Unpublished Disposition, 936 F.2d 580 (9th Cir. 1988)

MEMORANDUM^** 

Jose Luis Alcazar appeals his jury conviction for possessing heroin with intent to distribute, 21 U.S.C. § 841(a) (1), and carrying a firearm during the commission of a narcotics crime, 18 U.S.C. § 924(c) (1). He also challenges his mandatory minimum sentence imposed under 21 U.S.C. § 841(b) (1) (A). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

* Sufficiency of the Evidence

We will uphold a conviction if, viewing the evidence " 'in the light most favorable to the prosecution,' " it appears that " 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Orozco-Santillan, 903 F.2d 1262, 1264 (9th Cir. 1990) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original)).

A. Possession of Heroin with Intent to Distribute

Alcazar claims there was insufficient evidence to support his conviction for possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a) (1). We believe the evidence of Alcazar's guilt was overwhelming.

Through the testimony of Oscar Sanchez and the testimony of officers who worked on the investigation and participated in the arrest, the government established the following. After Sanchez became an informant, Sanchez and undercover Agent Jose Martinez made numerous taped phone calls to Alcazar during which the three discussed the prices and quantities that would be involved in the planned transaction; though the word "heroin" was not used, other narcotics terms were mentioned. During one of these conversations, Sanchez and Martinez agreed to meet Alcazar at a hotel room to make the exchange.

Alcazar arrived at the hotel in a truck driven by codefendant Juan Posades Alvarez. Narcotics agents were positioned around the hotel. Sanchez testified that he went up to Alcazar's room and asked to see the heroin. Alcazar then instructed Alvarez to take Sanchez down to the truck to show him the goods. As Alvarez was pointing out the bricks of heroin in the truck, Sanchez gave a prearranged signal to the narcotics agents, who arrived on the scene and arrested Alvarez. Alcazar was arrested as he was walking away from the hotel. The truck contained five bricks of "black-tar" heroin and a loaded and cocked Beretta .380 caliber pistol. Alvarez waived his Miranda rights and stated to the officers that, during their drive to the hotel, Alcazar had told him that he was arranging a heroin deal there.

On appeal, Alcazar makes essentially two arguments. First, he asserts that Sanchez's testimony was contradictory in places and that he was not a credible witness generally. Questions of credibility, however, are left to the jury. See United States v. Vaccaro, 816 F.2d 443, 454 (9th Cir.), cert. denied sub nom. Alvis v. United States, 484 U.S. 914 (1987). In any event, there was more than sufficient evidence to convict Alcazar even if the jury completely disregarded the testimony of Sanchez (which was somewhat, although not completely contradictory, inconsistent, and equivocating in places).

Second, Alcazar observes that he was not actually caught holding the drugs. The government need only show constructive or joint possession, however, and there was ample evidence from which a rational jury could infer that Alcazar had such possession of the heroin found in the truck. See United States v. Chambers, 918 F.2d 1455, 1457-58 (9th Cir. 1990). Alcazar's claim is meritless.

B. Carrying a Firearm During a Narcotics Crime

Alcazar also challenges the sufficiency of the evidence supporting his conviction for carrying a firearm during the heroin offense, in violation of 18 U.S.C. § 924(c) (1).

The Beretta pistol was seized from a truck in which Alcazar had recently been a passenger. It was located near the bricks of heroin. The arresting officers found a receipt for the pistol in Alcazar's pocket. Alcazar's thumb print was discovered on the gun. Contrary to Alcazar's assertions, the government did not have to present evidence that he was caught holding the gun. See United States v. Power, 881 F.2d 733, 737 (9th Cir. 1989); United States v. Stewart, 779 F.2d 538, 540 (9th Cir. 1989). We hold a rational trier of fact easily could have found Alcazar guilty beyond a reasonable doubt based on this evidence.

