United States v. Mastrapa

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 06-4512

JOSE ALEJANDRO MASTRAPA,

Defendant-Appellant.



Appeal from the United States District Court

for the Western District of Virginia, at Harrisonburg.

Glen E. Conrad, District Judge.

(5:05-cr-00038-gec)

Argued: September 28, 2007

Decided: December 12, 2007

Before NIEMEYER and DUNCAN, Circuit Judges,

and T. S. ELLIS, III, Senior United States District Judge for the

Eastern District of Virginia, sitting by designation.

Vacated and remanded by published opinion. Judge Niemeyer wrote

the opinion, in which Judge Duncan and Senior Judge Ellis joined.

COUNSEL

ARGUED: Neal Lawrence Walters, SCOTT & KRONER, P.C.,

Charlottesville, Virginia, for Appellant. Jean Barrett Hudson,

OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville,

Virginia, for Appellee. ON BRIEF: David I. McCaskey, Staunton,

Virginia; Michael Castiglione, Third Year Law Student, Matthew

2 UNITED STATES v. MASTRAPA

Dunne, Third Year Law Student, UNIVERSITY OF VIRGINIA

SCHOOL OF LAW, Appellate Litigation Clinic, Charlottesville, Vir-

ginia, for Appellant. John L. Brownlee, United States Attorney, Roa-

noke, Virginia, Ray B. Fitzgerald, Jr., Assistant United States

Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Char-

lottesville, Virginia, for Appellee.

OPINION

NIEMEYER, Circuit Judge:

After Jose Alejandro Mastrapa agreed with two other men to trans-

port several bags of groceries to a hotel room in Shenandoah County,

Virginia, undercover agents in the hotel found five pounds of

methamphetamine among the groceries and arrested Mastrapa along

with the two others. Mastrapa claimed that he had agreed to give the

two men a ride and help carry their grocery bags but that he did not

know them or what they were doing. Nonetheless, claiming that he

hoped to minimize his sentence, Mastrapa pleaded guilty to conspir-

acy to distribute 500 grams or more of methamphetamine, in violation

of 21 U.S.C. §§ 846 and 841(a)(1). At his Rule 11 colloquy, however,

Mastrapa refused, despite questioning by the district court, to admit

to the factual basis necessary to support the charges against him, and

the record included no evidence of Mastrapa’s mens rea. The district

court nonetheless proceeded to accept Mastrapa’s guilty plea and sen-

tenced him to 120 months’ imprisonment.

Because we conclude that Mastrapa did not admit the necessary

mens rea before entering his plea and the record contained no factual

basis to support that element of the offense, we vacate the judgment

entered on May 8, 2006, and remand for a new Rule 11 proceeding.

I

Through a confidential source, the Drug Enforcement Agency

("DEA") made an undercover purchase of slightly less than one

pound of methamphetamine on June 3, 2005, from Dany Vladir

Medina-Lovos ("Lovos") and Fidel Angel Chicas-Hernandez

UNITED STATES v. MASTRAPA 3

("Hernandez"). After completing that transaction, the confidential

source sought to arrange another purchase for 15 pounds of metham-

phetamine from the two men. On June 27, 2005, Lovos called the

confidential source and said that he could obtain five pounds, which

he would sell for $50,000, and that if that deal went well, he would

later obtain the additional ten pounds. The confidential source agreed,

and thereupon the two arranged a transaction for the five pounds the

next day — June 28, 2005 — in a hotel room in Shenandoah County,

Virginia.

On June 28, shortly before the transaction, Lovos called the confi-

dential source and told him that "they" would be arriving in two sepa-

rate vehicles, one of which would contain the drugs and would be

driven by his "cousin." Lovos explained that he wanted to use two

vehicles so that he could arrange to see the money before delivering

the drugs. Lovos and Hernandez arrived at the hotel in a blue Honda

and met with the confidential source for the purpose of seeing the

money. When the confidential source refused to show Lovos and Her-

nandez the money until he had seen the drugs, Hernandez left in the

blue Honda, leaving Lovos at the hotel room, and drove to a Burger

King parking lot, where the defendant Mastrapa was parked in a

brown Ford van loaded with several grocery bags. Hernandez sum-

moned Mastrapa and the two drove back to the hotel in the two vehi-

cles. Hernandez and Mastrapa then carried the grocery bags from

Mastrapa’s van into the hotel room. After the confidential source

observed five pounds of methamphetamine in the grocery bags,

Lovos, Hernandez, and Mastrapa were arrested by law enforcement

officers.

