United States Court of Appeals 

For the First Circuit 

No. 12-1965 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

DAVID FIGUEROA-OCASIO, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. José Antonio Fusté, U.S. District Judge] 

Before 

Torruella, Kayatta and Barron, 

Circuit Judges. 

 Cathryn A. Neaves, on brief for appellant. 

 Francisco A. Besosa-Martínez, Assistant United States 

Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States 

Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, 

Chief, Appellate Division, were on brief, for appellee. 

October 16, 2015 
- 2 - 

 KAYATTA, Circuit Judge. The district court in this case 

accepted the defendant's straight plea of guilty to firearms 

charges without taking all the steps necessary to determining that 

the plea was entered intelligently and knowingly. The district 

court also employed an erroneous illustration of the requisite 

mens rea in order to defuse the defendant's suggestion that he 

lacked the knowledge needed to support a conviction, thereby 

leaving us with a record in which it appears that a person pleaded 

guilty because he was misinformed about the elements of the crime. 

Finally, the district court also committed procedural error at 

sentencing by incorrectly calculating the applicable sentencing 

guideline range. We therefore vacate the conviction and the 

sentence and remand for proper consideration of the proposed plea 

and such further proceedings as are then called for. 

I. Background 

 David Figueroa-Ocasio ("Figueroa") and three others were 

charged in a four-count indictment alleging various gun offenses-

-namely, violation of 18 U.S.C. § 922(g)(1) (prohibited person in 

possession of a firearm); § 922(j) (possession of a stolen 

firearm); § 922(o) (possession of a machine gun); and § 

922(q)(2)(A) (possession of a firearm in a school zone). The 

charges arose from a traffic stop that occurred at 2:20 a.m. on 

January 9, 2012, in San Juan, Puerto Rico. At the time of the 
- 3 - 

stop, Figueroa was seated as a passenger behind the driver of the 

vehicle. The record does not indicate who owned the vehicle. 

Police found inside the vehicle three firearms, all Glock pistols-

-two during the traffic stop and one later, during an inventory at 

the municipal police precinct.1 It is not clear where the police 

found the first firearm, later determined to have been stolen, 

although the record suggests it may have been stashed between the 

vehicle's center console and the front seat.2 The second firearm 

was found somewhere "in the floor of the car." The record provides 

no evidence as to where in the vehicle the police found the third 

firearm, which had been adapted to fire in fully automatic mode. 

None of the firearms were found on the persons of any of the 

defendants. There was no evidence as to who owned the firearms. 

Although the record states that the authorities conducting the 

search asked whether any of the defendants possessed firearms 

licenses, the record does not indicate how the defendants answered. 

 Figueroa was charged with possession of all three 

firearms in count 1, the "felon in possession" count. The other 

defendants were charged with aiding and abetting. In the other 

 1 The inventory search also turned up two loaded magazines. 

2 The record states that a "firearm's magazine" was found 

"between the center console and the front passenger's seat," but 

it later appears to refer to this magazine as "a Glock pistol, 

Model 27, serial number DBW749 . . . reported stolen on December 

26, 2011[.]" It is not clear whether both a magazine and a firearm 

were found between the center console and the front seat. 
- 4 - 

three counts, all four defendants were charged with possession of 

the respective firearms and with aiding and abetting. 

II. The Change of Plea Hearing 

 On March 1, 2012, Figueroa appeared in the district court 

to enter a straight plea of guilty to the indictment.3 The hearing 

was conducted with the assistance of a court interpreter. 

 The hearing commenced uneventfully. Figueroa made it 

clear, both through counsel and personally, that he wanted to plead 

guilty. Defense counsel stated that his client "expressed to us 

that he would plead guilty rather than go to trial." The district 

court then confirmed with counsel that Figueroa was "pleading 

guilty to all the counts[,]" a "[s]traight plea." Defense counsel 

confirmed that Figueroa was "pleading guilty, period." Next, the 

court asked Figueroa directly whether he had "made a conscious 

decision to plead guilty to every single count of the Indictment. 

. . . Is that what you want to do, sir?" Figueroa answered, 

"Yes." The court asked Figueroa whether he was competent to plead, 

whether he believed that defense counsel was competent, and whether 

he had had ample time to discuss his case with counsel. The court 

 3 The other defendants pleaded guilty separately, each 

pursuant to largely identical plea agreements. The offense facts 

stated in these plea agreements and in the subsequently filed 

presentence investigation reports are identical. 
- 5 - 

did not directly ask Figueroa whether he was entering his plea 

voluntarily and of his own free will. 

 The district court went on to advise Figueroa of certain 

rights "that are waived when [one] plead[s] guilty[,]" including 

the right to trial by jury, the right to be convicted only upon 

proof beyond a reasonable doubt, the presumption of innocence, the 

right to cross-examination, the right to testify, and the right to 

remain silent. The court failed to advise Figueroa of the "right 

to plead not guilty, or having already so pleaded, to persist in 

that plea[,]" the "right to be represented by counsel--and if 

necessary have the court appoint counsel--at trial and at every 

other stage of the proceeding[,]" and the right "to compel the 

attendance of witnesses[.]" Fed. R. Crim. P. 11(b)(1)(B), (D), 

(E). The court concluded this initial colloquy by asking, "[D]o 

you still want to plead guilty in this case?" Figueroa answered, 

"Yes." 

