U.S. v. Gonzalez-Vazquez

• Decision Date: 02 August 1994
• Docket Number: D,No. 93-2042,GONZALEZ-VAZQUE,93-2042
• Citation: 34 F.3d 19
• Parties: UNITED STATES of America, Appellee, v. Jorgeefendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 19

34 F.3d 19

UNITED STATES of America, Appellee, v. Jorge GONZALEZ-VAZQUEZ, Defendant, Appellant.

No. 93-2042.

United States Court of Appeals First Circuit.

Heard Aug. 2, 1994.

Decided Sept. 8, 1994.

Jose A. Fuentes Agostini, with whom Dominguez & Totti, Hato Rey, PR, was on brief, for appellant.

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

Before SELYA, BOUDIN and STAHL, Circuit Judges.

SELYA, Circuit Judge.

This criminal appeal requires that we ascertain whether the district court erred either in denying appellant's motion to retract his guilty plea or in adding a two-level weapons enhancement when calculating the guideline sentencing range (GSR). Detecting no error, we affirm.

I. The Background

On March 26, 1993, defendant-appellant Jorge Gonzalez-Vazquez (Gonzalez) pleaded guilty to conspiracy to import heroin, and conspiracy to possess heroin with the intent to distribute it. See 21 U.S.C. Secs. 963, 846, 952(a), and 841(a)(1). The charges grew out of a sophisticated scheme or series of schemes, lasting more than 15 months, in which appellant and 23 codefendants imported large quantities of heroin from Hong Kong into the United States, and then distributed it. Appellant played numerous roles in this elaborate plot, sometimes buying heroin overseas, sometimes purveying drugs domestically, sometimes acting as a courier, and sometimes serving as a bodyguard.

In return for appellant's guilty plea, the government agreed to recommend a sentence at the low end of the GSR--but the agreement contained no stipulation as to the parameters of the GSR. The government also agreed to drop several other charges levelled against appellant. One charge remained unresolved: a count accusing appellant of using or possessing a firearm during and in relation to a drug-trafficking offense, in violation of 18 U.S.C. Sec. 924(c)(1). ¹ As to that count, the plea agreement preserved appellant's right to trial.

Approximately four months after tendering his guilty plea, appellant moved to withdraw it. The district court denied his motion. At the disposition hearing, the court invoked U.S.S.G. Sec. 2D1.1(b)(1) and boosted the base offense level (BOL) for appellant's possession of a dangerous weapon. ² After other adjustments had been made and appellant's criminal history score had been computed, a GSR of 262-327 months emerged. The prosecution recommended an incarcerative sentence at the nadir of the range, and the district court obliged. Apparently content not to exact a last pound of flesh, the government then moved to dismiss the unresolved firearms count. The court granted the government's motion. This appeal followed.

II. The Motion to Withdraw

Appellant challenges the district court's denial of his plea-withdrawal motion, asserting that he advanced a "fair and just reason" for retracting his guilty plea, and that the district court should have given him safe passage. His asserted reason masquerades as a claim that, when he tendered his plea, he did not fully understand its consequences. Stripped of rhetorical flourishes, however, appellant's core complaint appears to be that he did not realize that his GSR would be so formidable.

Even prior to the imposition of sentence, a defendant does not have an unqualified right to withdraw a guilty plea. See United States v. Parrilla-Tirado, 22 F.3d 368, 371 (1st Cir.1994); United States v. Buckley, 847 F.2d 991, 998 (1st Cir.1988), cert. denied, 488 U.S. 1015, 109 S.Ct. 808, 102 L.Ed.2d 798 (1989). Rather, a presentence motion to retract a plea 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)). ³ The burden of proof rests with the defendant. See United States v. De Alba Pagan, 33 F.3d 125, 127 (1st Cir.1994); Parrilla-Tirado, 22 F.3d at 371. In deference to the intimate tri-cornered relationship among trial judge, prosecutor, and criminal defendant, we review a district court's denial of a request to withdraw a guilty plea solely for abuse of discretion. See United States v. Doyle, 981 F.2d 591, 594 (1st Cir.1992); United States v. Pellerito, 878 F.2d 1535, 1538 (1st Cir.1989).

Federal courts use a multi-factor test as an aid in ascertaining whether a proffered reason for withdrawal meets the criteria of Rule 32(d). This test is familiar, see, e.g., De Alba Pagan, 33 F.3d at 126-27; Parrilla-Tirado, 22 F.3d at 371; Doyle, 981 F.2d at 594; Pellerito, 878 F.2d at 1537, and does not bear reiteration. Instead, we proceed directly to a factor-by-factor examination of appellant's plaint.