A grand jury indicted Mastrapa and the two others, as well as the

later uncovered supplier of the methamphetamine, for conspiracy to

distribute 500 grams or more of a mixture or substance containing

methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and

841(b)(1)(A), and Mastrapa and the two others for actually distribut-

ing 500 grams or more of a mixture or substance containing metham-

phetamine on June 28, 2005, in violation of 21 U.S.C. §§ 841(a)(1)

and 841(b)(1)(A).

Shortly before trial, Mastrapa decided to plead guilty to the con-

spiracy count without a written plea agreement, as he understood that

4 UNITED STATES v. MASTRAPA

Lovos and Hernandez would be testifying against him, and the gov-

ernment agreed to dismiss the distribution count. A magistrate judge

conducted the hearing at which Mastrapa was to tender the plea in

accordance with Federal Rule of Criminal Procedure 11. Because

Mastrapa was a political refugee of Cuba and neither spoke nor

understood English, an interpreter was present to translate.

At the plea hearing, Mastrapa admitted to driving the brown Ford

van and to carrying the grocery bags into the hotel room, but he stated

that he had not, before June 28, known Lovos and Hernandez and that

he did not know that anything was in the bags other than groceries.

The magistrate judge, however, relied on an affidavit presented by a

special agent of the DEA to find a factual basis for Mastrapa’s plea.

That affidavit stated that through surveillance Mastrapa was observed

in the brown Ford van at the Burger King parking lot; that he drove

the van to the hotel where the transaction was consummated; and that

he helped carry several grocery bags from the van to the hotel room.

There was no other statement in the affidavit about Mastrapa’s

involvement in the scheme or his knowledge of its true nature. On

noting, however, that Mastrapa did not specifically object to these

facts contained in the affidavit, the magistrate judge stated that he

would recommend acceptance of the guilty plea. Several weeks later,

the district judge accepted that recommendation without further

inquiry, by order dated March 6, 2006.

At sentencing two months later, Mastrapa again stated that he

pleaded guilty only to driving the van and to carrying the grocery

bags into the hotel room but that he did not know Lovos or Hernandez

or what they were about. Before proceeding with the sentencing, the

court observed, "I guess this is an Alford plea," and Mastrapa’s attor-

ney responded that "that would be one way of presenting this, yes,

sir." The district court then sentenced Mastrapa to the statutory mini-

mum of 120 months’ imprisonment. His counsel filed this appeal,

submitting a brief pursuant to Anders v. California, 386 U.S. 738

(1967), and representing that after a "conscientious examination of

the entire record . . . Mastrapa has no meritorious grounds for direct

appeal of his conviction and sentence." His counsel did question,

however, the sufficiency of the guilty plea’s factual basis.

Concerned about the adequacy of the factual basis for the guilty

plea, we invited the parties to submit supplemental briefs about the

UNITED STATES v. MASTRAPA 5

sufficiency of the Rule 11 proceeding and appointed the University

of Virginia School of Law Appellate Litigation Clinic to file a brief

on Mastrapa’s behalf. The sole issue now presented is whether there

was sufficient evidence in the record to provide a factual basis for

Mastrapa’s guilty plea, as required by Federal Rule of Criminal Pro-

cedure 11(b)(3).

II

For the first time on appeal, Mastrapa contends that "there was an

insufficient factual basis in the record to support [his] guilty plea,"

claiming that there was "no evidence in the record that [he] knew he

was carrying illegal drugs and thus knew he was participating in an

illegal conspiracy." See Fed. R. Crim. P. 11(b)(3); United States v.

