33 F.3d 125 (1st Cir. 1994), 93-2018, United States v. De Alba Pagan

Docket Nº:93-2018.
Citation:33 F.3d 125
Party Name:UNITED STATES of America, Appellee, v. Hector De ALBA PAGAN, Defendant, Appellant.
Case Date:August 26, 1994
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 125

33 F.3d 125 (1st Cir. 1994)

UNITED STATES of America, Appellee,

v.

Hector De ALBA PAGAN, Defendant, Appellant.

No. 93-2018.

United States Court of Appeals, First Circuit

August 26, 1994

Heard Aug. 2, 1994.

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Jorge L. Arroyo, San Juan, PR, by appointment of the Court, for appellant.

Jose A. Quiles-Espinosa, Sr. Litigation Counsel, Hato Rey, PR, with whom Guillermo Gil, U.S. Atty., Washington, DC, and Rosa Emilia Rodriguez-Velez, Asst. U.S. Atty., Hato Rey, PR, were on brief, for U.S.

Before SELYA, BOUDIN and STAHL, Circuit Judges.

SELYA, Circuit Judge.

On March 22, 1993, defendant-appellant Hector De Alba Pagan pled guilty to five counts of an indictment charging him, and twenty-three other persons, with various drug-trafficking offenses. On August 5, 1993, the district court, after first denying defendant's pro se motion to withdraw his earlier plea, 1 sentenced him to a lengthy prison term. This appeal followed.

Defendant makes several points. Distilled, these points reduce to three broad issues. We address those issues seriatim.

I.

Plea Withdrawal

Defendant contends that the district court erred in refusing to allow him to

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withdraw his guilty plea. We review a district court's decision to grant or deny a request to withdraw a guilty plea solely for abuse of discretion. See United States v. Parrilla-Tirado, 22 F.3d 368, 371 (1st Cir.1994); United States v. Doyle, 981 F.2d 591, 594 (1st Cir.1992); United States v. Pellerito, 878 F.2d 1535, 1538 (1st Cir.1989). Applying that standard, we discern no error.

It is settled that a motion to withdraw a guilty plea, made before sentencing, can be granted "only upon an affirmative showing of a 'fair and just reason.' " Parrilla-Tirado, 22 F.3d at 371 (quoting Fed.R.Crim.P. 32(d)). The burden of persuasion rests with the defendant. See id. In determining whether this burden has been carried, an inquiring court must consider the totality of the circumstances, focusing especially on four factors, namely, (1) the plausibility of the reasons prompting the requested change of plea; (2) the timing of the defendant's motion; (3) the existence or nonexistence of an assertion of innocence; and (4) whether the defendant's plea realistically may be characterized as legally suspect, say, because it was involuntary or otherwise in derogation of the requirements imposed by Fed.R.Crim.P. 11. See id. at 371; Doyle, 981 F.2d at 594; Pellerito, 878 F.2d at 1537. If, after due consideration, the defendant appears to have the better of this assessment, the court must then mull an additional factor: prejudice to the government. See Parrilla-Tirado, 22 F.3d at 371; United States v. Kobrosky, 711 F.2d 449, 455 (1st Cir.1983). Here, we do not reach the question of prejudice, for the defendant's claim, when measured by virtually every pertinent test, fails at the earlier stage.

We need not wax longiloquent. Defendant asserts three reasons for seeking to withdraw his plea, but two of them are hopelessly infirm and do not warrant discussion. His quest rises or falls, therefore, on his claim that, when he pleaded guilty, he "did not understand that, as a consequence of his plea, he would be sentenced [based partly] on relevant conduct that went beyond that which he admitted to in his statements to the court [at the change-of-plea hearing]." Appellant's Brief at 16-17.

On this chiaroscuro record, we cannot find that the lower court erred in refusing to credit this professed reason. After all, the court made it very clear to defendant that he would be sentenced in accordance with the provisions of the sentencing guidelines, informed him of the maximum possible punishment, asked him about promises or assurances beyond those limned in the plea agreement (defendant said there were none), and made certain that defendant was told quite pointedly that the matter of relevant conduct would be determined at sentencing.

To be sure, defendant claims to have had a subjective understanding to the contrary. 2 But where, as here, a court expressly retains the power to determine relevant facts bearing on sentencing under the guidelines, "a defendant cannot claim ... that the plea is rendered involuntary when the court exercises this power." United States v. Williams, 919 F.2d 1451, 1456 (10th Cir.1990), cert. denied, 499 U.S. 968, 111 S.Ct. 1604, 113 L.Ed.2d 667 (1991); accord United States v. Stephens, 906 F.2d 251, 254 (6th Cir.1990). In short, a defendant's lament that he misjudged the...

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