US v. Diaz-Concepcion

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Sandra L. Lynch, Appellate Judge and William J. Kayatta , Jr., Appellate Judge. Published. [16-1407]

Case: 16-1407

Document: 00117169609

Page: 1

Date Filed: 06/21/2017

Entry ID: 6101148

United States Court of Appeals
For the First Circuit
No. 16-1407
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS DÍAZ-CONCEPCIÓN,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before
Torruella, Lynch, and Kayatta,
Circuit Judges.

Leslie W. O'Brien on brief for appellant.
John A. Mathews II, Assistant U.S. Attorney, Mariana E. BauzáAlmonte, Assistant U.S. Attorney, Chief, Appellate Division, and
Rosa Emilia Rodríguez-Vélez, United States Attorney, on brief for
appellee.

June 21, 2017

Case: 16-1407

Document: 00117169609

LYNCH,

Circuit

Page: 2

Judge.

Date Filed: 06/21/2017

Carlos

Entry ID: 6101148

Díaz-Concepción

pled

guilty to a one-count information charging him with possession of
a firearm in furtherance of a drug trafficking crime, in violation
of 18 U.S.C. § 924(c)(1)(A)(i), after he was found to be in
possession of a loaded machine gun, two magazines loaded with
ammunition, thirteen individually packaged bags of cocaine, one
bag of marijuana, and $3,138 in cash while driving a motorcycle in
Puerto Rico. Consistent with the terms of the plea agreement DíazConcepción entered, the defense recommended a sentence of seven
years' imprisonment, and the government recommended a sentence of
ten years' imprisonment.

The district court imposed a sentence of

eight years' imprisonment, comfortably within the range of those
recommendations.
Díaz-Concepción appeals his conviction, arguing to us,
as he did not to the district court, that his plea was not knowing
and voluntary because the district court purportedly, in error,
failed to adequately explain to him the nature of the charged
offense during his plea colloquy. See Fed. R. Crim. P. 11(b)(1)(G)
(before accepting a guilty plea, a court must "inform the defendant
of, and determine that the defendant understands, . . . the nature
of each charge to which the defendant is pleading").
We hold that the district court committed no error in
accepting Díaz-Concepción's plea, much less the plain error he
must show to prevail in this appeal.
- 2 -

We affirm his conviction.

Case: 16-1407

Document: 00117169609

Page: 3

Date Filed: 06/21/2017

Entry ID: 6101148

I.
On October 19, 2014, Díaz-Concepción was pulled over by
officers of the Puerto Rico Police Department for driving a
motorcycle without a helmet.

During the stop, the officers

discovered that Díaz-Concepción was in possession of a loaded
machine

gun,

two

magazines

loaded

with

ammunition,

thirteen

individually packaged bags of cocaine, one bag of marijuana, and
$3,138 in cash. Díaz-Concepción was ultimately indicted on federal
charges of (1) possession of cocaine with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1); and (2) possession of a machine
gun in furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(B)(ii).
Following plea negotiations, Díaz-Concepción agreed to
waive indictment and plead guilty to a one-count information
containing only the firearm charge.

Notably, as a result of those

negotiations, the firearm charge changed, in that it no longer
alleged that the firearm at issue was a machine gun.1

The

government also agreed to drop the drug charge altogether.

1

Díaz-Concepción did well in his negotiations.
The
information charged that he "did knowingly and intentionally
possess a firearm . . . in furtherance of a drug trafficking
crime . . . in violation of [18 U.S.C. §] 924(c)(1)(A)(i)." A
violation of § 924(c)(1)(A)(i) carries a mandatory minimum
sentence of five years' imprisonment. In contrast, a violation of
§ 924(c)(1)(B)(ii) -- the provision applicable when the firearm at
issue is a machine gun -- carries a mandatory minimum sentence of
30 years' imprisonment.
- 3 -

Case: 16-1407

Document: 00117169609

On

April

20,

Page: 4

2015,

Date Filed: 06/21/2017

Díaz-Concepción

Entry ID: 6101148

signed

agreement and accompanying Stipulation of Facts.

a

plea

In signing the

Stipulation of Facts, Díaz-Concepción "agree[d] that [it was] a
true and accurate summary of the facts leading to [his] acceptance
of
§

criminal

responsibility

924(c)(1)(A)."

The

for

Stipulation

violating
of

Facts

18

U.S.C.

described

the

circumstances of the October 2014 traffic stop, including the items
that

were

found

in

motorcycle ride.