DeFusco, 949 F.2d 114, 120 (4th Cir. 1991). He requests that we

notice and correct this error under Federal Rule of Criminal Procedure

52(b) by vacating the judgment and remanding for further Rule 11

proceedings.

The government contends — relying on the district court’s wide

discretion to determine whether a factual basis for a guilty plea

existed and noting that its evidentiary burden was minimal — that

because Mastrapa drove the brown Ford van, which was one of the

two vehicles that Lovos had told the confidential source would be

coming with the drugs, "the only rational inference is that Mastrapa

had a role, and even a particularly trusted role, in the conspiracy from

the beginning." Additionally, the government argues that the fact that

the confidential source was able to identify the methamphetamine

among the groceries in the grocery bags "supports the reasonable

inference that Mastrapa knew that the bags contained drugs." The

government thus asserts that the evidence showed that "more than a

slight connection" existed between Mastrapa and the drug-trafficking

conspiracy in which Lovos and Hernandez were concededly involved.

Because Mastrapa did not challenge the Rule 11 proceedings in the

district court, we review his challenge now for plain error. See United

States v. Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002). Under Fed-

eral Rule of Criminal Procedure 52(b), "[a] plain error that affects

substantial rights may be considered [on appeal] even though it was

not brought to the [trial] court’s attention," and we may correct a plain

6 UNITED STATES v. MASTRAPA

error that was material or affected the defendant’s substantial rights

if we conclude that the "error seriously affect[ed] the fairness, integ-

rity or public reputation of judicial proceedings." United States v.

Olano, 507 U.S. 725, 732 (1993) (internal quotation marks omitted);

see also United States v. Strickland, 245 F.3d 368, 376 (4th Cir.

2001).

In this case, Mastrapa pleaded guilty to Count I of the indictment,

charging him with "knowingly . . . conspir[ing]" with others "to

knowingly and intentionally distribute, and possess with the intent to

distribute, 500 grams or more of a mixture or substance containing a

detectable amount of methamphetamine," in violation of 21 U.S.C.

§§ 841(a)(1) and 841(b)(1)(A). See 21 U.S.C. § 846. To establish a

§ 846 violation, the government would have to prove (1) that

Mastrapa entered into an agreement with one or more persons to

engage in conduct that violated 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(A); (2) that Mastrapa had knowledge of that conspiracy;

and (3) that Mastrapa knowingly and voluntarily participated in the

conspiracy. See Strickland, 245 F.3d at 384-85; United States v. Wil-

son, 135 F.3d 291, 306 (4th Cir. 1998). Mastrapa’s knowledge,

accordingly, was an essential element to his guilt for violation of

§ 846.

The Rule 11 proceeding was conducted by a magistrate judge, who

ultimately recommended to the district judge that Mastrapa’s tender

of a guilty plea be accepted. The proceeding was conducted entirely

through an interpreter, inasmuch as Mastrapa did not speak nor under-

stand English. When the magistrate judge inquired into the factual

basis for the plea, the government introduced the affidavit of a DEA

agent filed earlier in the proceedings to support a criminal complaint

and arrest warrant for the defendants. After the affidavit was read to

Mastrapa in Spanish, the magistrate judge inquired of Mastrapa

whether anything in the affidavit was "untrue." Mastrapa first

objected to a reference in the affidavit to his participation in a tele-

phone call with conspirators while he was at the Burger King parking

lot, denying he participated in any such call. That portion of the affi-

davit, however, had already been stricken by the government and was

not proffered as a factual basis for the guilty plea. When the court

inquired further whether there was anything else in the affidavit that

was untrue, Mastrapa replied, "I’m just saying that I was used to carry

UNITED STATES v. MASTRAPA 7

[the bags] there. I did not know. I did not know what they were

doing." The court inquired further, "Is there anything else [in the affi-

davit] you contest besides that?" And Mastrapa replied, "Well, there

are a lot of things." Without pursuing the matter further, the magis-

trate judge then concluded, "I take that to mean nothing else comes

to mind right now that he contests." The court thereupon stated,

"After receiving the evidence concerning the evidentiary basis for the

plea of guilty to Count I, . . . it is the recommendation of this Court

that the plea be accepted and I will make that recommendation in

writing to the federal district judge."