II

The Use of the Prior State Convictions

Alcazar appeals the district court's enhancement of his sentence under the mandatory minimum sentence provisions of 21 U.S.C. § 841(b) (1) (A) based on his two prior state narcotics convictions. He states two reasons why his guilty pleas to the charges were not knowing or voluntary. We review de novo whether a guilty plea was knowingly and voluntarily entered. Hays v. Kincheloe, 784 F.2d 1434, 1436 (9th Cir. 1986), cert. denied, 484 U.S. 871 (1987).

On January 29, 1988, Alcazar pleaded guilty in state court to one count of transporting cocaine and one count of transporting heroin. At Alcazar's guilty plea hearing, the judge confirmed that Alcazar had conferred with his attorney, and understood the implication of the impending guilty pleas, including the various constitutional rights he would waive by entering the pleas. ER at 32-35. The judge then asked Alcazar how he pleaded to the cocaine charge. Alcazar responded: "That charge I am not guilty of it, but I am pleading guilty just to get it over with." ER 36. The judge accepted this plea and then asked Alcazar how he pleaded to the heroin charge. Alcazar replied: "The same". The judge then inquired: "Guilty or not guilty?" Alcazar then stated: "Guilty." ER 37.

The judge then turned to the factual basis of the pleas:

With respect to the factual basis for the plea there is a Preliminary Examination transcript of a Preliminary Examination held before Judge Pasco on June 2nd, 1987, containing the testimony of two witnesses, Paul Ayoob and Brian Hyland.

Might there be a stipulation that the testimony of those two witnesses provides a factual basis for the pleas entered here?

[Defense:] Yes, your honor.

[State:] So stipulated.

THE COURT: Pursuant to that stipulation the Court finds there is a factual basis for the pleas.

ER 38.

The district court held a hearing pursuant to 21 U.S.C. § 851(d) (1) and determined that Alcazar's pleas had been knowing and voluntary. The court found that: (1) Alcazar had protested his innocence on the cocaine charge but not on the heroin charge; (2) the former plea was a valid Alford plea;¹  (3) Alcazar had consulted with his attorney and had understood the nature of the charges against him; and (4) there was a factual basis for the pleas based on the preliminary hearing transcript that the state judge considered at the plea hearing.

Alcazar's first claim is that he was not explained the elements of the offenses to which he pleaded guilty. See e.g., Henderson v. Morgan, 426 U.S. 637 (1976). Though Alcazar bore the burden of proof on this claim, 21 U.S.C. § 851(c) (2), he offered no evidence supporting it. His sole argument on appeal appears to be that the state judge himself was required to explain the elements of the offenses to him. This contention is meritless, however. An explanation of the charges by defense counsel is sufficient. Henderson, 426 U.S. at 647.

In the present case, Alcazar told the state judge that he had discussed the charges with his attorney. The charges were not complex. Moreover, Alcazar was familiar with the criminal justice system and there was no indication that he was of subnormal intelligence. Under these circumstances, we uphold the district court's finding that Alcazar understood the nature of the charges against him. See Marshall v. Lonberger, 459 U.S. 422, 437 (1983); United States v. Newman, 912 F.2d 1119, 1124 (9th Cir. 1990).

Alcazar's second claim is that the state judge did not inquire into the factual basis of his pleas. As the government observes, the rule that a judge must inquire into the factual basis of a plea derives from Fed. R. Crim. P. 11(c) (1), not the Constitution. Newman, 912 F.2d at 1123. Thus, as a general matter, the rule does not govern guilty plea proceedings in the state system. Id.

Alcazar responds that in Rodriguez v. Ricketts, 777 F.2d 527, 528 (9th Cir. 1985), we hinted that a defendant's protestation of innocence might impose upon the state judge a duty to explore the factual basis of the defendant's guilty plea.

We need not decide what effect to give our dictum in Rodriguez, because the record supports the district court's finding that the state judge did inquire into the factual basis of Alcazar's pleas.²  The state judge examined the preliminary hearing transcript, which contained the testimony of two witnesses implicating Alcazar in the crimes. Moreover, the judge obtained a stipulation from counsel that this testimony established the factual basis of the charges. We hold that, even assuming the state judge was required to explore the factual basis of Alcazar's pleas, the record indicates he did so.

AFFIRMED.