APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. José Antonio Fusté, U.S. District Judge.
Cathryn A. Neaves, on brief for appellant.
Francisco A. Besosa-Martí nez, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
Before Torruella, Kayatta and Barron, Circuit Judges.
KAYATTA, Circuit Judge.
The district court in this case accepted the defendant's straight plea of guilty to firearms charges without taking all the steps necessary to determining that the plea was entered intelligently and knowingly. The district court also employed an erroneous illustration of the requisite mens rea in order to defuse the defendant's suggestion that he lacked the knowledge needed to support a conviction, thereby leaving us with a record in which it appears that a person pleaded guilty because he was misinformed about the elements of the crime. Finally, the district court also committed procedural error at sentencing by incorrectly calculating the applicable sentencing guideline range. We therefore vacate the conviction and the sentence and remand for proper consideration of the proposed plea and such further proceedings as are then called for.
David Figueroa-Ocasio (" Figueroa" ) and three others were charged in a four-count indictment alleging various gun offenses--namely, violation of 18 U.S.C. § 922(g)(1) (prohibited person in possession of a firearm); § 922(j) (possession of a stolen firearm); § 922(o) (possession of a machine gun); and § 922(q)(2)(A) (possession of a firearm in a school zone). The charges arose from a traffic stop that occurred at 2:20 a.m. on January 9, 2012, in San Juan, Puerto Rico. At the time of the stop, Figueroa was seated as a passenger behind the driver of the vehicle. The record does not indicate who owned the vehicle. Police found inside the vehicle three firearms, all Glock pistols--two during the traffic stop and one later, during an inventory at the municipal police precinct. It is not clear where the police found the first firearm, later determined to have been stolen, although the record suggests it may have been stashed between the vehicle's center console and the front seat. The second firearm was found somewhere " in the floor of the car." The record provides no evidence
as to where in the vehicle the police found the third firearm, which had been adapted to fire in fully automatic mode. None of the firearms were found on the persons of any of the defendants. There was no evidence as to who owned the firearms. Although the record states that the authorities conducting the search asked whether any of the defendants possessed firearms licenses, the record does not indicate how the defendants answered.
Figueroa was charged with possession of all three firearms in count 1, the " felon in possession" count. The other defendants were charged with aiding and abetting. In the other three counts, all four defendants were charged with possession of the respective firearms and with aiding and abetting.
II. The Change of Plea Hearing
On March 1, 2012, Figueroa appeared in the district court to enter a straight plea of guilty to the indictment. The hearing was conducted with the assistance of a court interpreter.
The hearing commenced uneventfully. Figueroa made it clear, both through counsel and personally, that he wanted to plead guilty. Defense counsel stated that his client " expressed to us that he would plead guilty rather than go to trial." The district court then confirmed with counsel that Figueroa was " pleading guilty to all the counts[,]" a " [s]traight plea." Defense counsel confirmed that Figueroa was " pleading guilty, period." Next, the court asked Figueroa directly whether he had " made a conscious decision to plead guilty to every single count of the Indictment. . . . Is that what you want to do, sir?" Figueroa answered, " Yes." The court asked Figueroa whether he was competent to plead, whether he believed that defense counsel was competent, and whether he had had ample time to discuss his case with counsel. The court did not directly ask Figueroa whether he was entering his plea voluntarily and of his own free will.
The district court went on to advise Figueroa of certain rights " that are waived when [one] plead[s] guilty[,]" including the right to trial by jury, the right to be convicted only upon proof beyond a reasonable doubt, the presumption of innocence, the right to cross-examination, the right to testify, and the right to remain silent. The court failed to advise Figueroa of the " right to plead not guilty, or having already so pleaded, to persist in that plea[,]" the " right to be represented by counsel--and if necessary have the court appoint counsel--at trial and at every other stage of the proceeding[,]" and the right " to compel the attendance of witnesses[.]" Fed. R. Crim. P. 11(b)(1)(B), (D), (E). The court concluded this initial colloquy by asking, " [D]o you still want to plead guilty in this case?" Figueroa answered, " Yes."
The district court then summarized the indictment. The court summarized count 1 thus: " [Y]ou are a prohibited person, a convicted felon, and you were in possession of a firearm." Summarizing count 2, the court stated, " [Y]ou possessed stolen firearms or you aided and abetted others in possessing stolen firearms." The court then described count 3 as " the illegal possession of a machine gun or aiding and abetting others in the possession of a machine gun." Counsel interjected, " It's an automatic gun," whereupon the court amended its explanation of the charge, stating, " It's an automatic gun, not a machine
gun."  Finally, the court described count 4 as charging that " firearms were possessed in a school zone or that you aided and abetted others in possessing firearms in a school zone." The court asked Figueroa whether he understood " that those are basically the charges," although it did not ask whether Figueroa understood the charges themselves. The court did ask Figueroa whether he understood that " the Government has to prove . . . who you are and your relationship to these facts alleged in the Indictment so that we can make an association between the facts alleged and you." Figueroa agreed that he understood. The court also asked Figueroa whether he understood that the Government had the burden of proving that all the actions alleged in the indictment " were entered into by you knowingly, willfully and unlawfully . . . with a bad purpose to disobey or disregard the law, and not because of mistake, accident, or other innocent reason. . . . [Y]ou were doing something that the law forbids and you knew it." Figueroa again agreed that he understood.
The district court then reviewed in detail the Government's burden of proof as to each of the counts. With regard to count 2, possession of a stolen firearm, the following exchange occurred:
THE COURT: Then another -- Count Two would be that one of those firearms . . . had been shipped or transported in interstate commerce knowing or having reasonable cause to believe that the firearm had been stolen.
Do you understand that?
THE DEFENDANT: He says he didn't know it was stolen.
THE COURT: You did not buy from an armory with a license for example?
[DEFENSE COUNSEL]: No.
THE DEFENDANT: No, no.
THE COURT: So would it be fair to say that there was a possibility when you bought it or wherever you bought it or found it or took it, God knows how it got there, it could have been stolen?
THE DEFENDANT: Yes.
With regard to count 4, alleging possession of a firearm in a school zone, the colloquy ran as follows:
THE COURT: Okay. And . . . on top of that, you and the others unlawfully possessed in and [a]ffecting interstate commerce the firearms and ammunition that we have been talking about within a distance of 1,000 feet of the ground of the Sagrado Corazon Academy school. I guess it's in Santurce?
THE DEFENDANT: Yes.
[DEFENSE COUNSEL]: Yes.
THE COURT: A place that you had reason to believe was ...