Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 13-2082

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERTO ROMÁN-ORENCH, a/k/a Tito Pecoso,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Gustavo A. Gelpí, U.S. District Judge]

Before

Howard, Chief Judge,

Lipez and Barron, Circuit Judges.

Xiomara M. Hernández on brief for appellant.

Rosa Emilia Rodríguez-Velez, United States Attorney, Nelson

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

Division, and Francisco A. Besosa-Martínez, Assistant United States

Attorney, on brief for appellee.

August 19, 2015
HOWARD, Chief Judge. Appellant Roberto Román-Orench

seeks to have his guilty plea vacated because, he claims, the

district court failed to properly investigate whether the

medication he was taking affected his ability to competently plead

guilty. Román also argues that his trial counsel was

constitutionally deficient for failing to pursue the competency

issue. Finding nothing amiss, we affirm his conviction and dismiss

the latter claim without prejudice.

The genesis of Román's argument is the following

exchange, which occurred during his change of plea hearing:

THE COURT: Have you been treated for any

mental or physical condition?

MR. ROMÁN-ORENCH: Yes.

THE COURT: What condition?

MR. ROMÁN-ORENCH: I've been to a psychologist

for drug treatment.

. . . .

THE COURT: Did you take medication for that

psychological treatment?

MR. ROMÁN-ORENCH: I'm taking medication at

MDC.

THE COURT: And what are you taking?

MR. ROMÁN-ORENCH: The name? I don’t know the

name of the medication.

THE COURT: And the purposes then?

MR. ROMÁN-ORENCH: For anxiety and depression.

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The district court ultimately found that Román was "fully

competent and capable of entering an informed plea, that he is

aware of the nature of the charges and consequences of this plea,

and that the same is a knowing and voluntary plea." The court

accepted the plea and sentenced Román to ninety-two months'

imprisonment.

Román argues that the district court should have

questioned him more aggressively about the medication he referenced

and its effects on his ability to enter a voluntary and intelligent

plea. Specifically, he faults the court's failure to ascertain the

medication's name, dosages, and side effects, or to ask how

recently Román had taken it. In the absence of an objection below,

our review is for plain error; Román must show a clear or obvious

error which affected his substantial rights and seriously impaired

the fairness, integrity, or public perception of the proceedings. 

United States v. Almonte-Nuñez, 771 F.3d 84, 89 (1st Cir. 2014).

It is well established that a criminal defendant may not

plead guilty unless he does so competently and intelligently. 

United States v. Kenney, 756 F.3d 36, 43 (1st Cir.), cert. denied,

135 S. Ct. 770 (2014); see also Fed. R. Crim. P. 11(b)(2). 

Accordingly, when a defendant states at a change of plea hearing

that he is taking medication, "the district court has a duty to

inquire into the defendant's capacity to enter a guilty plea." 

United States v. Savinon-Acosta, 232 F.3d 265, 268 (1st Cir. 2000).

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Although we noted in Savinon-Acosta that "[t]he better

practice" would be for the sentencing judge to question the

defendant about the type, timing, quantity, purpose, and

consequences of any medication, the "critical question" remains

whether that medication has impaired the defendant's ability to

voluntarily enter a plea. Id. Toward that end, we explained that,

while expert testimony may be necessary in some circumstances to

assess the effects of particular medication, "practical judgments

can usually be made." Id.

 Here, the sentencing judge admittedly did not ask Román

all of the specific questions that we described in Savinon-Acosta

as constituting the "better practice." But that was equally true

in Savinon-Acosta, itself. There, we noted that the district court

had ascertained neither the name nor quantity of the defendant's

medication. Id. at 269. While we cautioned that we "would have

been more comfortable" had the district court done so, we

nevertheless explained that the court "did determine the purpose of

the medicine" and had gone on to adequately assess the defendant's

competency. Id. As the colloquy reproduced above makes plain, the

sentencing judge here similarly established that Román's medication

was intended to treat anxiety and depression. In addition, the

record reflects that Román answered dozens of questions from the

judge. While those questions were of the "yes or no" variety,

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nothing in the record indicates that he had any trouble

understanding them.

Moreover, the portion of the colloquy that Román

emphasizes shows only half of the story. The record reflects that

the court also sought assurances that Román was competent from both

defense counsel and the prosecutor -- a practice we have explicitly

blessed. Id. Emphasizing that defense counsel had met with Román

on "ten or more occasions" over the prior two to three months, the

court asked him whether, in his opinion, Román was fully competent. 

Counsel responded:

Yes, your Honor. He's fully competent. We

have met on numerous occasions. As the Court

knows, he has been very active in the process

of negotiating the plea agreement; and he

knows specifically what he wants and that he

basically obtained.

The court then asked the prosecutor whether she had any doubts

regarding Román's competency, to which she responded: "No, your

Honor, at this time the government has no doubts as to the

defendant's competency." Finally, the sentencing judge himself

remarked that "I had him [Román] in court four times, five times"

and "I have been able to have prolonged colloqu[ies] with him; he

does understand his case probably better than most detainees."

We are satisfied that counsel's assurances, coupled with

the court's own questioning about Román's medication, sufficed to

confirm that Román was competent to voluntarily enter a plea. 

Despite Román's protestations to the contrary, "there is certainly

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no settled rule that a hearing cannot proceed unless precise names

and quantities of drugs have been identified." Savinon-Acosta, 232

F.3d at 269. Accordingly, we find no error, plain or otherwise.

We also decline to address Román's ineffective assistance

of counsel claim, without prejudice to his right to assert such a

claim in a collateral proceeding. It is well settled in this

circuit that we do not address on direct appeal fact-specific

ineffective assistance claims not raised below unless the

"attorney's ineffectiveness is manifestly apparent from the

record." United States v. Rivera-Gonzalez, 626 F.3d 639, 644 (1st

Cir. 2010) (internal quotation marks omitted). The record contains

no such indication here.

The judgment of conviction is affirmed and the claim of

ineffective assistance of counsel is dismissed without prejudice.

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