United States v. García-Núñez

71 F.4th 1

UNITED STATES, Appellee, v. Omar Andres GARCÍA-NÚÑEZ, Defendant, Appellant.

No. 21-1419

United States Court of Appeals, First Circuit

June 15, 2023

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO, [Hon. Francisco A. Besosa, U.S. District Judge]

Carlos M. Sánchez La Costa, with whom Sánchez La Costa Law Firm was on brief, for appellant.

Julia M. Meconiates, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

Before Barron, Chief Judge, Thompson, Circuit Judge, and Burroughs, District Judge.^*

Burroughs, District Judge.

In November 2019, Defendant-Appellant Omar Andres García-Núñez ("García-Núñez") was charged with two counts related to his possession of a gun, ammunition, drugs, and items suggestive of drug trafficking. He pled guilty to one of the counts, possession of a firearm in furtherance of a drug trafficking crime, but later moved to withdraw his plea. The district court denied the motion and sentenced him to seventy-two months' imprisonment on that one count. García-Núñez now appeals the district court's denial of his motion to withdraw his plea. Finding no error, we affirm.

I. Facts and Prior Proceedings

Because García-Núñez pled guilty pursuant to a plea agreement "we draw the facts from the plea colloquy, the unchallenged portions of the presentence investigation report (PSR), and the transcript of the sentencing hearing." United States v. Bruzón-Velázquez, 49 F.4th 23, 26 (1st Cir. 2022) (quoting United States v. De la Cruz, 998 F.3d 508, 509 (1st Cir. 2021) (alteration omitted)).

A. The Offense and Arrest

On November 1, 2019, law enforcement agents executed a search warrant at the Villa Sabana Public Housing Project in Bayamon, Puerto Rico. In conducting the search, law enforcement agents seized a white box with $91.00 in cash, a small oval container that held a "green leafy substance" suspected to be marijuana, and an electronic scale "commonly used to weigh narcotics," all from the living room. From the kitchen, agents seized an orange plastic container with ten blue pills, and a black sock that contained a plastic bag with six rounds of nine-millimeter ammunition. In García-Núñez's bedroom closet, agents found and seized a small satchel that held $1,778 in cash and a drug ledger with names and quantities, a Black Peace Keeper rifle bag that held a loaded AR type pistol with a magazine with 27 rounds of .223 caliber ammunition and no serial number, as well as two additional loaded rifle magazines - one with 30 rounds and the other with 20 rounds of .223 caliber ammunition.

Later that afternoon at the police precinct, agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives read García-Núñez his Miranda rights. García-Núñez waived his right to remain silent and told the agents that everything seized from the apartment belonged to him.

On November 7, 2019, a grand jury indicted García-Núñez on two charges: (1) being a convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) ("Count One"); and (2) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) ("Count Two").

García-Núñez initially entered a plea of not guilty. On January 13, 2020, he signed a plea agreement in which he agreed to plead guilty to Count Two, possession of a firearm in furtherance of a drug trafficking crime. A change-of-plea hearing was held the same day. At that hearing, defense counsel notified the district court that the parties did not have the lab results for the substance believed to be marijuana. Defense counsel explained that he was alerting the district court to this fact because García-Núñez was pleading guilty to possessing a firearm in furtherance of a drug trafficking offense. At the district court's invitation, the government stated that the lack of results from the drug lab was not a bar to proceeding with the change—of—plea. The parties agreed to proceed with the plea.

During the ensuing colloquy, García-Núñez stated that he was not under the influence of medication, drugs or alcohol; that he had discussed the charges and the plea offer with his counsel; that he understood the charges against him, his rights, and the terms and consequences of the plea offer; and that he wanted to plead guilty. The details of the charges were read to García-Núñez multiple times, first by the prosecutor and then by the district court. After the district court described the counts brought against García-Núñez, including that he was charged with possessing a firearm and ammunition in furtherance of a drug trafficking crime, specifically, possession with intent to distribute a controlled substance, the district court asked, "Mr. García, is that what you did?" and García-Núñez responded "[y]es." The district court then followed up and asked, "[i]s that what you are pleading guilty to?" and García-Núñez again responded, "[y]es." The district court accepted the plea and set a date for sentencing.

