USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 94-1403

UNITED STATES OF AMERICA,

Appellee,

v.

MARK A. FERGUSON,

Defendant, Appellant.

____________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya Zobel, U.S. District Judge]

___________________

____________________

Before

Boudin, Circuit Judge,

_____________
Lynch, Circuit Judge,
_____________
and Schwarzer,* Senior District Judge.
_____________________

____________________

Roderick B. O'Connor, for defendant, appellant Mark A.

____________________
Ferguson.
Thomas G. Frongillo, Assistant United States Attorney, for
___________________
the United States.

____________________

July 20, 1995

____________________

____________________

*Of

the

Northern

District

of

California,

sitting

designation.

LYNCH, Circuit Judge.

LYNCH, Circuit Judge.
_____________

On

June 24, 1993, a federal

grand jury returned a 38-count indictment

Mark A.

Ferguson and

twelve others

charging appellant

with violations

of the

by

drug

laws.

conspiracy

The

to

violation of

indictment

distribute

21 U.S.C.

charged

cocaine

Ferguson

with

(1)

cocaine

base

in

and

846 (Count

2), (2)

possession of

cocaine with intent to distribute in violation of 21 U.S.C.

841(a)(1)

(Count 4);

violation of 21 U.S.C.

(3) distribution

of

cocaine base

in

841(a)(1) (Counts 7, 8, 14, 17); (4)

distribution of cocaine in violation of 21 U.S.C.

841(a)(1)

(Count 11); (5) attempted distribution of heroin in violation

of 21

U.S.C.

846 (Count 12);

communication facility

(Counts

34, 35,

aiding and

the

and (6)

in violation

and 37).

unlawful use

of 21

Ferguson

U.S.C.

was also

abetting in violation of 18 U.S.C.

substantive drug counts (Counts 4,

of a

843(b)

charged with

2 on all of

7, 8, 11, 12, 14 and

17).

On December 3, 1993, Ferguson pled guilty to Counts

2, 7, 8,

11, 12, 14, 17,

34, 35, and

37 of the

indictment

pursuant to a written plea agreement with the United

Count 4 was dismissed.

sentenced

supervised

On April

States.

7, 1994, the district court

Ferguson to 120 months imprisonment and five years

release on Counts 2, 8, 14,

concurrently;

120 months imprisonment

-22

and 17, to be served

on Counts 7,

11, and

12, to be

served concurrently with one another

sentences

for

Counts

imprisonment

on

concurrently

with one

Counts 2,

Counts

8, 14, and

Ferguson

to

count.

On April

2,

pay a

8,

34,

14, and

35,

another and

17.

and

with

and with the

17;

and

37,

to

served

the sentences

special assessment,

12, 1994,

months

be

The district court

$500

48

for

also ordered

$50

Ferguson appealed,

for each

seeking to

withdraw his guilty plea.

Because

Ferguson

following the imposition

seeks

to

withdraw

of his sentence, he must

his

plea

show that

the

plea proceedings were

which

inherently

justice' or

demands of

Rule

results

'an omission

in

fundamental defect

complete

miscarriage

inconsistent with the

fair procedure.'"

32(e)] advisory

(quoting

marred by "'a

Fed. R.

committee's

rudimentary

Crim. P.

32(d) [now

to 1983

amendments

note

Hill v. United States, 368

______________________

of

U.S. 424

(1962)); see
___

also United States v. Japa, 994 F.2d 899, 902 (1st Cir. 1993)
____ _____________________

(stating that the

benchmark for setting

"a

fundamental defect

aside a plea

sentencing

is

justice").

Ferguson's appeal does not meet this standard.

Ferguson argues that

because the district

his plea

hearing

to

or

miscarriage of

his plea should be

court failed to take

determine

post-

that his

set aside

adequate steps at

guilty

plea

was

knowingly

and

contends that

voluntarily

the district

made.

Specifically,

court violated

Ferguson

Federal Rule

of

-33

Criminal Procedure 11(c)(1) by failing to explain the charges

to him and to determine that he understood the charges.

11(c)(1)

requires,

among

other

things,

that

the

Rule

court

accepting

the plea "address the defendant personally in open

court and

inform the defendant

defendant understands . . .

which the plea

Ferguson's

resulted from

determine that

the

(1) the nature of the charges to

is offered . .

plea neither

of, and

. ."

was a

The record shows

miscarriage

procedures inconsistent

of justice

with the

that

nor

rudimentary

demands of fair procedure.1

The record

of the plea

hearing demonstrates

the district court took a number of steps to ensure that

that

the

concerns underlying Rule 11(c) (particularly those underlying

11(c)(1))

his

age

were addressed.

(25)

and

The district court asked Ferguson

educational

background

Ferguson informed the court that he had

(11th

grade).

read the indictment,

had discussed it with his attorney, and that his attorney had

____________________

1.

