from the United States District Court for the District of
Rhode Island. [Hon. John J. McConnell, Jr., U.S. District
Aidlin on brief for appellant.
Richard B. Myrus, Acting United States Attorney, and Donald
C. Lockhart, Assistant U.S. Attorney, on brief for appellee.
Lynch, Selya, and Boudin, Circuit Judges.
Boudin, Circuit Judge.
18, 2017, a Rhode Island federal grand jury charged
José Mercedes Leon ("Mercedes"), a citizen
of the Dominican Republic, with one count of illegal reentry
of an alien who had previously been removed from the United
States, 8 U.S.C. § 1326(a). The indictment charged
Mercedes with having "knowingly entered and [been] found
in the District of Rhode Island" on or about May 2,
2017, without having obtained the consent of the Attorney
General of the United States to return notwithstanding his
prior order of removal.
had previously been ordered removed from the United States on
three separate occasions and also had past convictions and
corresponding prison sentences for drug-related offenses,
felony assault with a machete, trespassing, and resisting
arrest. His May 2, 2017, arrest by Immigration and Customs
Enforcement ("ICE") authorities immediately
followed his release from state prison in Rhode Island, on
the heels of a conviction and six-month prison sentence for
heroin possession; ICE officials compared his fingerprints to
those found on prior warrants for his removal and discovered
course, Mercedes entered a straight guilty plea to the
section 1326 charge. Fed. R. Crim. P. 11. At the
change-of-plea colloquy, the district court confirmed that
Mercedes was competent to enter a plea of guilty, that he was
"voluntarily deciding to change [his] plea to
guilty," that he understood it was likely he would be
deported again, and that he understood that he was admitting
to the facts stated by the government as to his offense
conduct. The court accepted the plea and sentenced Mercedes
to 29 months' imprisonment and three years of supervised
release, although the guideline sentencing range was 46-57
now argues on appeal that the district court erred in
accepting his guilty plea because when he returned to the
United States in 2011, he was forced into crossing the
southern border and acting as a drug mule by Los Zetas gang,
which had kidnapped him in Guatemala; therefore, he claims
that he did not "voluntarily" re-enter the United
States and that his guilty plea therefore lacked an adequate
basis in fact. See, e.g., United States
v. Negrón-Narváez, 403 F.3d
33, 37 (1st Cir. 2005). Relatedly, he argues that the
district court violated Rule 11 by not ascertaining with
certainty at the change-of-plea colloquy whether Mercedes
understood the elements of the crime charged, Fed. R. Crim.
P. 11(b)(1)(G), namely, that in order to be convicted, he
must have voluntarily re-entered the United States.
deciding whether to accept a plea under Rule 11, a district
court must "ascertain whether the record permits a
conclusion that the plea has a rational basis in fact."
Negrón-Narváez, 403 F.3d at 37;
see also United States v.
Delgado-Hernández, 420 F.3d 16, 27 (1st Cir.
2005). The district judge must also ensure that the plea was
voluntary, knowing, and intelligent, and that the defendant
understands the nature of the charge to which he is pleading
guilty. Fed. R. Crim. P. 11(b)(1)(G) & (b)(2); see
also United States v.
Díaz-Concepción, 860 F.3d 32, 36 (1st
concedes that he did not raise his claims of error below in
connection with his change of plea, and therefore our review
is for plain error. United States v.
Urbina-Robles, 817 F.3d 838, 842 (1st Cir. 2016).
There was no error here, much less plain error, in the
district court's decision to accept the plea or in its
determination that Mercedes's guilty plea was knowing and
the "factual basis for the plea," Fed. R. Crim. P.
11(b)(3), there was plainly "an admission, colloquy,
proffer, or some other basis for thinking that the defendant
[was] at least arguably guilty," United States
v. Gandia-Maysonet, 227 F.3d 1, 6 (1st Cir.
2000). Mercedes was a serial violator of the immigration laws
and even if he was coerced in 2011 to cross the southern
border--a matter on which we take no view--he was hardly
forced into remaining in the United States for six years or
forced into entering Rhode Island, a non-border state, where
he was then "found" in 2017. See United
States v. DeLeon, 444 F.3d 41, 52 (1st
Cir. 2006) ("Where an alien is indicted under the
'found in' prong" of section 1326, "the
alien is deemed to have committed the offense at the moment
he was 'found.'").
respect to Mercedes' second argument, the transcript of
Mercedes' change-of-plea hearing is clear on its face
that the district judge walked Mercedes through the
consequences of pleading guilty, made sure that he had
discussed these issues with his attorney, and confirmed that
he was knowingly and voluntarily pleading guilty.
Mercedes's argument to the contrary rests on the same
flawed premise he advances above__namely, that his story
about his 2011 kidnapping somehow renders his having entered
and been found in Rhode Island in 2017 involuntary__and is
thus easily dismissed.
the argument that Mercedes reentered involuntarily in 2011
was not raised until the sentencing phase and was urged upon
the court by defense counsel as a mitigating factor
justifying a downward departure or variance from the
guidelines. The district court was never called upon by
defense counsel to vacate the plea based on this allegation,
nor would the court have ...