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____________________
No. 96-1420
Plaintiff, Appellee,
v.
Defendant, Appellant.
____________________
____________________
Before
____________________
____________________
April 7, 1997
____________________
Defendant-appellant
of
federal firearms
Millan
U.S.C.
accepted
Count
with possession of a
922(o),
imprisonment.
term of
laws.
carried
nine, charging
machine gun in
ten-year
imprisonment was
five years.
Noriega-Millan's plea
at
Noriega-
violation of 18
maximum
term
of
The district
joint
court
change-of-plea
Noriega-Millan
an
agreement which
stipulated
that
the government
would,
28,
sentence in
months
district
the
of
middle of
imprisonment.
court
recommendation
At
declined
of a
the applicable
to
the
87-108
sentencing hearing,
accept
97-month term
range of
the
and imposed
the
government's
the maximum
to be served concurrently as
to all
On
appeal, Noriega-Millan
argues that
his guilty
-22
bound by the
plea
if
the
he would
court
recommendations.
the sentence.
not be permitted
declined
We affirm
to
accept
to withdraw
the
the judgment of
to
his
government's
conviction and
I.
I.
which
Noriega-Millan's
plea
of
guilty
was
entered
and
Noriega-Millan's
agreement
the
plea
agreement
states that
the
Federal Rules
of
Criminal Procedure.1
The
agreement
of the indictment in
to
three levels
offense level by
upon
an estimated
total offense
level
of 28
and criminal
to
____________________
1.
subject
to
different
procedural
requirements
than
are
-33
recommendation of
sentence at
the
lower end
of
the
he initialed each
left margin,
the document.2
Paragraph
six of
the
agreement states
follows:
The
defendant
is
aware
that
the
the sound
discretion
judge and
will
which time
of
be imposed
the sentencing
in accordance
with the
United
States
Sentencing Guidelines,
_________________________________________
Policy
Statements,
Application,
and
_________________________________________
as
Background Notes.
________________
that
the
Court
authority to impose
jurisdiction
any sentence
and
within
If
a sentence up to
by statute,
to fulfill all
the
reason alone,
will remain
of the obligations
Paragraph
Rafael
bound by
ten of the
Court is not
____________________
2.
in
English; the
however,
transcript of
indicates
that
in the record on
appeal is
the change-of-plea
hearing,
Noriega-Millan
had
read
and
-44
sentencing
guidelines
calculations,
stipulations,
and/or
sentence recommendations."
In
contrast to
plea
agreements made
pursuant to
be withdrawn if
agreement;
once
accepted
by
the district
court,
Rule
other options."
(9th
forever the
defendant's
Cir. 1991).
For
a defendant pleads
judge
is required by
that the
Rule 11(e)(2) to
court is not
obligated to accept
the government's
The
Rule 11 proceedings of
by
the
district
determination of
stressed the
importance in
court
in
order
the voluntariness
to
facilitate
of a defendant's
the
guilty
plea.
In
McCarthy v.
________
addition,
defendant's
other
this
court
has repeatedly
acknowledgement
written document
requirement of
See
___
will
of a
United States v.
_____________
stated
signed plea
not substitute
personal examination by
that
the
agreement or
for Rule
the district
Martinez-Martinez, 69 F.3d
_________________
-55
467 (1969).
11's
court.
1215, 1220
S. Ct. 1343
Cir.), cert. denied, --- U.S. ---, 116 S. Ct. 259 (1995); see
_____ ______
___
also
____
United States v.
_____________
Kennell, 15 F.3d
_______
134, 136,
137 (9th
Cir. 1994).
represented
addressed
by
counsel.
himself to all
Although
the
three defendants
judge
sometimes
collectively, he
guilty;
the voluntariness
understanding of
attending
attorney
the
of
the charges
charges; and
his plea;
whether
he
his knowledge
and
the penalties
had consulted
his
plea agreement.
The
their
the court
addressed the
although
Noriega-Millan
defendants through an
sometimes
answered
interpreter,
the
court's
questions in English.
In response to
his
that
of
-66
had
that he
and
that
the total
offense level
was
28, based
was II
upon the
government's
recommendation of a
offense level
understood that
31 for
acceptance of responsibility;
the sentencing
to
the
that he
range specified in
the plea
pursuant
plea agreement,
the
government
would recommend
binding upon
the court.
to
each
defendants
with
defendant
rather
separately,
collectively.