Almost fifty days later, on March 3, 2020, García-Núñez moved under Federal Rule of Criminal Procedure 11(d) to withdraw his guilty plea, claiming that he was "legally and factually innocent" and that the government's version of the facts, which he had admitted to at the change—of—plea hearing, did not support a § 924(c) conviction because there was no factual basis for the underlying drug trafficking offense. García-Núñez further asserted that, although he admitted to possessing a firearm, the plea agreement did not specify that his possession was in furtherance of a drug trafficking offense. The government opposed the motion.

The district court denied García-Núñez's motion to withdraw his guilty plea without a hearing, finding that there was a sufficient factual basis for the underlying drug trafficking crime and the "in furtherance" element of the § 924(c) charge. United States. v. García-Núñez, No. 19-723, 2020 WL 2544902, at *1 (D.P.R. May 19, 2020). Regarding the underlying offense, possession with the intent to distribute a controlled substance, the court noted that the government was required to show that García-Núñez knowingly or intentionally possessed a controlled substance and that he intended to distribute it. Id. at *4. It also set forth several factors that the First Circuit has instructed lower courts to consider when determining whether a defendant had the intent to distribute, including, among others, the amount of drugs, the quantity of cash, and the presence of drug paraphernalia or firearms. Id. at *5. The court found that the government's statement of the facts at the plea hearing, which García-Núñez adopted, established an adequate factual basis for the underlying drug trafficking offense where García-Núñez had admitted to possessing a small amount of marijuana, a scale commonly used to weigh narcotics, a drug ledger with names and quantities, a large amount of money in cash, a loaded firearm without a serial number as well as two additional loaded magazines of ammunition. Id.

The court also found there was a sufficient factual basis to support that García-Núñez possessed a firearm in furtherance of the underlying drug trafficking crime because the loaded firearm and the loaded magazines were found in close proximity to $1,778 in cash and the drug ledger. Id. at *6.

The court rejected García-Núñez's claim of legal innocence because that argument required that there have been an insufficient factual basis for the plea, an argument the court rejected. Id. at *6-7. The court also observed that García-Núñez, in arguing that he was legally innocent, ignored all the inculpatory facts that he agreed to in the plea agreement and at the change—of—plea hearing and did not explain why he pled guilty or why he possessed a loaded firearm in close proximity to a large sum of money and a drug ledger. Id. at *7.

Finally, the court concluded that although the relative timeliness (almost 50 days) of García-Núñez's request to withdraw his plea improved his position, it did not require the court to allow the motion because timing is merely one factor and none of the other relevant factors weighed in his favor. Id. at *7-8.

On May 7, 2021, the district court sentenced him to seventy-two months' imprisonment. This appeal followed.

II. Discussion

A. The Factual Basis for the Guilty Plea

García-Núñez first argues that the district court erred by denying his motion to withdraw the guilty plea because his contention that the plea lacked a factual basis is a "fair and just reason to withdraw his guilty plea." Despite this framing, "the gist of the argument that he makes is not that the district court should have allowed him to withdraw the plea . . . , but, rather, that the court abused its discretion by accepting it in the first place." United States v. Negrón-Narváez, 403 F.3d 33, 37 (1st Cir. 2005). Therefore, we follow the course laid out in Negrón-Narváez and treat this challenge as a distinct claim in its own right. See id.

So viewed, García-Núñez contends that the district court erred by accepting his guilty plea because it allegedly lacked a factual basis. See United States v. Ventura-Cruel, 356 F.3d 55, 60-61 (1st Cir. 2003) (holding that, before entering judgment, a district court had the authority to accept and subsequently reject a guilty plea for lack of a factual basis). We review the district court's acceptance of a guilty plea for abuse of discretion. Negrón-Narváez, 403 F.3d at 37.

Rule 11(b)(3) of the Federal Rules of Criminal Procedure requires that "[b]efore entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea. . . . In other words, the court must decide that 'the defendant's conduct actually corresponds to the charges lodged against him.' " United States v. Laracuent, 778 F.3d 347, 350 (1st Cir. 2015) (...