Díaz-Concepción's

possession

during

his

It stated that Díaz-Concepción "acknowledges

that he possessed a firearm in furtherance of a drug trafficking
crime [under 18 U.S.C. § 924(c)(1)(A)(i)]."

And it stated that,

"[h]ad this matter proceeded to trial, the government would have
[proven the aforementioned] facts beyond a reasonable doubt."
In

the

plea

agreement,

Díaz-Concepción

attested

as

follows: "I have read this [agreement] and carefully reviewed every
part of it with my attorney.

I fully understand this [agreement]

and voluntarily agree to it." As part of the agreement, the United
States formally agreed to "move to dismiss the [indictment in its
entirety]."
The

same

day

that

he

signed

the

agreement,

Díaz-

Concepción appeared at a plea hearing before a magistrate judge.
The judge first made sure Díaz-Concepción was competent and that
he understood the proceedings, making clear that he could freely
request

additional

clarification
- 4 -

or

repetition

and

could

ask

Case: 16-1407

Document: 00117169609

Page: 5

Date Filed: 06/21/2017

Entry ID: 6101148

questions or consult with his attorney at any time as to any issue.
The judge then recited the charge against Díaz-Concepción, showed
him his signed agreement, and received his assurance that he had
signed it voluntarily and with the advice of counsel.

Defense

counsel verified that she had explained the agreement to DíazConcepción,

and

Díaz-Concepción

confirmed

that

he

was

fully

satisfied with the legal advice and representation he had received.
After reviewing the contents of the agreement with DíazConcepción,2 the judge asked the government to state the facts that
the government would have proven if the case had gone to trial.
The government explained the facts as they were described in the
Stipulation of Facts appended to the agreement.

The government

concluded by stating that Díaz-Concepción "acknowledges that he
possessed a firearm in furtherance of a drug trafficking crime as
charged in Count 1 of the information," and the government would
have proven -- through "the testimony of law enforcement agents,
[the

testimony

of]

an

expert

chemist,

2

[and]

physical

and

The judge enumerated for Díaz-Concepción the various
rights he was waiving under the agreement.
As Díaz-Concepción
himself summarizes in his brief, he acknowledged that he was
"waiving his right to remain silent, to be presumed innocent, to
testify on his own behalf, to have a speedy trial, to cross examine
witnesses and challenge the evidence against him, to be found
guilty only upon a unanimous verdict, to compel attendance of
witnesses, to be assisted by counsel throughout the trial, to be
presumed innocent, to have the prosecution bear the burden of proof
beyond a reasonable doubt, and to make no admissions incriminating
himself."
- 5 -

Case: 16-1407

Document: 00117169609

Page: 6

Date Filed: 06/21/2017

Entry ID: 6101148

documentary evidence" -- that fact beyond a reasonable doubt in
the event of a trial.

The judge then asked Díaz-Concepción if the

facts as stated by the government were accurate, and he answered
in the affirmative.
Finally,

the

judge

sought

to

confirm

that

Díaz-

Concepción understood the charge against him. The judge explained:
"[T]he [one count in the] information . . . that you're pleading
guilty to [states that on October 19, 2014 you] 'did knowingly and
intentionally possess a firearm . . . [in] furtherance of a drug
trafficking

crime

.

§] 924(c)(1)(A)(i).'

.

.

in

violation

of

Do you understand this charge?"

[18

U.S.C.

After Díaz-

Concepción responded, "Yes," the judge asked, "Do you understand
you are pleading guilty to this charge?" and Díaz-Concepción again
responded, "Yes."
Having found that Díaz-Concepción acted competently,
knowingly, and voluntarily, and that "there[] [was] a basis in
fact for [the] plea," the magistrate judge recommended to the
district court that the plea be accepted and approved.

Díaz-

Concepción did not object, and the district court adopted that
recommendation.
Sentencing was held before the district court on March
21, 2016.

During his allocution, Díaz-Concepción acknowledged his

guilt, stating: "I know I committed this crime and I have to serve
my time for it."

As the plea agreement prescribed, the defense
- 6 -

Case: 16-1407

Document: 00117169609

Page: 7

Date Filed: 06/21/2017

Entry ID: 6101148

recommended a seven-year sentence, and the government recommended
a

ten-year

sentence.