Ferguson's

of

whether the district

He does

argument on appeal is limited to the question

court complied with

not argue that

with the

Rule 11(c)(1).

the district court failed

requirements of

Rule 11(d) when

to comply

it failed

to ask

Ferguson at the plea hearing whether his willingness to plead

guilty

resulted from discussions

government.
inquire
guilty

with the attorney

See Fed. R. Crim. P. 11(d)("The court shall also

___

as to whether
or nolo

the defendant's willingness

contendere

results from

between the attorney for the government

the

for the

defendant's attorney.").

11(d), therefore, has

Any

been waived.

prior

to plead

discussions

and the defendant or

argument

based on

See, e.g.,
___ ____

Rule

Pignons S.A.
____________

de Mecanique v. Polaroid Corp., 701 F.2d 1, 3 (1st Cir. 1983)

______________________________
(arguments

not

presented

in initial

waived).

-44

brief

on

appeal are

explained

to him

what it

meant.

The district

court also

asked Ferguson whether he understood that he had been charged

with crimes similar

to the ones that the

district court had

described

in

Yancy

earlier

the

hearing

to

Calhoun,

codefendant charged under the same counts who pled

the same

hearing.

description

Ferguson, who had

of the charges

guilty at

been present

for the

against Calhoun, stated

that he

did.2

Further, during the course of the plea hearing, the

district

court informed

indictment; it

informed him

faced; it informed

pleading guilty;

questions

to

of

of the

the

it ensured that

asked

if he

in

the

he

would be waiving by

the factual basis

in open court in

him

charges

potential penalties

him of the rights he

offense was presented

it repeatedly

Ferguson

of each

Ferguson's presence;

understood;

and

it

asked

of Ferguson about each of the substantive offenses

determine

government

conduct.3

whether

alleged

he

formed

understood

the

When Ferguson asked

basis

what

of

conduct

his

the

criminal

to be allowed to consult with

____________________

2.

Ferguson

Indeed,

he

had
had

also executed
executed the

written

agreement

plea agreement.

after

refusing to

execute an earlier one proffered by the government because he

did not like one of its clauses.

3.

The district court asked

Ferguson specifically about all

of the counts to which he was pleading

Count

2, the conspiracy charge.

guilty, except one --

Although the district court

did

not ask Ferguson specifically

about Count 2, the nature

of

the

explained

conspiracy

codefendant

charge

was

Patrick Culbreath

in

thoroughly

Ferguson's presence,

to
and

-55

his mother, he was

specifically

permitted to do

so.

Finally, the

court

asked Ferguson whether he was entering his plea

voluntarily and Ferguson replied that he was.

On appeal, Ferguson

counts,

Counts 8,

Ferguson

12,

appears to refer to

14, and

points out that during

17,

as being

only four

problematic.

the plea hearing, he denied

some of the factual foundations of these counts and exhibited

reluctance to admit that he

knew that drugs were involved in

the transactions underlying those

of

Ferguson's responses to

counts.

To be

the court's questions

sure, some

about his

involvement in Counts 8, 12, 14 and 17 show some confusion on

his part over the precise requirements for the offenses.

when

Ferguson gave such

responses, the district

additional

inquiries

of

understood

his role to have

Ferguson,

asking

been in the

him

offense.

But

court made

what

he

And when

questioned

on these counts, Ferguson often admitted to facts

sufficient

to

exhibited

uphold

a basic

the

charges

understanding of

government alleged

was

and, more

the

criminal.4

importantly,

conduct which

The

court's

the

detailed

____________________

Ferguson does not

claim on appeal that such

a procedure was

inadequate to apprise him of the nature of that charge.

4.
the

Count 8

was based on a July 16, 1992 drug transaction at

Brigham and

present.
drug
court,

Women's

Although

undercover

admitted

to

which

Ferguson

denied knowing that

upon further questioning

the

court

officer's vehicle and

delivering the cocaine would "be

on a September

at

at first Ferguson

sale was occurring,

he

Hospital

that

he

told him that

there."

from the

entered

the

the persons

Count 12 was based

15, 1992 attempted sale of heroin

-66

was

at the New

inquiry on these counts supports the conclusion that Ferguson

understood the

counts.

(1st

nature of

the charges

against him

on these

See United States v. Pellerito, 878 F.2d 1535, 1542

___ ___________________________

Cir.

1989)

(a

searching

Rule

11

inquiry

was

"a

circumstance of some importance" in showing that the district

court properly determined that

the defendant understood

the

nature of the charges to which he was pleading guilty).

Indeed, Ferguson's claim that he did not understand

the

nature

of these

clear admission at

a distribution

from a

charges is

seriously undercut

by his

the plea hearing of his guilt on Count 7,

charge under

21 U.S.C.

841(a)(1)

transaction in which Ferguson delivered

arising

cocaine to a

____________________

England Medical Center.

stated that Ferguson

As

to this

count, the

had delivered to an

government

undercover officer

three bricks of what was supposed to have been heroin and was
later

determined to be procaine,

a cutting agent.

Although

Ferguson initially denied his involvement in the transaction,

Ferguson
everything

eventually
it

agreed

with

stated regarding

the

government

the transaction

as

to

during the

plea hearing except its claim that he had been the person who
physically

delivered the bricks

He admitted being
believed

at the

involved in
time

of the

to the

undercover officer.

the transaction
transaction that

and that

he

it involved

drugs.
Count

14

involved

an

October

29,

1992

drug

transaction at a Farmer's Market on River Street in Boston at

which

Ferguson

was

present.

