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USCA1 Opinion

March 1, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________
No. 93-2112
ANTHONY SIMON,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
___________________
____________________
Before
Boudin, Circuit Judge,
_____________
Bownes, Senior Circuit Judge, and
____________________
Stahl, Circuit Judge.
_____________

____________________

Anthony Simon on brief pro se.


_____________
Donald K. Stern, United States Attorney, and Joseph M. Walk
________________
_______________
III, Assistant United States Attorney, on brief for appellee.
___
____________________
____________________

Per Curiam.
__________
by the

United

Petitioner Anthony Simon appeals the denial


States District

Massachusetts of his

the

parties.

We

for the

motion to vacate, set

his sentence, pursuant


carefully

Court

to 28 U.S.C.

record in
affirm

this case

the

decision of

of

aside or correct

2255.
and

District

We have

the briefs
the

district

read
of the
court

essentially for the reasons given in its memorandum and order


dated August 25, 1993.
Simon

claims that

We add only the following.


the

record of

his

change of

plea

hearing indicates

that the

district court violated

Crim. P. 11(c)(1)

because it failed to establish

entered his guilty plea with


of
also

inquiry to

that the

court

to make

there is a

Id.
__

He

sufficient

factual basis

Fed. R. Civ. P. 11(f).

A failure to ascertain
to which

[was] entered."

failed

"satisfy it[self] that

for the plea."

that Simon

an understanding of the "nature

the charge[s] to which the plea


claims

Fed. R.

he was

that Simon understood the charge

pleading guilty

would

constitute a

"core

violation" of Rule 11 and mandate that the plea be set aside.


United States
_____________

v. Cotal-Crespo,
____________

(1st Cir. Jan. 30,


circumstances

1995).

surrounding

particular, "the

"[W]e review the


the

substance of

trial court, and what

No. 94-1354, slip

Rule

11

op. at

totality of the

hearing"

what was communicated

and,

in

by the

should reasonably have been understood

by the defendant, rather than the form of the communication."


Id.
__
Simon pled

guilty to

one count

of possession

of more

than one hundred grams of heroin in violation of 21


841(a)(1) and one count of
enterprise in violation
court asked

engaging in a continuing criminal

of 21

Simon whether

U.S.C.

848.

he understood

charges to which he was pleading guilty,


in

the affirmative,

Simon nor explained


count.
which

the court

would have

Simon

constituted

been

the nature of

the

and Simon responded


charges to

specific elements of

each

and

either

Simon

98, 103-04 (1st

plea hearing defective because

statement which should have


understand charge),
that

Simon

which

to

having

[in the two counts to

"exceptional

and defendant
___

that summary
circumstances"

United States v.
_____________

Cir. 1993) (finding


charge was neither

during plea

hearing made

put court on notice she

the prosector's statement


understood

to

Simon

admitted

in the ways indicated in


Since no

described

each offense

conduct by

indicate otherwise, see, e.g.,


___ ___

nor explained

evidence

the

in the offenses charged

Ruiz-Del Valle, 8 F.3d


_______________
change of

trial clearly

the elements of

offense.

the evidence."

exist which

offered at

forth all

which he pled guilty]

read

the

neither read the

to him the

pled guilty

"participated

of

Although

However, the prosecutor's statement of the evidence

facts which set


which

U.S.C.

the charges

did not

is sufficient
to

which

he

-3-

entered a plea.

Cotal-Crespo, slip op. at 10.


____________

It is also a

sufficient for finding that there was a factual basis for the
plea.

See United States v.


___ _____________

Fountain, 777 F.2d 351, 355 (7th


________

Cir. 1985), cert. denied, 475 U.S. 1029 (1986).


____ ______
Affirmed.
________

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