 The district court then summarized the indictment. The 

court summarized count 1 thus: "[Y]ou are a prohibited person, a 

convicted felon, and you were in possession of a firearm." 

Summarizing count 2, the court stated, "[Y]ou possessed stolen 

firearms or you aided and abetted others in possessing stolen 

firearms." The court then described count 3 as "the illegal 

possession of a machine gun or aiding and abetting others in the 
- 6 - 

possession of a machine gun." Counsel interjected, "It's an 

automatic gun," whereupon the court amended its explanation of the 

charge, stating, "It's an automatic gun, not a machine gun."4 

Finally, the court described count 4 as charging that "firearms 

were possessed in a school zone or that you aided and abetted 

others in possessing firearms in a school zone." The court asked 

Figueroa whether he understood "that those are basically the 

charges," although it did not ask whether Figueroa understood the 

charges themselves. The court did ask Figueroa whether he 

understood that "the Government has to prove . . . who you are and 

your relationship to these facts alleged in the Indictment so that 

we can make an association between the facts alleged and you." 

Figueroa agreed that he understood. The court also asked Figueroa 

whether he understood that the Government had the burden of proving 

that all the actions alleged in the indictment "were entered into 

by you knowingly, willfully and unlawfully . . . with a bad purpose 

to disobey or disregard the law, and not because of mistake, 

accident, or other innocent reason. . . . [Y]ou were doing 

something that the law forbids and you knew it." Figueroa again 

agreed that he understood. 

 4 Count 3 actually alleged that the defendants, "aiding and 

abetting each other, did knowingly and unlawfully possess, a 

machinegun . . . in violation of [18 U.S.C. § 922(o)]." 18 U.S.C. 

§ 922(o)(1) makes it unlawful to transfer or possess a machine 

gun. 
- 7 - 

 The district court then reviewed in detail the 

Government's burden of proof as to each of the counts. With regard 

to count 2, possession of a stolen firearm, the following exchange 

occurred: 

 THE COURT: Then another -- Count Two 

would be that one of those firearms . . . had 

been shipped or transported in interstate 

commerce knowing or having reasonable cause to 

believe that the firearm had been stolen. 

 Do you understand that? 

 THE DEFENDANT: He says he didn't know it 

was stolen.[5]

 THE COURT: You did not buy from an armory 

with a license for example? 

 [DEFENSE COUNSEL]: No. 

 THE DEFENDANT: No, no. 

 THE COURT: So would it be fair to say 

that there was a possibility when you bought 

it or wherever you bought it or found it or 

took it, God knows how it got there, it could 

have been stolen? 

 THE DEFENDANT: Yes. 

 5 It is not clear from the context to whom "he" refers; "he" 

could mean either a co-defendant, or Figueroa, if the interpreter 

was telling the court what Figueroa said, instead of translating 

Figueroa's statement word-for-word, as sometimes happens. Nothing 

in the record indicates that the other defendants were present at 

Figueroa's change of plea hearing, and there would have been no 

reason for them to be there, as they had change of plea hearings 

on different days. 
- 8 - 

 With regard to count 4, alleging possession of a firearm 

in a school zone, the colloquy ran as follows: 

 THE COURT: Okay. And . . . on top of 

that, you and the others unlawfully possessed 

in and [a]ffecting interstate commerce the 

firearms and ammunition that we have been 

talking about within a distance of 1,000 feet 

of the ground of the Sagrado Corazon Academy 

school. I guess it's in Santurce? 

 THE DEFENDANT: Yes. 

 [DEFENSE COUNSEL]: Yes. 

 THE COURT: A place that you had reason 

to believe was a school zone. 

 [DEFENSE COUNSEL]: The client accepts 

that that happened. He said it was a 

coincidence. 

 THE COURT: But he knew there was a school 

there? Everybody knows there's a school, 

Sagrado Corazon, in Santurce. Well, it's 

common knowledge. You can see the school from 

the street. 

 Do you understand that, sir? 

 THE DEFENDANT: Yes. 

 The court subsequently summarized the indictment with a 

series of confusing questions that, as we explain in part IV.A.2 

of this opinion, eliminated the mens rea element from the charges 

and otherwise produced meaningless replies in an exchange that was 

typical of an apparently rushed and pro forma approach to the 

proceeding: 
- 9 - 

 THE COURT: Okay. Do you have any doubt 

about the charges that you're pleading guilty 

to, possessing firearms, being a convicted 

felon? Possessing one of those firearms that 

happened to be stolen? Possessing one of 

those firearms that happened to be an 

automatic firearm converted or otherwise, and 

it so happened all these firearms were 

possessed in a school zone? 

 Do you have any doubt about that? 

 THE DEFENDANT: Si. 

 THE COURT: No doubt? 

 THE DEFENDANT: Yes. 

 THE COURT: No doubt? Do you have a doubt 

or no doubt? No doubt? 

 THE DEFENDANT: No. 

 The court did not explain aiding and abetting liability 

to Figueroa. 