Noriega-Millan's
During his
co-defendants,
than
to
all
the
individual colloquies
the
district
judge
obligated
to accept
the
defendant
court
did
not
government's
follow
the
the
government's
Noriega-Millan
withdraw
his
plea
and
that
the
recommendations.
warn
recommendations
that
in
he
the
would
event
-77
not
be
that
the
permitted
to
government's
On
as
November
2, 1995,
Noriega-Millan appeared
sentencing hearing,
district
as at
Millan that he
the
At the
change-of-plea hearing,
the
advise Noriega-
After
court
permitting
regarding
rehabilitate
his
himself,
Noriega-Millan
family
the
ties
district
and
to
his
court
address
desire
accepted
the
to
the
sentence but
of imprisonment,
maximum term
instead
of 108 months,
to be served
of
a 97-month term
sentencing Noriega-Millan
no
concurrent service
to
the
concurrently with
Noriega-Millan raised
II.
II.
Federal
which
Rule
of
Criminal Procedure
governs Noriega-Millan's
plea
11(e)(1)(B),
agreement, provides
procedure by which a
guilty in
exchange
government's
"make
for
the
agreement
to
defendant's
request,
for a
the understanding
-88
the court."
11(e)(1)(B)
a guilty
to a
Rule
that
if the
request the
court
does not
accept
the recommendation
or
right to withdraw
the plea."
Noriega-Millan
withdraw his
that
the
asserts
plea prior to
district
recommendation
court
that he
did
not
sentencing because he
would
follow
the
move to
had hoped
government's
to withdraw his plea if the district court did not follow the
government's recommendation.
court's
harmless
failure
to
give
He contends that
this
required
the district
warning
was
not
and,
therefore,
entered.
his
plea
was
not
knowingly
and
voluntarily
time on appeal.
Ordinarily, we deem an
district
court to
compliance with
be waived.
in the
We will,
however, determine
if a claim
of non-compliance
district court, if
is generally the
-99
the record
is
case because
of Rule 11(g)'s
complete
Martinez,
________
record
of the
69 F.3d
plea
at 1219
proceedings.
& n.4;
See
___
Martinez_________
United States
_____________
v. Parra______
Rule
11 proceedings
that is
alleged to
knowledge of
is
consistent
entirely
Procedure
11 and 32(e).
with
Federal
have
affected his
Rules
of
Criminal
to alleviate.
F.2d
280, 283
(1st
Cir. 1993)
(explaining
that "Rule
the plea,
are treated
ensure
the
Moreover,
court
"informed
Rule 32(e)
--
character of
Graibe, 946
______
voluntariness"
which provides
of
11
guilty
that the
to
pleas).
district
"any fair
before sentence is
______
imposed, but
____________________
3.
If the determination of
additional fact
direct
but must
appeal,
proceedings under
collaterally
28 U.S.C.
2255."
attack
seek relief on
the Rule
11
Martinez-Martinez, 69
_________________
Fed. R.
Crim. P. 32(e)).
-1010
that a defendant who seeks to set aside his guilty plea "[a]t
any later time" may raise the claim "only on direct appeal or
by
motion
defendant
under
28 U.S.C.
2255"
--
plainly allows
been imposed to
do so on direct
challenges
validity of
the
succeed only
or she
appeal.
a plea
for
96
F.3d
517, 522
&
time on
hurdle," and
can
11 proceeding itself."
Miranda-Santiago,
________________
a defendant
the first
faces a high
Where
United States v.
______________
nn.8,
9 (1st
Cir.
guilty
plea
1996).4
Because
"simultaneously
McCarthy,
________
defendant
waives
394 U.S.
who
several
at 466,
enters
constitutional
due process
rights,"
requires that
the
defendant's
and intelligent
relevant
circumstances
United States,
_____________
be a voluntary, knowing,
and
awareness of the
likely consequences,"
Brady v.
_____
____________________
4.
Although
that "[a]ny
by this rule
variance from
case.
As we
to
having
the law in
plea on direct
in
seeks
court, is
at 522
error
affect
"somewhat cloudy."
n.9 (citing
See
___
Miranda-Santiago, 96 F.3d
________________
Martinez-Martinez, 69 F.3d
_________________
at 1219-20).