The district court "accepted in whole" the recommendation of the

magistrate judge by order dated March 6, 2006, and, without further

comment, adjudged Mastrapa guilty of the conspiracy count.

Therefore, the only evidence in the record on which to find a fac-

tual basis for Mastrapa’s guilty plea was the affidavit of a special

agent of the DEA, which was considered in the context of Mastrapa’s

denying any knowledge of the conspiracy. While that affidavit

described a conspiracy between Lovos and Hernandez and how the

June 28, 2005 transaction was arranged between a confidential source

and Lovos, the only facts stated in the affidavit about Mastrapa’s role

were that surveillance observed that when Hernandez drove from the

hotel room to the Burger King parking lot, he met Mastrapa, who was

in a brown Ford van, and that Mastrapa was then observed to drive

the van to the hotel where Hernandez and Mastrapa unloaded several

grocery bags from the van and carried them into the hotel room.

There was no other evidence given about whether Mastrapa was

involved in planning the transaction, overheard its plans, or otherwise

knowingly participated in a drug transaction. Indeed, Mastrapa

advised the magistrate judge that he did not know Lovos and Her-

nandez and that he did not know what was going on. Throughout the

proceedings below, he consistently stated that these co-conspirators

asked him to give them a ride and to help them carry groceries and

that he knew neither of them nor anything about their drug transac-

tions.

The facts that Mastrapa protested the mens rea element of the con-

spiracy offense and that the affidavit failed to fill the gap should have

alerted the magistrate judge to explore further the discrepancy

8 UNITED STATES v. MASTRAPA

between Mastrapa’s acknowledgment of his guilt and his understand-

ing of what the crime entailed. As revealed during sentencing,

Mastrapa apparently thought that driving the vehicle and carrying the

groceries were sufficient to convict him even without knowledge of

the persons for whom he was performing those tasks, what they were

doing, or the fact that drugs were involved.

Because Mastrapa protested having any knowledge of the conspir-

acy or the drug crime and the only evidence in the record was the affi-

davit of the DEA agent, which likewise failed to provide evidence of

mens rea, the district court could not have found a sufficient factual

basis for the mens rea element of the conspiracy offense for which it

adjudged Mastrapa guilty. See Montgomery v. United States, 853 F.2d

83, 85-86 (2d Cir. 1988) (finding insufficient factual basis for plea

when the record did not show any admission by the defendant that he

participated in an illegal conspiracy).

Telling in this case is the fact that Mastrapa never changed his

position. In addition to his statements to the magistrate judge during

the Rule 11 proceeding, Mastrapa also told the probation officer that

he did not know what was going on during the drug transaction, and

he said the same thing to the district court at sentencing. When, at

sentencing, the district court expressed concern about whether

Mastrapa could receive credit for acceptance of responsibility,

Mastrapa stated:

I pled guilty to what I did. I pled guilty to taking a bag to

a hotel. I had never been with those people, involved with

them at any time, at any place. They just asked for a ride

and for me to take that bag for them. I never knew what was

in that bag. There was a lot of food there inside of that bag.

I did not know there was anything else in there. That’s what

I pled guilty to, not to selling drugs, not to being involved

in drugs, not with having anything to do with people that

have to do with drugs.

I’ve always been the type that goes from my job to my fam-

ily. I work 15 hours. I go from my home to my job and to

my family.

UNITED STATES v. MASTRAPA 9

Your Honor, I’m asking of you, I have my family here. My

wife is by herself. She has no one to help her. I’m asking

you for forgiveness for what I did, for taking that bag there.

I did not know what those people were doing. I was never

involved in any of that. If I must ask for forgiveness of that,

I am asking for forgiveness of that from you, Your Honor.

The district court thus found it necessary to recharacterize what went

on before the magistrate judge, even though the recharacterization

was inconsistent with the record. Obviously troubled, the court

observed, "I guess this is an Alford plea." Mastrapa’s counsel then

acknowledged, albeit somewhat unpersuaded, that that could be so.