 Instead, the district court moved on to sentencing, 

explaining the possible penalties, including forfeiture, fines, 

and supervised release, for the charged offenses, and confirming 

that Figueroa understood. The court also explained that some of 

the sentences could be consecutive and that a sentence could be 

imposed within, above, or below the range calculated under the 

Sentencing Guidelines or as determined by the court, within its 

discretion, according to the sentencing statute. Figueroa 

confirmed that he understood. 
- 10 - 

 The Government then proffered the facts it would have 

offered at trial. Entirely absent from the Government's proffer 

was any specific allegation of knowledge or intent as to any 

element of any of the charged offenses. Also absent from the 

Government's proffer was any specific allegation that Figueroa was 

in possession or constructive possession of a firearm at any time 

or, for that matter, that he knew or had reasonable cause to know 

there were firearms in the vehicle. 

 Upon completion of the Government's proffer, the 

district court continued its examination of Figueroa: 

 THE COURT: Do you admit that these facts 

occurred as outlined by the prosecutor, sir? 

 THE DEFENDANT: Yes. 

 THE COURT: So you, aided and abetted by 

others, or others aiding and abetting you, 

whatever way you want to call it, were in 

possession of these firearms in that car? 

 THE DEFENDANT: Yes. 

 . . . 

 THE COURT: Do you still want to plead, 

sir? 

 THE DEFENDANT: (Nodding head up and 

down.) 

 . . . 

 THE COURT: Well, I will accept your 

guilty plea to these four counts[.] 
- 11 - 

 While the district court asked Figueroa whether he had 

been subjected to force, threats, or inducements to plead, and 

Figueroa denied having been, the court did not make an express 

finding on the record as to whether Figueroa's plea was knowing 

and voluntary, nor did it make a finding as to whether there was 

a sufficient factual basis for the plea. 

III. The Sentencing Hearing 

 A Presentence Investigation Report (PSR) was issued on 

May 2, 2012. Applying the November 1, 2011, version of the United 

States Sentencing Guidelines Manual (USSG), the PSR grouped all 

four counts together under USSG § 3D1.2(a) because they involved 

the same transaction. The PSR found a base offense level of 22 

under USSG § 2K2.1(a)(3), because the offense involved a 

semiautomatic firearm capable of accepting a large capacity 

magazine and Figueroa had committed the offense after a felony 

conviction for a crime of violence. The PSR added 2 levels under 

USSG § 2K2.1(b)(1), because the offense involved 3 firearms and 

another 2 levels under USSG § 2K2.1(b)(4), because one of the 

firearms was reported stolen.6 With a 2-level reduction for 

 6 Under Application Notes, comment 8(B), USSG § 2K2.1(b)(4) 

"applies regardless of whether the defendant knew or had reason to 

believe that the firearm was stolen[.]" 
- 12 - 

acceptance of responsibility, Figueroa's total offense level was 

24. 

 The PSR assigned Figueroa 1 criminal history point for 

a prior conviction and an additional 2 points under USSG 

§ 4A1.1(d), because the instant offense had been committed while 

Figueroa was on probation. A total of 3 criminal history points 

put Figueroa in Criminal History Category (CHC) II, yielding a 

guideline sentence range of 57 to 71 months' imprisonment.7 

 The sentencing hearing was held on July 5, 2012. Defense 

counsel stated on the record that he had "no issues" with the PSR. 

After summarizing the facts as detailed at the change of plea 

hearing and in the PSR, the district court took Figueroa's 

allocution. The Government recommended a sentence of 71 months. 

 The district court then requested that counsel join it 

in a side-bar conference to discuss the requirement under 18 U.S.C. 

§ 924(a)(4) that any sentence imposed for violation of 18 U.S.C. 

§ 922(q)--here, Figueroa's count 4--not run concurrently with any 

other term of imprisonment. Grouping only counts 1–3, the court 

stated that the guideline range for the grouped counts was 57-71 

 7 The maximum statutory term of imprisonment for violation of 

18 U.S.C. § 922(g),(j), and (o), as alleged in counts 1 through 3, 

is 10 years' imprisonment. 18 U.S.C. § 924(a)(2). The maximum 

statutory term of imprisonment for violation of 18 U.S.C. § 922(q), 

as alleged in count 4, is 5 years. 18 U.S.C. § 924(a)(4). 
- 13 - 

months and, after initially implying that Figueroa's § 922(q) 

violation (count 4) carried a mandatory sentence of 60 months, the 

court later characterized 60 months as a "high end" sentence for 

a § 922(q) offense. The court then calculated the consecutive 

sentence to be imposed for violation of 18 U.S.C. § 922(q), 

concluding in conformity with USSG § 2K2.5 that, given a total 

offense level of 6 for the § 922(q) violation and Figueroa's CHC 

of II, the guidelines range of imprisonment was 1-7 months.8 

Concurring with the Government's recommendation, the court imposed 

a sentence of 71 months' imprisonment for grouped counts 1–3 and 

a consecutive sentence of 7 months' imprisonment for count 4, the 

18 U.S.C. § 922(q) count, resulting in a total sentence of 78 

months' imprisonment. 

