FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO Hon. Carmen Consuelo Cerezo, U.S. District Judge
Aidlin on brief for appellant.
A. Zuzman, Assistant United States Attorney, Rosa Emilia
Rodríguez-Vélez, United States Attorney, and
Amy E. Potter, Assistant United States Attorney, on brief for
Lynch, Circuit Judge, Souter, [*] Associate Justice, and Stahl,
SOUTER, ASSOCIATE JUSTICE.
defendant stands convicted of possessing a controlled
substance with intent to distribute it, 18 U.S.C. §
841(a)(1), and possessing a firearm in furtherance of a drug
trafficking crime, 18 U.S.C. § 924(c)(1)(A). His
convictions rest on guilty pleas entered under an agreement
that called for dismissal of other charges, including one of
possessing a machine gun in furtherance of a drug-trafficking
crime, which carries a mandatory 30-year minimum sentence, 18
U.S.C. § 924(c)(1)(B)(ii). He was sentenced to
imprisonment for 132 months, that being within the period the
Government was permitted to recommend under the terms of the
he was before the district court, he raised no timely
objection to the findings of guilt or to the sentence, but he
now appeals, arguing that his conviction on the gun charge is
invalid owing to the district court's acceptance of his
plea despite the court's failure to satisfy Rule 11 of
the Federal Rules of Criminal Procedure in two closely
related respects. One provision of the Rule required the
court to determine that there be a factual basis that would
justify a finding at trial that the gun possession was in
furtherance of the drug crime, see Fed. R. Crim. P.
11(b)(3); under the other provision, the court was obliged to
ensure that the defendant understood the legal nature of
possession-in-furtherance to which he pleaded, Fed. R. Crim.
P. 11(b)(1)(g). Because the claims go to the validity of the
plea, we do not find them barred by a waiver of appeal rights
that was contained in the plea agreement. But because the
defendant failed to raise the claims in the trial court, we
apply the plain error standard of review, under which he is
not entitled to relief.
demonstration of plain error "sufficient to undermine
confidence in the outcome of the proceeding, "
United States v. Dominguez Benitez, 542 U.S. 74, 83
(2004) (internal quotation marks omitted), requires a
defendant to show that the trial court committed error, which
was plain, and which affects the defendant's substantial
rights. See United States v. Olano, 507 U.S. 725,
732 (1993). Even then, the error does not require corrective
action unless the reviewing court so exercises discretion
upon finding that the error "seriously affects the
fairness, integrity or public reputation of judicial
proceedings." Id. The hurdle is a high one.
first at the adequacy of the Government's demonstration
in support of the plea that there was a factual basis for the
gun charge. "The necessary showing . . . is fairly
modest": the Government need not "support every
element of the charged crime by direct evidence, " or
demonstrate that the defendant is guilty beyond a reasonable
doubt. United States v. Ramos-Mejía, 721 F.3d
12, 16 (1st Cir. 2013). Rather, "the government need
only show a rational basis in fact for the defendant's
guilt." Id. "In other words, there must be
some basis for thinking that the defendant is at least
arguably guilty." Id. (internal quotation marks
violate § 924(c)(1)(A), the defendant must have
possessed the gun "in furtherance" of his drug
dealing, not merely in connection with his commission of a
drug offense, but "to advance or promote" it.
United States v. Gonsalves, 859 F.3d 95, 111 (1st
Cir. 2017); see H.R. Rep. No. 105-344 (1997), 1997
WL 668339, at *12. "In assessing whether a sufficient
nexus exists, we consider several factors: 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). We conclude
that any insufficiency of particularity required to satisfy
Rule 11(b)(3) on the offense charged here was far from plain.
case, the defendant's gun was found in the bedroom closet
of his apartment, and his stash of drugs was hidden in the
kitchen. As the defendant argues, "[t]he mere presence
of a firearm . . . where the drug offense occurred is
insufficient" to demonstrate possession "in
furtherance, " at least as a general rule. United
States v. Bobadilla-Pagán, 747 F.3d 26, 35 (1st
Cir. 2014). And the circumstances may require close proximity
of a stored gun and drugs in order to support an inference of
intent to advance or promote unlawful drug activity. See
United States v. Rios, 449 F.3d 1009, 1011-14 (9th Cir.
2006). Hence if the only facts ostensibly adduced here to
show "in furtherance" were the drugs and a
conventional gun far apart in the same apartment, existing
case law furnishes at least a serious argument that there
would have been error in accepting the guilty plea without a
showing of more specific facts indicating intent to further
the underlying drug dealing.
this is the very argument that the defendant makes, it fails
to account for a serious response to which it is vulnerable
on the facts of this case. Given the undisputed adequacy of
the Government's proffer to demonstrate that the
defendant was a drug dealer, a further specific fact in the
record is obviously significant: the weapon in question was
not just any gun, but a pistol that had been converted from
semiautomatic (as manufactured) to fully automatic, that is,
to a machine gun. The destructive capacity of the gun is
relevant circumstantial evidence of its purpose, see
United States v. Felton, 417 F.3d 97, 105 (1st Cir.
2005), and the legal status of machine gun possession is
particularly instructive on this point. Because possession of
a machine gun is criminal per se except for certain very
limited exceptions not relevant here, see 18 U.S.C.
§ 924(o), the law unequivocally precludes any option to
keep the gun for a lawful purpose, and supports the
likelihood that the actual purpose was unlawful: here,
furthering the defendant's drug crime. So does the fact
that the machine gun was loaded and within the same residence
as the drugs. See Pena, 586 F.3d at 113.
the facts on record, including the particular facts of the
loaded machine gun's exceptional destructive capacity and
the illegality of its possession, are at least arguably
sufficient to satisfy the requirement of demonstrating on the
record a factual basis for the "in furtherance"
element as required under Rule 11. If there is thought to be
any inadequacy on this point, it did not amount to error that
could be treated as plain.
what we have said has a bearing on the defendant's second
claim of Rule 11 error, that the court failed to address him
with enough care to determine that he understood the nature
of the "in furtherance" charge to which he was
pleading guilty. It is true that in his colloquy with the
defendant before accepting the guilty pleas, the trial judge
did not expressly invoke the definition of the term as
meaning to intend to advance or promote the underlying crime.
But, again, this is not tantamount to any plain failure to
show on the record that the defendant understood the meaning
of "in furtherance" to which he was pleading. The
concept of furtherance is not "esoteric, " see
Mack v. United States, 635 F.2d 20, 25 (1st Cir. 1980),
and the defendant's acknowledgement before the court that
the allegations were true is itself good evidence that he
understood this element of the charge, see United States
v. Cotal-Crespo, 47 F.3d 1, 6 (1st Cir. 1995). Moreover,
the defendant has failed "to show a reasonable
probability that, but for the error, he would not have
entered the plea." Dominguez Benitez, 542 U.S.
at 76. In particular, at the time the defendant entered his
plea, he was facing another charge that carried a 30-year
mandatory minimum term (possession of a machine gun in
furtherance of a drug-trafficking crime). The defendant's
plea allowed him to avoid conviction on that charge and to
obtain a much lower sentence. The defendant points to nothing
in the record to indicate that a more ...