The

court

noted

that

the

offense

of

conviction carried a statutory range of five years to life.
acknowledged

that

the

parties'

recommendations

reflected

It
the

benefit Díaz-Concepción had received -- through the omission in
the information of the facts that had appeared in the indictment
identifying his firearm as a machine gun -- in exchange for his
guilty plea.

The court then imposed a sentence of eight years.

At the conclusion of the proceedings, the court advised
Díaz-Concepción that, although he had agreed to waive his right to
appeal his conviction as part of his plea agreement, he could
pursue

an

appeal

if

he

felt

that

his

plea

was

unlawful

or

involuntary or that there was some fundamental defect in the
proceedings.

See United States v. Chambers, 710 F.3d 23, 27 (1st

Cir. 2013) (a waiver-of-appeal provision in a plea agreement does
not bar an appeal challenging the validity of the plea itself).
This appeal followed.
II.
On appeal, Díaz-Concepción argues that his guilty plea
was not knowing and voluntary and that, therefore, the district
court should not have accepted it.

He posits that that is because

the magistrate judge did not explain at the plea hearing the
elements of possession of a firearm in furtherance of a drug
trafficking crime -- namely, the requirement that the defendant
- 7 -

Case: 16-1407

Document: 00117169609

Page: 8

Date Filed: 06/21/2017

Entry ID: 6101148

was engaged in a drug trafficking crime (such as possession of
cocaine with intent to distribute) -- and, as a result, he did not
clearly understand the nature of the crime to which he pled guilty.
Given that Díaz-Concepción raises this issue for the first time on
appeal, he necessarily argues that the omission of an explanation
of the elements was plain error.

He claims that it is reasonably

probable that he would not have pled guilty if such an explanation
had been provided, given the purported weakness of the government's
evidence as to his intent to distribute the cocaine seized from
him.
To

prevail

under

the

plain

error

standard,

Díaz-

Concepción must prove "(1) that an error occurred (2) which was
clear or obvious and which not only (3) affected the defendant’s
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings."
States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).

United

He cannot make

this showing.
A.

There Was No Error
Díaz-Concepción's claim fails at the threshold question

of whether there was any error at all.

The error that Díaz-

Concepción alleges is a violation of Federal Rule of Criminal
Procedure

11(b)(1)(G).

That

rule

requires

a

court,

before

accepting a defendant's guilty plea, to "inform the defendant of,
and determine that the defendant understands, . . . the nature of
- 8 -

Case: 16-1407

Document: 00117169609

Page: 9

Date Filed: 06/21/2017

each charge to which the defendant is pleading."

Entry ID: 6101148

Fed. R. Crim. P.

11(b)(1)(G); see United States v. Delgado-Hernández, 420 F.3d 16,
19 (1st Cir. 2005) ("'[E]nsuring 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.'" (first
alteration in original) (quoting United States v. Gandia-Maysonet,
227 F.3d 1, 3 (1st Cir. 2000))).

Díaz-Concepción argues that the

court failed to explain explicitly to him that the commission of
a drug trafficking crime is an element of possession of a firearm
in furtherance of a drug trafficking crime and that, therefore, in
order to convict him under 18 U.S.C. § 924(c)(1)(A)(i) at a trial,
the government would have needed to prove beyond a reasonable doubt
that he intended to distribute cocaine found in his possession, in
violation of 21 U.S.C. § 841(a).
Rule 11 does not require a court to "employ a 'specific
script [or] set of magic words.'"

United States v. Ramos-Mejía,

721 F.3d 12, 15 (1st Cir. 2013) (quoting United States v. Ward,
518 F.3d 75, 83 (1st Cir. 2008)).

And it certainly "does not

require the court to explain the technical intricacies of the
charges,"

including,

elements.

Id. (quoting United States v. Cruz-Rivera, 357 F.3d 10,

13

(1st

Cir.

2004)).

in

most

"Under

cases,

the

ordinary

charges'

component

circumstances,

it

is

sufficient in a plea colloquy for a district court to 'ascertain
that a defendant is aware of the nature of the charge against him
- 9 -

Case: 16-1407

Document: 00117169609

Page: 10

Date Filed: 06/21/2017

Entry ID: 6101148

by reading the charge in the indictment to the defendant and
obtaining his competent acknowledgment that he understands the
charge.'"

Id. (quoting Delgado-Hernández, 420 F.3d at 26).
Our decision in Ramos-Mejía is instructive.