 As we will explain, the district court erred in assuming 

that the requirement that count 4's sentence run consecutively 

prevented the court from including count 4 among the grouped 

counts. In fact, the PSR had properly grouped all four counts 

together. Moreover, the record gives reason to doubt that the 

district court recognized that, even under its mistaken 

 8 The court arrived at the total offense level by starting 

with the statutory base offense level of 6, adding 2 levels because 

Figueroa's specific § 922(q) violation was unlawful possession of 

a firearm in a school zone, and applying a 2-level reduction for 

acceptance of responsibility. See USSG § 2K2.5. 
- 14 - 

understanding of the grouping rules, a 78-month sentence would 

have been a high-end guidelines sentence.9

 Playing the role of a potted plant, defense counsel 

offered no objection throughout the proceedings, and then on appeal 

filed an Anders10 brief, which we rejected, ordering that the appeal 

proceed with counsel. 

IV. Discussion 

 Figueroa argues that the district court erred in 

accepting his plea because the record does not show that his plea 

was entered intelligently and knowingly. He also argues that the 

court committed procedural error by imposing a sentence contrary 

to the guidance provided by USSG §§ 2K2.5 and 3D1.1. Finally, 

Figueroa alleges ineffective assistance of counsel. These 

arguments were not raised below, so ordinarily, as Figueroa here 

concedes, we would review for plain error, see United States v. 

Pagán-Ferrer, 736 F.3d 573, 593 (1st Cir. 2013), cert. denied sub 

nom. Vidal-Maldonado v. United States, 134 S. Ct. 2839 (2014); 

United States v. Borrero-Acevedo, 533 F.3d 11, 15 n.4 (1st Cir. 

 9 At sidebar, the district court characterized "[s]even more 

months" for count 4 as "a bargain, if you think." 

10 In Anders v. California, 386 U.S. 738 (1967), the Supreme 

Court noted that an attorney may, pursuant to certain procedural 

requirements, move to withdraw on appeal if the attorney concludes 

after a "conscientious examination" of the client's case that no 

non-frivolous grounds for appeal exist. Id. at 744. 
- 15 - 

2008) (noting that the U.S. Supreme Court has confirmed that 

unpreserved claims of plea-process error are subject to plain error 

review (citing United States v. Vonn, 535 U.S. 55, 58–59, 61, 62 

n. 4 (2002); United States v. Gandia-Maysonet, 227 F.3d 1, 5 (1st 

Cir. 2000))). 

 Inexplicably, however, the Government's brief does not 

respond to the issues presented in Figueroa's brief, including the 

allegations of error under Federal Rule of Criminal Procedure 11, 

which governs the plea process, and under USSG §§ 2K2.5 and 3D1.1, 

but responds rather to the issues raised in a previously filed 

Anders brief. The Government also does not address what standard 

of review should apply. We have stated that "[w]hen the government 

fails to request plain error review, we, and many of our sister 

circuits, review the claim under the standard of review that is 

applied when the issue is properly preserved below." United States 

v. Encarnación-Ruiz, 787 F.3d 581, 586 (1st Cir. 2015) (citing 

United States v. Tapia–Escalera, 356 F.3d 181, 183 (1st Cir. 

2004)). On the other hand, even if the Government had made an 

affirmative concession as to the standard of review, we would not 

be bound by it. See Borrero-Acevedo, 533 F.3d at 15 n. 3 (citing 

United States v. Mescual-Cruz, 387 F.3d 1, 8 n. 2 (1st Cir. 2004)). 

In any event, we believe Figueroa has met the more stringent plain 

error standard, and so that is the standard under which we proceed. 
- 16 - 

A. The Sufficiency of the Plea 

 1. Legal standard 

 To show plain error, a defendant must demonstrate "(1) 

'error,' (2) that is 'plain,' and (3) that 'affect[s] substantial 

rights.' If all three conditions are met, an appellate court may 

then exercise its discretion to notice a forfeited error, but only 

if (4) the error 'seriously affect[s] the fairness, integrity, or 

public reputation of judicial proceedings.'" Borrero-Acevedo, 533 

F.3d at 15 (alterations in original) (quoting Johnson v. United 

States, 520 U.S. 461, 467 (1997)); accord United States v. Padilla, 

415 F.3d 211, 218 (1st Cir. 2005) (en banc) (quoting United States 

v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)). 

 "In applying plain error analysis in guilty plea cases, 

a defendant must, in order to demonstrate that his substantial 

rights were affected, 'show a reasonable probability that, but for 

the error, he would not have entered the [guilty] plea.'" United 

States v. Caraballo-Rodriguez, 480 F.3d 62, 69 (1st Cir. 2007) 

(alteration in original) (quoting United States v. Dominguez 

Benitez, 542 U.S. 74, 83 (2004)); see also United States v. 