1. Plausibility. Appellant claims that his decision to plead guilty was based upon the government's agreement to recommend a sentence at the low end of the GSR--a recommendation that, to appellant's way of thinking, meant 210 months. But that assumption stemmed from a miscalculation on appellant's part--a miscalculation fueled by his hope that there would be no weapons enhancement. It is a fact of law and life, too basic to warrant citation of authority, that a criminal defendant cannot jettison a guilty plea knowingly, intelligently, and voluntarily made merely because the sentencing judge calls a tune that is not to the defendant's taste. It is a corollary of this principle that, as we recently stated in a case comparable to this one, "the fact that a defendant misapprehends the likely guideline sentencing range does not constitute a fair and just reason for withdrawing a guilty plea." De Alba Pagan, 33 F.3d at 127; accord United States v. Williams, 919 F.2d 1451, 1456-57 (10th Cir.1990), cert. denied, 499 U.S. 968, 111 S.Ct. 1604, 113 L.Ed.2d 667 (1991); United States v. Garcia, 909 F.2d 1346, 1348 (9th Cir.1990); United States v. Bradley, 905 F.2d 359, 360 (11th Cir.1990); United States v. Stephens, 906 F.2d 251, 253 (6th Cir.1990); United States v. Jones, 905 F.2d 867, 868-69 (5th Cir.1990); United States v. Sweeney, 878 F.2d 68, 69-71 (2d Cir.1989).

This is a particularly weak case for a defendant to suggest that we should bend the rule. The transcript of the change-of-plea hearing makes it pellucid that Gonzalez knew at the time that, regardless of the eventual outcome of the then-unresolved weapons charge, he still faced the prospect of an enhanced BOL at sentencing. During the hearing, his counsel stated in open court and in appellant's presence:

I have also informed Mr. Gonzalez that it is the position of the U.S. attorney that, in the event that he would be acquitted of the gun charge, that is count 23, that they could ask or it could be possible that he would be found with a two point enhancement at the moment of the sentencing hearing.

Counsel added that he explained to Gonzalez that this tactic "could possibly increase his offense level...." Hence, the ambush of which appellant now complains was no ambush at all, but, rather, a frontal assault, with the government's troops marshalled in plain view from the very onset of hostilities. Appellant's articulated reason for seeking to scuttle his guilty plea is, therefore, not plausible.

2. Timing. The timing of a motion to withdraw a guilty plea often serves as a gauge for measuring the legitimacy of a proffered reason. Belated requests, even if made before sentencing, are generally regarded as afterthoughts. Consequently, the "longer a defendant waits before moving to withdraw his plea, the more potency his motion must have in order to gain favorable consideration." Parrilla-Tirado, 22 F.3d at 373; accord Doyle, 981 F.2d at 595; Pellerito, 878 F.2d at 1541.

Here, appellant waited approximately four months after pleading guilty and two months after the release of his presentence investigation report (PSI Report) before moving to retract his plea. ⁴ Given the totality of the circumstances that pertain here, appellant's lassitude serves to cast considerable doubt upon the legitimacy of his professed reason for seeking to change course.

3. Assertion of Innocence. "In determining whether a proposed plea withdrawal is fair and just, a defendant's assertion of innocence may weight the scales in favor of withdrawal, and conversely, the absence of a claim of innocence weights the opposite pan of the scale." Parrilla-Tirado, 22 F.3d at 373; accord United States v. Kobrosky, 711 F.2d 449, 455 (1st Cir.1983). Appellant did not proclaim his innocence in his plea-withdrawal motion. To the contrary, at the disposition hearing he stated; "I know I committed a crime and I have to pay for it." Appellant's explicit admission of his guilt militates strongly against disturbing the ruling below.

4. Voluntariness. In reviewing the merits of a plea-withdrawal motion, an inquiring court must determine whether, in light of the defendant's proffered reason and any other newly disclosed facts, the guilty plea can still be deemed voluntary and intelligent. See United States v. Austin, 948 F.2d 783, 786-87 (1st Cir.1991). Appellant makes no challenge to the sufficiency of the Rule 11 proceeding in this case, and, indeed, the colloquy is a model of thoroughness.

We need go no further. It is apparent that no hint of error tainted the district court's refusal to allow appellant to retract his guilty plea. Consequently, Gonzalez's conviction must stand.

III. The Sentence

Appellant also challenges the district court's reliance on U.S.S.G. Sec. 2D1.1(b)(1) in the course of formulating his sentence. He maintains that his alleged possession of the firearm, and, hence, the applicability of the guideline, was not proven by a fair preponderance of the evidence; and that, in any event, the guideline's applicability had to be demonstrated beyond a reasonable doubt inasmuch as the increase imposed under the guideline is in reality an additional sentence, not a sentencing enhancement. We...