There, the

appellant claimed that the district court had erred under Rule 11
by failing to explain to him that knowledge and specific intent
were elements of the drug trafficking offense to which he pled
guilty; instead, the court had simply "read the charge from the
indictment

and

then

inquir[ed]

whether

appellant] had done." Id. at 14-15.

that

was

what

[the

We rejected the claim of

error, noting that the court had
assured itself of the [appellant's] competence
to plead, had the prosecutor summarize both
the plea agreement and the government's
available
proof,
.
.
.
obtained
the
appellant's
acknowledgment
that
those
summaries
were
accurate[,]
[had]
[t]he
appellant . . . confirm[] to the court his
desire "[t]o plead guilty [to] what [he was]
being accused of[,]" . . . made certain that
the appellant had read the indictment and
understood both the charge and the terms of
the plea agreement[,] . . . verified that the
appellant had reviewed these materials with
his attorney[,] . . . read aloud the charge
limned in the indictment, and [heard] the
appellant agree[] that he had knowingly
participated in that activity.
Id. at 15 (eighth, ninth, and tenth alterations in original); see
also United States v. Ramírez-Benítez, 292 F.3d 22, 27 (1st Cir.
2002) (finding "no [Rule 11] error" where "[t]he terms of the
indictment alone sufficed to put [the defendant] on notice of the
- 10 -

Case: 16-1407

Document: 00117169609

Page: 11

Date Filed: 06/21/2017

Entry ID: 6101148

charge to which he was pleading guilty[,] [the defendant] admitted
he understood the charge[,] and the court found him competent to
plead").

All of those steps were taken by the court here, and no

more was required.3
The record indicates that Díaz-Concepción sufficiently
understood the elements of the charged crime.

The plea agreement

itself contained a factual narrative that made explicit what the
government said it could prove. And it contained Díaz-Concepción's
unequivocal attestation that he understood that narrative and
agreed with the government's claim of proof.
memorialized

Díaz-Concepción's

review

of

The agreement also
its

contents

with

counsel.

All of this information was confirmed at the plea

hearing.

Finally, Díaz-Concepción was specifically on notice that

the predicate drug trafficking crime attendant to the charge of
possession of a firearm in furtherance of a drug trafficking crime
was possession of cocaine with intent to distribute, as that charge
had

appeared

alongside

the

firearm

3

charge

in

the

original

It is true that the ordinary requirements of Rule 11 may
be heightened in an extraordinary case "depending on the attributes
of the particular defendant, the nature of the specific offense,
and the complexity of the attendant circumstances." Ramos-Mejía,
721 F.3d at 15. But "[t]his is a run-of-the-mine case, involving
a mature defendant with a history of gainful employment [and some
college education]. The appellant was facing only a single charge
-- and that charge was not a complicated one. Moreover, the
circumstances
attendant
to
the
charged
crime
were
straightforward." Id.
- 11 -

Case: 16-1407

Document: 00117169609

indictment.

Page: 12

Date Filed: 06/21/2017

"Given these considerations, . . .

charge sufficed."

Entry ID: 6101148

a reading of the

Ramos-Mejía, 721 F.3d at 15.

There was no

error.
B.

Any Error Did Not Affect Díaz-Concepción's Substantial Rights
Even if Díaz-Concepción had established that a Rule 11

error occured and that the error was clear or obvious, his claim
would fail in any event at the third prong of plain error review.
That is, he cannot show a reasonable probability that, but for the
purported error, he would not have pled guilty.

See United States

v. Urbina-Robles, 817 F.3d 838, 842-44 (1st Cir. 2016).

Where, as

here, it is clear from the uncontested record that the government
would have had sufficient evidence to secure a conviction at trial,
an appellant's bare contention that he might have pled differently
if the elements of the charged offense had been expounded upon is
not enough to meet that standard.

See id. at 843-44.

In the end, Díaz-Concepción's argument dissolves into a
simple one -- that the government could not have easily proven
that he intended to distribute the cocaine found in his possession.
He is wrong.

The government had "ample evidence" of his intent to

distribute.

United States v. Andrade, 94 F.3d 9, 13 (1st Cir.

1996).
First, Díaz-Concepción was in possession of a large sum
of cash, totaling $3,138 -- one of the common "trappings of a drug
distributor."

United States v. Bobadilla-Pagán, 747 F.3d 26, 34
- 12 -

Case: 16-1407

Document: 00117169609

(1st Cir. 2014).