Delgado-Hernandez, 420 F.3d 16, 28 (1st Cir. 2005) (finding that 

deficiencies in the Government's factual proffer do not create 

plain error if defendant is otherwise aware of Government's 

evidence against him). "A defendant must thus satisfy the judgment 
- 17 - 

of the reviewing court, informed by the entire record, that the 

probability of a different result is sufficient to undermine 

confidence in the outcome of the proceeding." CaraballoRodriguez, 480 F.3d at 69-70 (quoting Dominguez Benitez, 542 U.S. 

at 83); see also Ramirez-Burgos v. United States, 313 F.3d 23, 29 

(1st Cir. 2002) ("An error affects substantial rights if it was 

'prejudicial,' meaning that the error 'must have affected the 

outcome of the district court proceedings.'" (quoting United 

States v. Olano, 507 U.S. 725, 734 (1993))). 

2. The plea colloquy did not establish that 

 Figueroa's plea was knowing and voluntary 

 Federal Rule of Criminal Procedure 11 requires that the 

district court make the defendant aware of "the nature of each 

charge to which the defendant is pleading." Fed. R. Crim. P. 

11(b)(1)(G). Indeed, "ensuring that the defendant understands the 

elements of the charges that the prosecution would have to prove 

at trial" is "a 'core concern' of Rule 11." Gandia-Maysonet, 227 

F.3d at 3 (citations omitted). And "reviewing courts have been 

willing to intervene" when, as here, an error in the plea process 

implicates that "core concern." Id. In United States v. GandiaMaysonet, for example, we vacated a plea as not knowing and 

voluntary when the district court and the plea agreement both 

misstated the scienter requirement for carjacking. Id. at 4–6. 
- 18 - 

We found the misstatement in Gandia to be obviously erroneous. 

See id. The same is true in this case. 

 Here, the court did not ensure that Figueroa understood 

what the Government needed to prove against him to support a 

conviction. There was no plea agreement to evidence that Figueroa 

had reviewed and acknowledged prior to the hearing the nature of 

the charges and the significance of pleading guilty. At the 

hearing, the court did not ask Figueroa whether he had read the 

indictment, nor whether he had reviewed it with his attorney and 

understood it.11 The court muddied what thin record there was by 

repeatedly asking confusing, compound, and/or internally 

contradictory questions and by failing to follow up sufficiently 

on Figueroa's denials or ambiguous statements regarding the 

elements of the charged offenses. Given all the attendant 

circumstances, we believe the record leaves significant doubts 

about Figueroa's understanding of the nature of all the charges. 

 Moreover, the plea colloquy itself did not provide 

illumination. The court did not adequately explain, and misstated 

the Government's burden in proving, the requisite mens rea. While 

the court explained in general terms, and Figueroa acknowledged he 

understood, that the Government had the burden to prove that the 

 11 The district court asked only, "You have seen the 

indictment, correct?" 
- 19 - 

acts alleged in the indictment "were entered into by [Figueroa] 

knowingly, willfully and unlawfully . . . with a bad purpose to 

disobey or disregard the law, and not because of mistake, accident, 

or other innocent reason," the court's subsequent particularized 

explanations of the charges repeatedly stated a lesser burden. 

 For instance, count 2, the "stolen firearms" charge, 

required proof that Figueroa "knew or had reasonable cause to 

believe that the firearm[] [was] stolen." See United States v. 

Ridolfi, 768 F.3d 57, 64 (1st Cir. 2014) (citing 18 U.S.C. § 

922(j)). Figueroa, reacting to the court's explanation of count 

2, actually denied knowledge that the subject firearm was stolen. 

In response, the court posed an alternative notion of mens rea not 

found in the applicable statute, asking whether "there was a 

possibility when you bought it or wherever you bought it or found 

it or took it, God knows how it got there, it could have been 

stolen?" Figueroa answered in the affirmative, and the court then 

moved on as if the answer were sufficient. We are thus left with 

a record on which it appears that Figueroa denied knowing that the 

gun was stolen, yet was coaxed into thinking it sufficient that 

there was a mere possibility that it had been stolen.12 

 12 It also is not clear from this exchange whether Figueroa 

was admitting he bought, took, or found the firearm, or that it 

was in the vehicle "God knows how[.]" 
- 20 - 

 The district court also misstated the requisite mens rea 

with respect to count 4, "the school zone" count. Under 18 U.S.C. 

§ 922(q)(2)(A), "[i]t shall be unlawful for any individual 

knowingly to possess a firearm that has moved in or that otherwise 

affects interstate or foreign commerce at a place that the 

individual knows, or has reasonable cause to believe, is a school 

zone."13 See United States v. Guzmán-Montañez, 756 F.3d 1, 12 (1st 

Cir. 2014) (defendant charged under 18 U.S.C. § 922(q)(2)(A) must 

have known or reasonably should have known he was in a school 

zone). Figueroa did not admit, nor was there any proffer stating, 

that he possessed a firearm knowing or having reasonable cause to 

believe he was in a school zone. At most, Figueroa indicated only 

that his presence in what turned out to be a school zone was a 

coincidence. In response, the court again suggested that a 

standard less than personal knowledge or reasonable cause to 

believe was enough: "But he knew there was a school there? 

Everybody knows there's a school, Sagrado Corazon, in Santurce. 