Yet, an Alford plea was never discussed, tendered, or agreed to by

Mastrapa.

An Alford plea refers to a plea in which the defendant consents to

a prison sentence even though "he is unwilling or unable to admit his

participation in the acts constituting the crime." North Carolina v.

Alford, 400 U.S. 25, 37 (1970). The plea can be accepted, however,

only if the defendant (1) "intelligently concludes that his interests

require entry of a guilty plea" and (2) "the record before the judge

contains strong evidence of actual guilt." Id. (emphasis added).

Even if an Alford plea had been tendered and accepted, the out-

come could be no different. We have repeated uniformly that the

court must find a factual basis even for an Alford plea. See United

States v. Morrow, 914 F.2d 608, 611-12 (4th Cir. 1990). As we noted

in Morrow, "[a]lthough excellent reasons exist for permitting an

Alford plea, the logic underlying this type of plea is counter-

intuitive. . . . It is essential that a court accepting an Alford plea make

every effort to ensure that a defendant recognize precisely what his

plea entails." Id. at 612 n.6 (internal quotation marks and citation

omitted). The policy underlying these requirements is constitutionally

based to protect the innocent and to ensure that "guilty pleas are a

product of free and intelligent choice." Alford, 400 U.S. at 38 n.10.

Here, Mastrapa’s guilty plea was accepted at the conclusion of the

Rule 11 hearing, not on the basis of Alford, but on the erroneous

assumptions that the DEA’s affidavit contained enough evidence to

support a factual basis for the crime and that Mastrapa accepted that

10 UNITED STATES v. MASTRAPA

factual basis. When the district court apparently recognized this fail-

ure that had occurred in the Rule 11 proceeding, it recharacterized

that hearing as one on an Alford plea. But then it never explained an

Alford plea to Mastrapa, nor enlisted his agreement to enter into one.

Even if it had done so, however, it still would have had to be sure that

Mastrapa’s circumstances fulfilled the requirements of Alford, includ-

ing a record that demonstrated actual guilt. Alford, 400 U.S. at 37;

Morrow, 914 F.2d at 611-12.

Federal Rule of Criminal Procedure 11(b)(3) provides, "Before

entering judgment on a guilty plea, the court must determine that there

is a factual basis for the plea." (Emphasis added). The rule is intended

to ensure that "the court make clear exactly what a defendant admits

to, and whether those admissions are factually sufficient to constitute

the alleged crime." DeFusco, 949 F.2d at 120; United States v. Foun-

tain, 777 F.2d 351, 355 (7th Cir. 1985). The requirement to find a fac-

tual basis is designed to "protect a defendant who is in the position

of pleading voluntarily with an understanding of the nature of the

charge but without realizing that his conduct does not actually fall

within the charge." Fed. R. Crim. P. 11 advisory committee’s notes

(1966).

In determining whether a guilty plea has a factual basis, the district

court need not rely only on the Rule 11 plea colloquy; it "may con-

clude that a factual basis exists from anything that appears on the

record." DeFusco, 949 F.2d at 120. We review the lower court’s

determination for abuse of discretion. See Martinez, 277 F.3d at 531.

And we will not find an abuse of discretion so long as the district

court could reasonably have determined that there was a sufficient

factual basis based on the record before it. See id.; United States v.

Mitchell, 104 F.3d 649, 652 (4th Cir. 1997).

In this case, we find that the district court could not have found a

factual basis in the record for Mastrapa’s guilty plea in that the record

failed to demonstrate that Mastrapa had knowledge of the conspiracy

and that he knowingly and voluntarily participated in the conspiracy.

See Strickland, 245 F.3d at 384-85; Wilson, 135 F.3d at 306. It is

apparent from the transcript of the Rule 11 hearing that the magistrate

judge was put on notice that there was a deficiency in the factual basis

for the guilty plea. The court resolved the problem by asking

UNITED STATES v. MASTRAPA 11

Mastrapa whether he had any disagreements with the DEA’s affidavit

and, when Mastrapa responded that there were "a lot of things" that

he disputed, by taking that answer to mean nothing further is dis-

puted: "I take [Mastrapa’s answer] to mean nothing else comes to

mind right now that he contests." But even if nothing were contested,

the DEA affidavit, which was written to obtain an arrest warrant,

failed to provide evidence that Mastrapa’s role was knowing. The

affidavit stated simply that Mastrapa drove the van with the grocery

bags in it and helped carry the grocery bags into the hotel room.

