[Copyrighted Material Omitted]
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO. Hon. Juan M. Pé rez-Gimé nez, U.S.
Pimentel Soto, with whom Kendys Pimentel Soto Law Office was
on brief, for appellant.
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.
Howard, Chief Judge, Thompson and Barron, Circuit Judges.
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,
case arises from a harrowing crime. 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.
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
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
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
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.
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).
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.
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).
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
Urbina's plea colloquy, the District Court ...