Well, it's common knowledge. You can see the school from the 

street. Do you understand that, sir?" Given the misdirected 

 13 A school zone is an area within school grounds or "within 

a distance of 1,000 feet from the grounds of a public, parochial 

or private school." 18 U.S.C. § 921(a)(25); see also United States 

v. Nieves–Castaño, 480 F.3d 597, 603–04 (1st Cir. 2007). 
- 21 - 

nature of the court's question, it is not clear what Figueroa was 

admitting or thought was required.14 

 Next, in summarizing all the charged offenses, the 

district court again affirmatively suggested a lesser mens rea 

than the law requires. First, it misstated the required proof for 

counts 2, 3, and 4, suggesting that proof that Figueroa was in 

possession of "one of those firearms that happened to be stolen . 

. . [or] that happened to be an automatic firearm converted or 

otherwise, and [that] it so happened all these firearms were 

possessed in a school zone" was sufficient to prove the offenses. 

Of course, the fact that a firearm "happened to be" anything is 

not enough to establish criminal liability under the charged 

offenses. The court created further confusion by asking Figueroa 

whether he had any doubt about what he was pleading to. The court 

asked, "No doubt? Do you have a doubt or no doubt? No doubt?" 

From Figueroa's "No," we do not know whether he meant he had doubt 

or he had no doubt. 

 The district court also failed to offer any explanation 

of the Government's burden in proving the aiding and abetting 

 14 As we have held, evidence of the location of a school or 

even of the fact that it is visible from the location of a 

defendant's unlawful possession of a firearm is insufficient, in 

itself, to prove knowing possession of a firearm in a school zone. 

See Guzmán-Montañez, 756 F.3d at 11-12. 
- 22 - 

counts. See Encarnación-Ruiz, 787 F.3d at 584 ("[T]he government 

must prove that an aider and abettor of criminal conduct 

participated with advance knowledge of the elements that 

constitute the charged offense.") (citing Rosemond v. United 

States, 134 S. Ct. 1240, 1248-49 (2014)). In this respect, neither 

the Government nor the district court made any effort to 

distinguish between the proof necessary to convict Figueroa as a 

principal and that required to convict him as an aider and abettor. 

Thus, the record does not establish that Figueroa understood the 

difference between "possessing firearms" and "aiding and abetting 

others in possessing firearms."15 

 The district court further compounded this error through 

its confusing question, "So you, aided and abetted by others, or 

others aiding and abetting you, whatever way you want to call it, 

were in possession of these firearms in that car?" We do not know 

whether Figueroa's response of "Yes" to this disjointed compound 

question meant that he was "in possession of these firearms in 

that car" or "others . . . were in possession of these firearms in 

that car." We do not know which theory of liability the Government 

 15 "In order to sustain a conviction for aiding and abetting 

the government must prove, in addition to the commission of the 

offense by the principal, that the defendant consciously shared 

the principal's knowledge of the underlying criminal act, and 

intended to help the principal." United States v. Henderson, 320 

F.3d 92, 109 (1st Cir. 2003). 
- 23 - 

intended to pursue, as, indeed, neither the Government nor the 

district court offered any explanation of the distinction between 

principal and aider and abettor liability. 

 Last but not least, Figueroa's final, formal entry of a 

plea was itself ambiguous and less than explicit. According to 

common practice, the colloquy resulting in a guilty plea concludes 

with the question, "How do you now plead to the charge, guilty or 

not guilty?" West's Federal Forms, § 84:42 (May 2014). So that 

an explicit, non-ambiguous record is created, the defendant should 

be prompted to state either "guilty" or "not guilty." Here, the 

court did not follow this sensible practice. Rather, it asked, 

"Do you still want to plead, sir?" Figueroa then gave no verbal 

or oral answer at all, but instead only nodded his head up and 

down. Again, we are left without an unambiguous, explicit 

admission of guilt. 

3. The district court's numerous plain errors in 

accepting Figueroa's guilty plea prejudicially 

affected the fairness of the proceedings 

 

 The foregoing demonstrates that the district court 

committed plain and obvious error in entering Figueroa's plea as 

knowing and voluntary. Remaining are the third and fourth prongs 

of the plain error standard. Gandia-Maysonet, 227 F.3d 1, is 

instructive on those points as well. In Gandia, we found the 

district court's error in describing the mens rea for carjacking 
- 24 - 

as "knowingly and unlawfully," rather than as "with the intent to 

cause death or serious bodily harm," sufficiently prejudicial to 

affect the defendant's substantial rights, thus satisfying the 

third prong of plain error review. Gandia, 227 F.3d at 4–5. We 

thought that the court's "repeated misstatement, if accepted by 

[the defendant], could well have encouraged him to plead guilty. 

After all, a defendant who honestly did not think that he had 

intended to kill or maim might well bridle if told that he had to 

admit to this intent . . . ." Id. at 5. The district court's 

misstatements about the scienter requirements at Figueroa's 

colloquy were at least as confusing and misleading as those in 

Gandia. Additionally, as in Gandia, there is little evidence that 

the defendant understood the element from some other source. See 

id. And so we conclude that this confusion "could well have 

encouraged [the defendant] to plead guilty." Id. 

