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Date: 04-08-2019

Case Style:

United States of America v. Jose Mercedes Leon

Case Number: 18-1600

Judge: Boudin

Court: United States Court of Appeals for the First Circuit on appeal from the District of Rhode Island (Providence County)

Plaintiff's Attorney: Richard B. Myrus and Donald C. Lockhart

Defendant's Attorney: Lisa Aidlin


On May 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.
Mercedes 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 a match.
In due course, Mercedes entered a straight guilty plea
to the section 1326 charge. Fed. R. Crim. P. 11. At the changeof-
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
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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 months.
Mercedes 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.
In 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
- 4 -
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 Cir. 2017).
Mercedes 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 intelligent.
As to 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.'").
- 5 -
With 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.
Finally, 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 had any reason to do so in light of the actual
allegations underpinning the indictment and guilty plea.

Outcome: Affirmed.

Plaintiff's Experts:

Defendant's Experts:


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