US v. Wipp-Kelly

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Kermit V. Lipez, Appellate Judge and Rogeriee Thompson, Appellate Judge. Unpublished. [15-2038]

Case: 15-2038

Document: 00117131570

Page: 1

Date Filed: 03/20/2017

Entry ID: 6077501

Not for Publication in West's Federal Reporter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
offense.1

a

firearm

"in

furtherance"

of

a

drug-trafficking

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.
thinks

that

his

plea

is

See Fed. R. Crim. P. 11(b).
invalid

because

the

judge

did

Wipp
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."
778

F.3d

375,

382

(1st

Cir.

2015).

United States v. Jones,
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."

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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]

conspiracy."

knowingly

and

voluntarily

participated

in

the

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

(1st Cir. 2014) (quotation marks omitted).
example, what more the judge had to say.

He does not say, for
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

firearm-charge comments.

his

complaints

about

the

judge's

"[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."
(quotation marks omitted).

Bobadilla-Pagán, 747 F.3d at 35

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 plain-

error 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.

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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?"
Wipp responded, "Yes."

And

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."
marks

omitted).

To

establish

possession

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of

Id. (quotation
a

firearm

"in

Case: 15-2038

Document: 00117131570

furtherance"
sufficient

of

a

nexus"

Page: 8

drug-trafficking
between

the

Date Filed: 03/20/2017

crime,

firearm

and

there
the

Entry ID: 6077501

must

be

"a

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.

Entry ID: 6077501

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.

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