 If there were any doubt, our conclusion is easily 

confirmed by the manner in which a weakness in the government's 

proffer aligns with the district court's most glaring errors in 

explaining the law. The government's proffer offered at best a 

sketchy basis for inferring that Figueroa possessed or 

constructively possessed the firearms, much less that he knew that 

any were stolen. The proffer showed only that Figueroa was in the 

back seat of a car that contained three firearms, one of which was 

somewhere on the floor of the car. Such presence, by itself, is 
- 25 - 

not enough to establish criminal liability. See, e.g., Ridolfi, 

768 F.3d at 62 (noting that "mere presence with or proximity to 

weapons, or association with another who possesses a weapon, is 

not enough" to sustain a conviction for firearms possession); 

United States v. Davis, 773 F.3d 334, 342 (1st Cir. 2014) (same); 

United States v. Rodríguez-Lozada, 558 F.3d 29, 40 (1st Cir. 2009) 

(same); United States v. Duval, 496 F.3d 64, 79 (1st Cir. 2007) 

(same). Rather, the Government must show "some action, some word, 

or some conduct that links the individual to the contraband and 

indicates that he had some stake in it, some power over it." 

United States v. McLean, 409 F.3d 492, 501 (1st Cir. 2005) (quoting 

In re Sealed Case, 105 F.3d 1460, 1463 (D.C. Cir. 1997)). There 

was no such fact conceded or otherwise made a part of the record 

that provided a rational basis for concluding Figueroa "had some 

stake in" or "some power over" the weapons in the car.16

 16 The closest the proffer comes to suggesting Figueroa was 

in constructive possession of a firearm is the allegation that a 

firearm was found "in the floor of the car" after Figueroa exited 

the vehicle. From this, one reasonably might infer that the 

firearm was found on the floor near where Figueroa was sitting, 

from which one reasonably might infer that it was within arm's 

reach of Figueroa, from which one reasonably might infer Figueroa 

knew the weapon was within arm's reach, from which one reasonably 

might infer that Figueroa was in possession of the firearm. Facts, 

however, may not be established by stacking inference upon 

inference. See United States v. López-Díaz, 794 F.3d 106, 113–14 

(1st Cir. 2015) (citing United States v. Burgos, 703 F.3d 1, 10 

(1st Cir. 2012)). Again, there were no facts indicating Figueroa 

knew there was a firearm "in the floor," or that he "knowingly 

[had] the power and intention at a given time to exercise dominion 

or control over [a firearm] either directly or through others." 
- 26 - 

 The district court therefore had before it a defendant 

claiming a lack of the precise knowledge for which the prosecution 

was offering no evidence at all. In short, a man was apparently 

and unwittingly telling the court that he was very likely not 

guilty of the charge, with no evidence to the contrary. We have 

no difficulty finding in such a case that, but for the court's 

error in wrongfully disregarding Figueroa's unwitting claims of 

innocence, there is a reasonable probability that this guilty plea 

would not have been entered. 

 Nor, finally, is there any doubt that the error seriously 

affects the fairness and integrity of judicial proceedings. We 

noted in Gandia that the plea's "force . . . in evidencing arguable 

guilt was substantially undercut by the misstatement of the 

scienter standard." Id. at 6. Given that, in combination with 

the fact that "the other evidence of scienter was thin (although 

not beyond reasonable inference)," we held that the fourth prong 

of plain error review was satisfied, "because [the error] seriously 

affected the guilty plea colloquy's fairness and integrity." Id. 

The same result is dictated by the errors in this case. 

 

United States v. McLean, 409 F.3d 492, 501 (1st Cir. 2005) (quoting 

United States v. Carlos Cruz, 352 F.3d 499, 510 (1st Cir. 2003)); 

see also United States v. Robinson, 473 F.3d 387, 399 (1st Cir. 

2007) (finding constructive possession of firearm found hidden in 

vehicle's engine compartment shown by, inter alia, defendant's 

statement that, "When they came from everywhere, I could have gone 

boom, boom"). 
- 27 - 

B. Sentencing Error 

 Although vacation of the judgment on the grounds stated 

above obviates the need to address the district court's alleged 

sentencing error, for sake of completeness, we next address 

Figueroa's argument that the district court committed procedural 

error by imposing a sentence contrary to the guidance provided at 

USSG §§ 2K2.5 and 3D1.1. Because this issue is raised for the 

first time on appeal, review is for plain error. United States v. 

Goodhue, 486 F.3d 52, 55-56 (1st Cir. 2007). 

 "We review criminal sentences for reasonableness, using 

an abuse of discretion standard." United States v. Leahy, 668 

F.3d 18, 21 (1st Cir. 2012) (citing Gall v. United States, 552 

U.S. 38, 46 (2007)). This review "is bifurcated: we first 

determine whether the sentence imposed is procedurally reasonable 

and then determine whether it is substantively reasonable." Id. 

(quoting United States v. Clogston, 662 F.3d 588, 590 (1st Cir. 

2011)). For a sentence to be procedurally reasonable, the district 

court must have properly calculated the guideline sentencing 

range. See United States v. Martin, 520 F.3d 87, 92 (1st Cir. 

2008) (explaining that procedural errors include "failing to 

calculate (or improperly calculating) the Guidelines range" 

(quoting Gall, 552 U.S. at 51)). 
- 28 - 

 In the instant case, the district court committed 

procedural error by improperly calculating the Guidelines range. 

