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United States v. Diaz-Concepcion

United States Court of Appeals, First Circuit

June 21, 2017

UNITED STATES OF AMERICA, Appellee,
v.
CARLOS DIAZ-CONCEPCION, Defendant, Appellant.

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

          Leslie W. O'Brien on brief for appellant.

          John A. Mathews II, Assistant U.S. Attorney, Mariana E. Bauzá-Almonte, Assistant U.S. Attorney, Chief, Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States Attorney, on brief for appellee.

          Before Torruella, Lynch, and Kayatta, Circuit Judges.

          LYNCH, Circuit Judge.

         Carlos 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 Díaz-Concepción 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. We affirm his conviction.

         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.

         On April 20, 2015, Díaz-Concepción signed a plea agreement and accompanying Stipulation of Facts. 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 for violating 18 U.S.C. § 924(c)(1)(A)." The Stipulation of Facts described the circumstances of the October 2014 traffic stop, including the items that were found in Díaz-Concepción's possession during his motorcycle ride. 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 or repetition and could ask 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 ...


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