And the district court’s resolution of the problem by concluding, "I

guess this is an Alford plea," did not resolve it in accordance with

either Alford or Rule 11. Neither the magistrate judge nor the district

judge engaged Mastrapa in any discussion about an Alford plea.

Most troubling to us is the fact that the record in this case seems

to reveal a basic misunderstanding by Mastrapa of what implicated

him in the conspiracy. Even when allocuting, he asked the court "for

forgiveness for what I did, for taking that bag there. I did not know

what those people were doing. I was never involved in any of that.

If I must ask for forgiveness of that, I am asking for forgiveness of

that from you, Your Honor." He explained that he pled guilty "not to

selling drugs, not to being involved in drugs, not [to] having anything

to do with people that have to do with drugs." He thought that by car-

rying the bag that had "a lot of food" inside of it, even though he did

not know it had drugs, he had unwittingly participated in a conspiracy

for which the American system would imprison him despite his lack

of knowledge. This apparent misunderstanding by Mastrapa has

resulted in a flawed guilty plea that affected Mastrapa’s substantial

rights. See Olano, 507 U.S. at 734. We conclude therefore that it is

appropriate to notice the district court’s plain error in this case.

We also decide to exercise our discretion to correct the error. To

allow a district court to accept a guilty plea from a defendant who did

not admit to an essential element of guilt under the charge and did not

voluntarily choose to enter an Alford plea would surely cast doubt

upon the integrity of our judicial process, particularly when Rule 11

proceedings were conducted entirely through an interpreter. See

Olano, 507 U.S. at 735-36.

12 UNITED STATES v. MASTRAPA

Because Mastrapa challenged the sufficiency of the factual basis

for his plea before our court and because we find that the factual basis

was insufficient, the appropriate remedy in these circumstances is to

vacate the judgment and remand to the district court for a new Rule

11 proceeding. See United States v. Carr, 271 F.3d 172, 180-81 (4th

Cir. 2001). In Carr, we adopted a "two remedy rule." Id. at 180.

When the error arises from the court’s state of mind (such as insuffi-

cient factual basis), the remand would be for a limited additional

inquiry into the factual basis, and when the error arises from the

defendant’s misperception (such as lack of voluntariness and knowl-

edge sufficient for the plea), the remand would be for a new Rule 11

proceeding. Id. at 180-81.

Although Mastrapa’s challenge to the proceedings and our holding

rest on the insufficiency of the factual basis, we note that this case

presents serious questions as to Mastrapa’s knowledge regarding his

guilty plea and the conduct to which he pleaded guilty. In Carr, we

noted:

A Rule 11 record that fails to reflect that the defendant vol-

untarily and knowingly entered a guilty plea requires a dif-

ferent cure than a record that does demonstrate the requisite

knowledge by the defendant, but fails to sufficiently reflect

the district court’s basis for accepting the plea. When the

record is deficient as to the defendant’s state of mind — and

this deficiency affects the defendant’s substantial rights —

the defendant may be entitled to plead anew.

Id. While the distinction between the court’s state of mind and the

defendant’s misperception is not clearly delineated in Carr, the Advi-

sory Committee Notes to Rule 11 do make clear that "[t]he normal

consequence of a determination that there is not a factual basis for the

plea would be for the court to set aside the plea and enter a plea of

not guilty." Fed. R. Crim. P. 11(b)(3) advisory committee notes

(1966). Thus, during the proceedings on remand, the district court

should consider the record as a whole, as it relates both to the volun-

tariness and knowledge of the plea and to the factual basis for the

plea, and proceed appropriately upon its conclusions on these matters.

VACATED AND REMANDED FOR FURTHER PROCEEDINGS

CONSISTENT WITH THIS OPINION