Because the four offenses in question involved the same act or 

transaction, they were properly grouped under USSG § 3D1.2(a). 

For counts included in a single group because they involved the 

same act or transaction, "the offense level applicable to [the] 

Group is the offense level . . . for the most serious of the counts 

comprising the Group, i.e., the highest offense level of the counts 

in the Group." USSG § 3D1.3(a). In the instant case, the most 

serious counts comprising the group were counts 1, 2, and 3. The 

offense level applicable to the group, then, was the offense level 

applicable to counts 1, 2, and 3. In this case, that offense level 

was 24, yielding a guideline sentencing range of 57-71 months' 

imprisonment at CHC II. 

 The district court erred in calculating the guidelines 

range by removing count 4 from the group, calculating a guideline 

range for it separately, and then adding the count 4 calculation 

to the group calculation. The court was correct in running the 

term of imprisonment for count 4 consecutively, but erred by 

running it in addition to the guideline range calculated for the 

group. 

 Multiple counts of conviction are grouped under USSG 

§ 3D1.1(a)(1) by applying the grouping rules of USSG § 3D1.2. 
- 29 - 

Under USSG § 3D1.2(a), convictions are grouped together if they 

involve the same act or transaction. But USSG § 3D1.1(b)(1)(B) 

creates an exception to this rule for any count of conviction that 

"requires that [its] term of imprisonment be imposed to run 

consecutively to any other term of imprisonment." Moreover, 

Application Note 2 to USSG § 3D1.1 provides that a conviction under 

18 U.S.C. § 922(q) is not subject to this exception, and that the 

multiple count rules therefore apply. The result that follows 

from this guidance is consistent with the guidance set forth at 

Application Note 3 to USSG § 2K2.5, which provides that when "the 

defendant is convicted both of [an] underlying offense and 18 

U.S.C. § 922(q), the court should apportion the sentence between 

the count for the underlying offense and the count under 18 U.S.C. 

§ 922(q)."17 By straying from this guidance and not apportioning 

the sentence for violation of 18 U.S.C. § 922(q) as part of the 

guidelines range, the court imposed a sentence above the guidelines 

range sentence, even though it apparently intended to impose a 

guidelines sentence.18 Accordingly, we conclude the first two 

 17 "For example, if the guideline range is 30-37 months and 

the court determines 'total punishment' of 36 months is 

appropriate, a sentence of 30 months for the underlying offense, 

plus 6 months under 18 U.S.C. § 922(q) would satisfy this 

requirement." USSG § 2K2.5, Application Note 3. 

18 It is not clear from the record whether the district court 

recognized that, even under its mistaken understanding of the 

grouping rules, 78 months would have represented a high-end 

guidelines sentence. At sidebar, the court after some discussion 
- 30 - 

prongs of the plain error standard have been met, namely, that (1) 

there was an error, and (2) the error was plain or obvious. 

 We also conclude that the third prong of the plain error 

standard has been met, in that the district court's error affected 

Figueroa's substantial rights, i.e., it affected the outcome of 

the court's proceedings. The record clearly shows that the court 

believed the guidelines called for the stacking of the count 4 

period on top of the group period, rather than apportioning the 

offenses within the group period, thus increasing the guidance by 

seven months. It also appears that the court's intention was to 

impose a guidelines sentence, properly calculated. Absent any 

indication to the contrary, we therefore presume that, but for the 

error, there is a reasonable likelihood that the sentence would 

have been shorter. See United States v. Ortiz, 741 F.3d 288, 293–

94 (1st Cir. 2014). 

 

correctly stated that 60 months is the statutory maximum for 

violation of 18 U.S.C. § 922(q), see 18 U.S.C. § 924(a)(4), but 

when issuing its sentence, the court stated, "If I were to do high 

end on both ends, I would have to sentence you to 71 and 60. 

That's 117 months." The high end of a guidelines sentence under 

CHC II for violation of 18 U.S.C. § 922(q) is in fact 7 months. 

The record suggests a risk that the court was mixing apples 

(guideline ranges) and oranges (statutory maximums), leading it to 

impose a variant or upwardly departing sentence while believing 

itself to be imposing a more lenient guidelines sentence. 
- 31 - 

 Finally, we believe the court's sentencing error 

"seriously affects the fairness, integrity or public reputation of 

judicial proceedings." As we stated in United States v. DíazCorrea, 287 F. App'x 899 (1st Cir. 2008) (unpublished per curiam): 

"Where correction of [] a guidelines calculation error would lead 

to a lower sentence, remand for resentencing is ordinarily 

warranted under the third and fourth prongs of [the plain error] 

standard." Id. at 900–01 (citing United States v. Antonakopoulos, 

399 F.3d 68, 81 (1st Cir. 2005)). 

V. Conclusion 

 For the foregoing reasons, we vacate Figueroa's 

conviction and sentence, and we remand to a different district 

court judge for proper consideration of the proposed plea, 

including consideration of whether there is a sufficient factual 

basis to support the plea, and such further proceedings as are 

then called for.19 

 19 Because we recommend the judgment be vacated, we need not 

address Figueroa's ineffective assistance of counsel claim.