Page: 13

Date Filed: 06/21/2017

Entry ID: 6101148

Second, Díaz-Concepción was in possession of a

loaded machine gun and additional loaded magazines.

See id.

(intent to distribute can be inferred where drugs are found in the
vicinity of a loaded firearm); see also United States v. Bianco,
922 F.2d 910, 912 (1st Cir. 1991) ("[F]irearms are common tools of
the drug trade.").

And third, Díaz-Concepción's cocaine was

packaged in thirteen individual bags rather than in a single bag,
as one might expect if the drugs truly were intended solely for
his personal use.

See United States v. Pena, 586 F.3d 105, 112

n.8 (1st Cir. 2009) (intent to distribute can be inferred where
drugs are "packaged in individual . . . bags"); United States v.
Bergodere,

40

appellant's
"militated

F.3d

drugs

512,
were

toward

a

518

(1st

packaged

conclusion

Cir.
in

that

1994)

(the

that

individual

several

fact

bags

appellant

was

himself

argues

that

a

dealer").
To

the

extent

Díaz-Concepción

also

the

government could not have easily proven the existence of a nexus
between any drug trafficking he engaged in and his firearm, he is
wrong again.
protect

All of the common signs that the firearm was used to

drugs

and

drug

proceeds,

and

trafficking efforts, were present here.

thereby

further

drug

See Pena, 586 F.3d at

113; United States v. Garner, 338 F.3d 78, 81 (1st Cir. 2003).
First, Díaz-Concepción's machine gun was loaded, and he
had in his possession multiple additional magazines that were also
- 13 -

Case: 16-1407

Document: 00117169609

loaded.

Page: 14

Date Filed: 06/21/2017

See Pena, 586 F.3d at 113.

Entry ID: 6101148

Second, the firearm was

readily accessible to Díaz-Concepción, holstered as it was on his
waist.

See id.

Third, although the record does not disclose the

precise location of Díaz-Concepción's drugs, they were undoubtedly
in close proximity to the firearm on his person; given that he was
riding a motorcycle, the drugs were either also on his person or
mere feet away.

See id.

Finally, in addition to drugs, Díaz-

Concepción was also in possession of a large sum of cash, totaling
$3,138.

See id.

The government's proof of a nexus with drug

trafficking was overwhelming.

Cf. United States v. Grace, 367

F.3d 29, 31 (1st Cir. 2004) (finding sufficient evidence of a nexus
between a firearm and a drug trafficking crime for a conviction
where an unloaded firearm was discovered under a bed in a drawer,
no ammunition was found in the house, and the drugs were found in
a different room than the firearm).
In view of the strength of the government's evidence
that was more than sufficient to prove each element of the charged
crime, Díaz-Concepción cannot demonstrate a reasonable probability
that he would not have pled guilty if the court had simply listed
for

him

each

of

those

elements,

or

devoted

more

detail

to

describing how his conduct would satisfy the "in furtherance"
requirement.4

4

See Delgado-Hernández, 420 F.3d at 27.

To the extent that, in addition to his claim that the
district court violated Rule 11(b)(1)(G) by failing to explain to
- 14 -

Case: 16-1407

Document: 00117169609

Page: 15

Date Filed: 06/21/2017

Entry ID: 6101148

This conclusion is firmly reinforced by the substantial
benefit Díaz-Concepción received by pleading guilty.
Robles, 817 F.3d at 844.

See Urbina-

As part of his plea deal, the government

agreed to drop the drug charge against him and permitted him to
plead guilty to a version of the firearm charge that omitted any
reference to the automatic nature of his gun. By agreeing to these
terms, Díaz-Concepción was able to reduce the mandatory minimum
prison term he faced by 25 years.

In light of the evidence of his

guilt, it is not reasonable to think he would have rejected such
a deal and taken his chances at trial.
III.
Díaz-Concepción's conviction is affirmed.

him the elements of a § 924(c) violation, Díaz-Concepción
independently claims that the district court violated Rule
11(b)(3) by accepting a plea that he now purports lacked a
sufficient factual basis, that claim easily fails. Even if the
claim has not been waived as perfunctorily raised, see United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990), for the reasons
just recounted, the facts that the government proffered and that
Díaz-Concepción conceded easily provided the plea with "a rational
basis in fact[]."
Delgado-Hernández, 420 F.3d at 27 (quoting
Gandia-Maysonet, 227 F.3d at 6).
- 15 -