Not for Publication in West's Federal Reporter 

United States Court of Appeals

For the First Circuit 

No. 15-2038 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

PEDRO WIPP-KELLEY, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

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

Before 

Torruella, Lipez, and Thompson, 

Circuit Judges. 

 Luz M. Ríos-Rosario on brief for appellant. 

Rosa Emilia Rodríguez–Vélez, United States Attorney, 

Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, 

Appellate Division, and Tiffany V. Monrose, Assistant United 

States Attorney, on brief for appellee. 

March 20, 2017 
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THOMPSON, Circuit Judge. 

Preface

Pedro Wipp-Kelley ("Wipp") pled guilty — without a plea 

agreement — to conspiring to possess cocaine with intent to 

distribute, possessing cocaine with intent to distribute, and 

possessing a firearm "in furtherance" of a drug-trafficking 

offense.1 The district judge accepted his plea and later sentenced 

him to 180 months in prison — a sum made up of two concurrent terms 

of 120 months for each drug offense (the mandatory minimum), plus 

a consecutive term of 60 months for the firearm offense (also the 

mandatory minimum). Now before us, he insists that the judge 

slipped by accepting a plea that was neither knowing nor voluntary. 

Reviewing for plain error — which the parties agree is the 

governing standard — we see no reason to reverse.2

 1 We draw the relevant facts from the unobjected-to parts of 

the presentence report and the transcripts from the relevant court 

hearings. See, e.g., United States v. Hudson, 823 F.3d 11, 13 n.1 

(1st Cir. 2016). 

2 To establish plain error — a famously difficult-to-satisfy 

standard — a defendant must show "error, plainness, prejudice to 

[him,] and the threat of a miscarriage of justice." See United 

States v. Torres–Rosario, 658 F.3d 110, 116 (1st Cir. 2011); see 

also Puckett v. United States, 556 U.S. 129, 142 n.4 (2009). In 

the context of this case, prejudice requires a showing of "a 

reasonable probability that, but for [the judge's] error, [Wipp] 

would not have entered the plea." United States v. Domínguez 

Benítez, 542 U.S. 74, 76 (2004). 
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Analysis

A valid guilty plea must be knowingly, intelligently, 

and voluntarily made. See United States v. Ocasio-Cancel, 727 

F.3d 85, 89 (1st Cir. 2013); see also Fed. R. Crim. P. 11. Before 

accepting a guilty plea, the judge must address the defendant in 

open court and inform him of his rights, the nature of the charges, 

and the possible penalties. See Fed. R. Crim. P. 11(b). Wipp 

thinks that his plea is invalid because the judge did not 

adequately explain the elements — particularly the mens rea element 

— of the charged crimes. He of course bears the burden of showing 

that the judge plainly erred. See, e.g., United States v. AlmonteNuñez, 771 F.3d 84, 89 (1st Cir. 2014). And he falls way short of 

doing so. 

Rule 11 does not require a judge "either to spout a fixed 

catechism or to use a set of magic words." United States v. Jones, 

778 F.3d 375, 382 (1st Cir. 2015). It does not "demand 

explanations of the technical intricacies of the charges in the 

indictment." Id. (quotation marks omitted). And it does not call 

on the judge to "be precise to the point of pedantry" when 

"touch[ing] all of the appropriate bases." Id. 
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With that in mind, we look at what the judge here said, 

starting first with his comments on the conspiracy charge:3

Mr. Wipp, you're charged in . . . Count One that . . . 

you and the other defendants charged in the indictment 

knowingly and intentionally combined, conspired, and 

agreed, together and with each other, and with other 

persons known and unknown to the grand jury, to possess, 

with the intent to distribute, . . . more than five 

kilograms of a mixture or substance containing a 

detectable amount of cocaine. 

Wipp provides no convincing reason why this was error, say nothing 

of plain error, especially since our caselaw confirms that to prove 

this charge, the government would have to show that "(1) a 

conspiracy existed; (2) [Wipp] had knowledge of the conspiracy; 

and (3) [he] knowingly and voluntarily participated in the 

conspiracy." United States v. Delgado-Marrero, 744 F.3d 167, 190 

(1st Cir. 2014) (quotation marks omitted). He does not say, for 

example, what more the judge had to say. The net result is that 

he simply has not done enough with this issue to win on plainerror review. See generally United States v. Jones, 748 F.3d 64, 

69, 70 (1st Cir. 2014) (explaining that plain error is "a very 

stiff standard," adding that plain error is an "indisputable" 

error, given controlling precedent). 

 3 The emphases in all quotes from here on out are ours, by 

the way. 
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The same goes for his beef with the judge's comments on 

the drug charge. "And in Count Two," the judge noted, 

you're charged that . . . you and the other defendants 

charged in the case, aiding and abetting each other, 

knowingly and intentionally possessed, with intent to 

distribute, five kilograms or more of a mixture or 

substance containing a detectable amount of cocaine. 

Wipp again offers no persuasive reason to second-guess what the 

judge said, particularly since our caselaw also confirms that to 

prove this charge, the government would have to show that he 

"knowingly and intentionally possessed, either actually or 

constructively, a controlled substance with the specific intent to 

distribute." See United States v. Bobadilla-Pagán, 747 F.3d 26, 

32 (1st Cir. 2014). So just like before, he fails to clear the 

"high" plain-error "hurdle." See United States v. Hunnewell, 891 

F.2d 955, 956 (1st Cir. 1989); see also Jones, 748 F.3d at 70. 