-1111
defendants
enter
guilty
pleas
the
nature
of
who
understanding
of
consequences of their
(citations,
omitted).
internal
plea."
do
the
Lopez-Pineda,
____________
quotation
marks,
so
charge
with
full
and
the
55 F.3d at
695
and
alteration
district court
the
plea
and
"facilitates
that
the voluntariness of
determination
in
any
We determine the
of
the
Id. at 696
___
(citations omitted).
circumstances
surrounding
the
of the totality
Rule
11
hearing.
v.
The
effect of
a failure
to comply
with
Rule 11
that
be set aside
mere
technical
requirements.
"core concerns"
violations
of
1244.
the
is
of Rule 11
Rule 11's
core
rule's
procedural
his decision."
concerns are
for
47 F.3d at 4; United
______
-1212
and not
misled or the
Allard, 926
______
absence
This
F.2d at
of coercion,
understanding
of
consequences of the
at
the
charges,
and
guilty plea.
knowledge
See Cotal-Crespo,
___ ____________
F.2d at 1244-45).
of
the
47 F.3d
In determining
to
situation as opposed
to the ritual."
In
claiming
warnings,
he
did not
that, as
result
of the
understand
the
district
Rule 11(e)(2)
consequences of
his
Nonetheless, we cannot
"has
suffered no
concrete prejudice
the circumstances,
other than
entering a
the
district court's
failure to
advise
plea
did
not amount
proceedings and
to a
substantial
known
that
substantially
the plea
he
defect in
there
was
"The heart of
the matter
is
probability
of
receiving
plea agreement."
F.2d at
Kennell, 15
_______
F.3d at 136.
See
___
Allard, 926
______
Diaz-Vargas, 35 F.3d
___________
1221,
-1313
1535
(10th Cir.
1993).
The
record reveals,
F.3d 1533,
and Noriega-
Millan does
government's
ensured
the court
sentencing
recommendations,
that Noriega-Millan
government had
understood
agreed to recommend a
and
the
personally
that, although
the
Given
to follow
guilty
in exchange for a
highly
unlikely that,
97-month sentence, it
properly warned
of his
seems to us
inability to
would
have
chosen
possibility that
eleven
months
sentence.
to go
to
trial
rather
longer
than
We conclude that
the
than risk
the
impose a sentence
government's
recommended
Our conclusion is
in
which
11(e)(2) to
we
found
the
be satisfied
explicitly inform
supported by
Martinez-Martinez,
_________________
advisement
requirements
where the
district judge
of
Rule
did not
her guilty plea, but where the court "personally ensured that
[the
defendant] understood
[government's]
the
recommendation."
-1414
non-binding nature
69 F.3d
of
at 1223-24.
the
Our
which
found
the
district
court's failure
to
advise
the
to be harmless error.
1562, 1574-76
117
S. Ct.
1011
(1997); Diaz-Vargas,
___________
1987);
United States v. de
811
35 F.3d
F.2d 847,
le Puente, 755
U.S. ---,
at 1224-25;
848 (5th
Cir.
_____________
_____________
Noriega-Millan
disagrees
with
Martinez-Martinez.
_________________
the government's
the proposition
recommendations is logically
that the
notice
of
the
defendant of the
court
defendant is nonetheless
proposition
does
not
inform
the
of its responsibility
665, 669
bound if
former
latter proposition.
F.2d
distinct from
to inform the
defendant of the
(11th Cir.
1992); Theron,
______
849 F.2d
at 481;
Cir. 1983).
Noriega-Millan
contends,
warnings relate
in
to different
other
words,
that
the
two
Rule 11(e)(2)
This
Indeed, a
argument
number
of
is
not
courts have
-1515
without
held
logic
that
the
or
force.
district
court's failure to
withdraw
his
warn the
guilty
constitutes reversible
warning
that
it
recommendation is
See
___
United States
_____________
defendant of
plea
once
it
has
was
not
bound
his inability
been
to
accepted
by
the
government's
v. DeBusk,
______
976 F.2d
300, 307
(6th Cir.
107-108 (2d
946 F.2d
at
We
no inflexible
warning
as to
rule but
the
as considering the
non-binding nature
district court's
of the
government's
recommendations to
be an
element in the
harmless error.
district
plea is
court's
error
therefore we reject
should
circumstances that
to
be harmless
in
this
case and
his plea
III.
III.
For
the
foregoing
reasons,
the
judgment
of
________
-1616
-1717