been even more generously

construed.”). In Sedlak, we also held that the victim's belief

that he owed money was not dispositive in the determination of

whether there was an extension of credit:

The fact that [the victim] did not believe

that he owed [the defendant/creditor] any

money is not dispositive of the issue. See

United States v. Cheiman, 578 F.2d 160 (6th

Cir. 1978) . . . , where the court found an

extension of credit existed even when the

victim was forced to sign an agreement to

pay a false claim.

Sedlak, 720 F.2d at 720. 
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Likewise, the Third Circuit held that “[t]he debt or

claim may be 'acknowledged or disputed, valid or invalid'. . .

. It may even be wholly fictitious.” DiPasquale, 740 F.2d at

1287 (internal citations omitted). It continued: “[T]he

agreement to defer repayment may be 'tacit or express'. A tacit

agreement may be implied from the circumstances surrounding the

creation of the debt.” Id. (internal citations and footnote

omitted). The court concluded: 

[U]nder section 891(1), an agreement to

defer the repayment of a debt may be implied

from the debt, even if the debt is wholly

fictitious. When a self-styled creditor

appears before his 'debtor' and demands

satisfaction, the creditor posits both a

debt and the prior deferral of its

repayment. We believe that the definition

of an extension of credit encompasses this

type of transaction.

Id.

We find that there was an extension of credit in this

case. It is logical to infer, at the very least, that there was

a tacit agreement to defer repayment of a debt. Ferris provided

electrical contracting services to the victims. The parties did

not enter into a contract prior to the rendering of the

services. Once the services were provided and immediate payment

was not demanded, an extension of credit was established. It

would be unreasonable for the victims to have assumed that the

services were provided by Ferris at no cost. It would also have
-14-

been unreasonable for them not to have expected a bill in due

course. In fact, bills were later presented to the customers

and eventually payment was demanded. When Ferris did not

receive payment, he contacted Cunningham for help in collecting

the debt. Cunningham, in turn, assigned the task of collecting

to the defendant. 

The defendant relies heavily on three cases from other

circuits, see United States v. Wallace, 59 F.3d 333 (2d Cir.

1995); United States v. Stokes, 944 F.2d 211 (5th Cir. 1991);

United States v. Boulahanis, 677 F.2d 586 (7th Cir. 1982).

These cases, however, require more than is required in our

decision in Sedlak and the Third Circuit's decision in

DiPasquale and we decline to give them much weight in this case.

We need not reach the question of whether we adopt the Third

Circuit's rationale at this time because we find sufficient

indicia of agreement contained in the current facts to conclude

that an agreement to defer payment of the debts existed. We

find that there was a factual basis to support the charge that

there was an extension of credit and we hold that the district

court did not violate Rule 11(f).
2 Rule 11(c) states in pertinent part: 

Advice to Defendant. Before accepting a

plea of guilty . . . , the court must

address the defendant personally in open

court and inform the defendant of, and

determine that the defendant understands the

following:

(1) the nature of the charge to which

the plea is offered . . . .

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We next address the defendant's contention that the

district court violated Rule 11(c)2 of the Federal Rules of

Criminal Procedure because it failed to explain the meaning of

“extension of credit,” and therefore, he argues, the defendant

was not instructed on the nature of the charge. We find this

argument unpersuasive.

Rule 11 requires that a defendant who pleads guilty

must understand the nature of the charge. McCarthy v. United

States, 394 U.S. 459, 466 (1969). Understanding the charge is

one of Rule 11's “core concerns” and a violation thereof

mandates that the plea be set aside. United States v. CotalCrespo, 47 F.3d 1, 4 (1st Cir. 1995). We do not apply a

“talismanic test,” but rather review the totality of the

circumstances of the hearing. Id. We have held:

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. At a minimum, Rule 11
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requires that the trial court address the

defendant personally in open court to

ascertain that his plea is “voluntary and

intelligent.”