Ditto regarding his complaints about the judge's 

firearm-charge comments. "[A]s charged in Count Three," the judge 

explained to Wipp, 

you knowingly and intentionally possessed a .40 caliber 

. . . Smith and Wesson pistol, . . . and two magazines 

containing 24 rounds of . . . ammunition in furtherance 

of a drug-trafficking crime, . . . which is what is 

charged in Count One, the conspiracy to possess, with 

intent to distribute, five kilograms or more of a mixture 

or substance containing a detectible amount of cocaine. 

Here too Wipp gives no compelling reason why these comments sink 

to the level of plain error, especially since our caselaw further 
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confirms that to prove this charge, the government would have to 

show that he "(1) committed a drug trafficking crime; (2) knowingly

possessed a firearm; and (3) possessed the firearm in furtherance 

of the drug trafficking crime." Bobadilla-Pagán, 747 F.3d at 35 

(quotation marks omitted). Once again, Wipp does not come even 

close to meeting his burden under the "oh-so demanding" plainerror standard. See United States v. Rodríguez-Soler, 773 F.3d 

289, 293 (1st Cir. 2014); see also Jones, 748 F.3d at 70. 

United States v. Figueroa-Ocasio, 805 F.3d 360 (1st Cir. 

2015), on which Wipp relies heavily, is distinguishable from our 

case on a variety of grounds. To name just one: Applying plainerror review, Figueroa-Ocasio vacated a defendant's guilty plea 

because the judge misstated the mens-rea element of the charged 

offenses. Id. at 368-72, 374. But nothing of the sort happened 

here — for the reasons just given. 

Taking a slightly different tack, Wipp insists that the 

judge failed to establish a satisfactory factual basis for his 

guilty plea on the firearm count. Specifically, after suggesting 

that he legally possessed the pistol, he says the judge "coaxed" 

him "into thinking it was sufficient that he merely possessed or 

owned" the gun to be guilty of the firearm crime and claims the 

government's proffer at the change-of-plea hearing did not link 
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him to that crime. Looking at this issue through the plain-error 

lens, we think his argument is a no-go. 

For starters, Wipp cites no authority — and we know of 

none — holding that if you legally possess the firearm in question, 

then you cannot be guilty of possessing a firearm in furtherance 

of a drug-distribution enterprise. So this line of attack fails. 

See generally United States v. Marcano, 525 F.3d 72, 74 (1st Cir. 

2008) (per curiam) (explaining "that plain error cannot be found 

in case law absent clear and binding precedent"). 

Also, after Wipp said he "had" the pistol "but never 

with that intention," the judge asked, "But did you possess it 

with the intent, in furtherance of a drug-trafficking crime?" And 

Wipp responded, "Yes." That dooms this facet of his argument. 

And as for Wipp's suggestion that the government offered 

too little to link him to the firearm crime, we say this: "The 

necessary [factual-basis] showing . . . is fairly modest." United 

States v. Ramos-Mejía, 721 F.3d 12, 16 (1st Cir. 2013). "[T]he 

the evidence need not conclusively demonstrate guilt beyond a 

reasonable doubt." Id. Instead, "the government need only show 

a rational basis in fact for the defendant's guilt" — or, to put 

the same point differently, "there must be some basis for thinking 

that the defendant is at least arguably guilty." Id. (quotation 

marks omitted). To establish possession of a firearm "in 
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furtherance" of a drug-trafficking crime, there must be "a 

sufficient nexus" between the firearm and the drug-selling 

operation "such that the firearm advances or promotes the drug 

crime." Bobadilla-Pagán, 747 F.3d at 35 (quotation marks omitted). 

We need not go into every jot of "in furtherance" law here. For 

present purposes, it suffices to say that in deciding "whether a 

sufficient nexus exists," we consider "whether the firearm was 

loaded, whether the firearm was easily accessible, the proximity 

of the firearm to the drugs, and the surrounding circumstances." 

United States v. Pena, 586 F.3d 105, 113 (1st Cir. 2009). And the 

facts proffered by the prosecutor below (and acquiesced in by Wipp) 

revealed that Wipp had an "operable" pistol on him during the drug 

conspiracy. The government argues that this shows a sufficient 

nexus between the firearm and the drugs to conclude that he was at 

least arguably guilty here. For his part, Wipp cites no cases — 

and we are aware of none — suggesting that a judge's decision to 

accept a plea in these circumstances constitutes plain error. 

Which means he cannot pass the plain-error test. See Jones, 748 

F.3d at 70; Marcano, 525 F.3d at 74. 

The bottom line is that nothing in Wipp's brief leads us 

to think there is any error, let alone plain error, lurking among 

his plea-related arguments. 
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There is one loose end to tie up, however. In another 

argument that débuts here, Wipp accuses the judge of not verifying 

that he had read the presentence report and discussed it with his 

lawyer. He says that this shows "how confused and apprehen[sive]" 

he "felt towards the district court and his prior defense counsel." 

And he claims that this "supports" his "contention that he did not 

have a healthy attorney-client relationship . . . with prior 

defense counsel" — a "factor" that could support an ineffectiveassistance-of-counsel claim, or so he argues. But because, to 

quote his brief, "the instant record is not sufficiently developed" 

on this score, we dismiss this claim, though he can renew it (if 

he chooses) via a petition for collateral review in the district 

court. See United States v. Maldonado, 708 F.3d 38, 46 (1st Cir. 

2013) (taking that approach in a similar situation). 

Conclusion 

For the reasons arrayed above, we affirm the judgment 

below, without prejudice to Wipp's right to revive his ineffectiveassistance claim on collateral review — naturally, we express no 

opinion on the merits of any such claim.