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United States v. Urbina-Robles

United States Court of Appeals, First Circuit

April 1, 2016

UNITED STATES OF AMERICA, Appellee,
v.
RICARDO URBINA-ROBLES, Defendant-Appellant

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[Copyrighted Material Omitted]

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          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Juan M. Pé rez-Gimé nez, U.S. District Judge.

         Kendys Pimentel Soto, with whom Kendys Pimentel Soto Law Office was on brief, for appellant.

         Francisco A. Besosa-Martí nez, Assistant United States Attorney, with whom Rosa Emilia Rodrí guez-Vé lez, United States Attorney, and Nelson Pé rez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellant.

         Before Howard, Chief Judge, Thompson and Barron, Circuit Judges.

          OPINION

Page 841

          BARRON, Circuit Judge.

          Ricardo Urbina-Robles (" Urbina" ) pled guilty to carjacking, 18 U.S.C. § 2119, and carrying a firearm during and in relation to a crime of violence, 18 U.S.C. § 924(c). The District Court sentenced him to a total of 360 months in prison. Urbina appealed. Finding no error that warrants the reversal of Urbina's conviction or sentence, we affirm.

         I.

         This case arises from a harrowing crime.[1] Early in the morning on February 4, 2013, Urbina and two accomplices broke into the victims' home in Puerto Nuevo, Puerto Rico. All three burglars wore masks and carried firearms. Once inside the home, the burglars tormented the victims, a father and son, both physically and mentally. They also stole several items, including a car. The robbers then drove away in the father's car, and the father called the police.

         A grand jury indicted Urbina for carjacking, 18 U.S.C. § 2119, and carrying a firearm during and in relation to a crime of violence, 18 U.S.C. § 924(c). Urbina initially pled not guilty. On November 14, 2013, however, Urbina moved to change his plea. At a hearing on November 27, 2013, he pled guilty to both counts of the indictment. Urbina entered a " straight plea," meaning that he pled guilty without entering into a plea agreement. On April 2, 2014, the District Court sentenced Urbina to a total of 360 months of incarceration.

         II.

         On appeal, Urbina first asks this Court to vacate his guilty plea to Count I of the indictment, which charges Urbina with committing carjacking in violation of 18 U.S.C. § 2119. That statute prohibits the taking of a motor vehicle that has been shipped in interstate commerce " from the

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person or presence of another by force and violence or by intimidation," if done " with the intent to cause death or serious bodily harm." Id. (emphasis added).

         The indictment does not refer to the words " the person or presence." Instead, the indictment simply charges Urbina with taking a motor vehicle " from N.D.R. [(the victim)], by force, violence, and intimidation" (emphasis added). Urbina contends that charging a defendant with taking a car " from" someone is not the same, legally, as charging a defendant with taking a car " from the person or presence" of someone. The former formulation of the crime, Urbina argues, does not require the same showing of the car's proximity to the person from whom it has been taken as does the latter formulation, which is the one that the carjacking statute uses. See United States v. Savarese, 385 F.3d 15, 18-19 (1st Cir. 2004) (discussing the proximity required by the carjacking statute). He thus argues that the indictment omitted an element of the crime for which he was charged.

         The Supreme Court has held, however, that defects in indictments are not jurisdictional and thus are subject to waiver. See United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (" [D]efects in an indictment do not deprive a court of its power to adjudicate a case." ); see also United States v. Mojica-Baez, 229 F.3d 292, 311 (1st Cir. 2000) (stating that an indictment's omission of an element is subject to plain error review). Accordingly, Urbina waived his right to bring this non-jurisdictional challenge when he pled guilty to the crime. See United States v. Diaz-Doncel, 811 F.3d 517, 518 (1st Cir. 2016) (holding that, absent exceptions not applicable here, an unconditional guilty plea waives nonjurisdictional challenges to a conviction).

         Nevertheless, Urbina does retain the right to challenge the validity of his plea. See United States v. Castro-Vazquez, 802 F.3d 28, 32-33 (1st Cir. 2015). And he challenges his plea on a number of grounds, including one that relies in part on the same contention about the indictment's misstatement of the " from the person of presence of" element. We now turn to those challenges.

         III.

         To argue that his guilty plea should be vacated, Urbina points to what he contends were the District Court's violations of various Federal Rule of Criminal Procedure 11 requirements at his plea colloquy. Urbina concedes that our review of the alleged violations is for plain error, because he did not raise them below. See United States v. Dominguez Benitez, 542 U.S. 74, 80, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). And so Urbina concedes that he must show as to each one " (1) an error, (2) that is clear or obvious, (3) which affects his substantial rights . . . and which (4) seriously impugns the fairness, integrity, or public reputation of the proceeding." United States v. Herná ndez-Maldonado, 793 F.3d 223, 226 (1st Cir. 2015) (quoting United States v. Correa--Osorio, 784 F.3d 11, 18 (1st Cir.2015)). Because we are dealing here with a conviction resulting from a guilty plea, to meet the third prong, Urbina must show that there is a reasonable probability that, but for the error, he might not have pled guilty. See United States v. Gandia-Maysonet, 227 F.3d 1, 4-5 (1st Cir. 2000).

         But while Urbina argues that he satisfies this standard as to each Rule 11 violation, he does not in fact meet it as to any. We start with the one that is closely tied to the omission of the " person or presence" language of § 2119 from Count I of the indictment. We then consider the others.

         A.

         During Urbina's plea colloquy, the District Court ...


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