Again,

although

Ferguson

initially

indicated

that

he

was

unaware

that

drug

transaction was occurring when he was at the Farmer's Market,

he later stated that

while he was at the Farmer's Market lot

in his car he "surmised" that the transaction involved drugs.

Finally,
transaction
aided.

Count 17 involved a February 4, 1993 drug

at a Mobil gas station in Mattapan that Ferguson

As Ferguson notes

in his brief,

he admitted at the

plea hearing to delivering a message to one of the principals

that the transaction would go forward on a certain date.

-77

co-conspirator's

house

to

have

it

cooked

into

crack.5

Ferguson concedes on appeal that

the

charge contained in

like Count

7, were each

Count 7.

Counts 8

and 14, which,

charges of distribution

base in violation of 21 U.S.C.

identical in

he understood the nature of

nature to that

841(a)(1),

of cocaine

involved conduct

charged in Count 7,

and simply

involved acts occurring on different dates involving the same

basic

actions.

Similarly,

"attempt"

because

substance

distributed, was

charge.6

Under

of

these

the

Count 12,

chemical

while

styled as

composition

also essentially

circumstances,

of

an

the

a distribution

Ferguson

"should

____________________

5.

The

government has noted that because of this admission,

Ferguson's appeal, even if successful, will have no effect on

his term of imprisonment because Ferguson

was sentenced to a

concurrent 120 months of imprisonment

does

not mean

controversy,

that

this

however.

on Count 7.

appeal fails

The

other

to

This fact

present a

counts apparently

live
impose

longer periods of supervised release than Count 7 (five years

for Counts
Count

7)

2, 8, 14, and 17, as

and

assessment

each

($50 per

count

compared to three years for

increased

count).

the

Moreover,

amount

of

the

Ferguson may

face

collateral consequences for his convictions on the additional

counts.
(the

Cf. Benton v. Maryland, 395 U.S. 784, 787-91 (1969)

___ ___________________

existence

of

consideration of
there

may

be

convictions).

concurrent

sentences

challenges to multiple
collateral

not

bar

convictions because

consequences

Thus, there is

does

to

the

multiple

enough at stake in this appeal

to have us decide whether Ferguson may

properly withdraw his

plea as to the other counts.

6.

Ferguson's

involvement in Count

aiding and abetting

theory.

Whether

17 was presented

on an

or not Ferguson

fully

understood the subtleties of aiding and abetting law,

hearing he
being

acknowledged a

basic understanding

charged with facilitating

at the

that he

the offense when

was

he stated

that he told the undercover officer that the drug transaction

of February 4 was "on" for that night.

-88

reasonably have .

Crespo,
______

47 F.3d

. . understood,"

1, 4

(1st Cir.

United States v. Cotal________________________

1995), the

charges to which he was pleading guilty on

nature

of the

Counts 8, 12, and

14.

Although

nature of

the

the charges to

concern" of Rule 11, see

___

defendant's

which he

understanding

is pleading

is a

Cotal-Crespo, 47 F.3d at 4,
____________

of

the

"core

in the

absence of a total failure

cannot be set

aside unless

to address this concern, the plea

the irregularities

in the

plea

proceeding affect the defendant's "substantial rights."

Fed.

R. Crim. P. 11(h) ("Any variance from the procedures required

by this

be

rule which does not affect

disregarded.").

Ferguson has

substantial rights shall

not

articulated how

district court's

plea proceedings

rights.

not argue that he pled guilty

He does

did not commit.

affected his

the

substantial

to crimes he

He did not object to the presentence report,

which established a

factual basis for the plea.

Cf. United
___ ______

States v. Zorrilla, 982 F.2d 28, 30 (1st Cir. 1992) (district

__________________

court's failure to

harmless

determine factual basis for the

plea was

error under Rule 11(h) where the presentence report

and probable cause hearing

satisfied the elements

113 S. Ct. 1665

the

court

had

(1993).

revealed that appellant's conduct

of the crime charged),

Nor

conducted

cert. denied,
____________

does Ferguson suggest that

further

inquiry

into

if

his

understanding of the nature of the offense, he would not have

-99

pled guilty.

See
___

id. at 31
___

("As appellant has suffered

no

concrete prejudice other than entering a plea he now regrets,

we cannot set his plea aside.").

Given

deviation

11(h),

32(e)

that Ferguson

from the

Rule 11

not shown

requirements

it follows that he has

of showing

has

sufficient

to overcome

Rule

not met his burden under Rule

"'fundamental

defect which

inherently

results in a complete miscarriage of justice' or 'an omission

inconsistent

with

procedure.'"

Fed.

the

R.

rudimentary

Crim.

P.

32(d)

demands

[now

advisory committee notes to 1983 amendments.

entitled to withdraw his guilty plea.

of

Rule

fair

32(e)]

Ferguson is not

For the

foregoing reasons, Ferguson's

conviction is affirmed.
________

judgment of

-1010