Id. at 4-5 (internal citations omitted). We continued: “In the

absence of a total failure to address one of Rule 11's core

concerns, the question is whether irregularities in the pleataking proceeding affected the defendant's 'substantial

rights.'” Id. at 5 (citation omitted). 

We have held that the factors that may be used to

determine whether a plea should be withdrawn include: (1) the

defendant's reason for the withdrawal; (2) the timing of the

request; (3) whether there was a plea agreement; and (4) the

defendant's assertion, or lack thereof, of innocence. United

States v. Alvarez-Del Prado, 222 F.3d 12, 15 (1st Cir. 2000).

In this case, there was a plea agreement; in fact, there were

two plea agreements. The defendant argues that his plea should

be withdrawn because he did not understand the nature of the

charge. The defendant did not indicate in his first Rule 11

hearing that he did not understand the nature of the charge, and

did not do so in his second Rule 11 hearing. Likewise, the

defendant has never asserted his innocence, neither at the first

Rule 11 hearing nor at the second Rule 11 hearing. He did not

assert his innocence in his § 2255 petition and has still not

done so before us.
3 In his brief, the defendant also claimed that he was

the victim of ineffective assistance of counsel because his

attorney did not seek a “role in the offense” reduction. This

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After careful review of the record, we find no

violation of the Rule 11 colloquy and find no reason to disrupt

the defendant's guilty plea. We note that the district court

read count seven of the indictment to the defendant at both Rule

11 hearings, and the defendant never indicated any confusion

with the charge read to him. At both Rule 11 hearings, the

defendant answered in the affirmative when asked if he actually

committed the offense charged. The government read a detailed

account of the facts and the defendant never indicated any

confusion. The defendant acknowledged to the court that he was

counseled by an attorney; in fact, he had two different

attorneys for his two Rule 11 hearings. Ultimately, the

defendant pled guilty twice to the same charged offense. We

find that the defendant was well aware of the nature of the

offense charged and knowingly and voluntarily pled guilty. 

Finally, the defendant argues that he was the victim

of ineffective assistance of counsel when his attorney failed to

request a downward departure pursuant to U.S.S.G. § 4A1.3

because the defendant's “assigned criminal history category

significantly overrepresents the seriousness of his past

criminal conduct and the likelihood of recidivism.”3 The
argument has since been withdrawn.

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defendant did not address this precise argument in his § 2255

petition and does so for the first time on appeal to us. We

have repeatedly held that

“fact-specific claims of ineffective

assistance cannot make their debut on direct

review of criminal convictions, but, rather,

must originally be presented to, and acted

upon by, the trial court.” United States v.

Mala, 7 F.3d 1058, 1063 (1st Cir. 1993)

(citing cases). We have allowed exceptions

“only when the critical facts are not in

dispute and the record is sufficiently

developed to allow reasoned consideration of

the claim.” Id.

United States v. Bierd, 217 F.3d 15, 23-24 (1st Cir. 2000). It

is quite unlikely that the argument has been adequately

preserved and even on appeal it is advanced only in a minimal

way by a few sentences at the very end of the opening brief.

Nevertheless, even if the issue were adequately

preserved or could be raised under a plain error standard, there

is no basis for us on the present record to conclude that

counsel was ineffective for failing to raise the claim and still

less that there is any basis under the Strickland test for

believing that the result would have been different if a

downward departure had been sought. It is true that “a

sentencing court may invoke § 4A1.3 to depart downward from the

career-offender category if it concludes that the category
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inaccurately reflects the defendant's actual criminal history.”

United States v. Lindia, 82 F.3d 1154, 1165 (1st Cir. 1996).

But nothing yet put before us shows such a departure motion had

promise. On the contrary, the defendant not only had two prior

felony convictions but committed the final charged offense only

a year-and-a-half after he was released from prison but while

still on parole for federal drug trafficking.

III.

For the reasons set forth above, we find that the

district court did not err in accepting the defendant's guilty

plea 

or when sentencing him. 

Affirmed.