U.S. v. Marrero-Rivera

• Decision Date: 04 June 1997
• Docket Number: MARRERO-RIVER,No. 97-1051,D,97-1051
• Citation: 124 F.3d 342
• Parties: UNITED STATES of America, Appellee, v. Jose A.efendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 342

124 F.3d 342

UNITED STATES of America, Appellee, v. Jose A. MARRERO-RIVERA, Defendant, Appellant.

No. 97-1051.

United States Court of Appeals First Circuit.

Heard June 4, 1997.

Decided Sept. 8, 1997.

Linda Backiel, for defendant, appellant.

W. Stephen Muldrow, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, Jose A. Quiles-Espinosa, San Juan, PR, Senior Litigation Counsel, Edwin O. Vazquez, Hato Rey, PR, Deputy Chief, Criminal Division, and Nelson Perez-Sosa, Assistant United States Attorney, were on brief, for appellee.

Before SELYA, Circuit Judge, CYR, Senior Circuit Judge, and KEETON, ^* District Judge.

CYR, Senior Circuit Judge.

Appellant Jose A. Marrero Rivera ("Marrero") contends that the district court erred in denying his motion to withdraw his guilty plea, see Fed.R.Crim.P. 32(e), and miscalculated the quantity of cocaine for which he was held criminally responsible at sentencing. We affirm the district court judgment.

I BACKGROUND

Appellant Marrero, owner and operator of a small "cafetera," employed one Jess Flette Hidalgo ("Flette"). ¹ After unwittingly negotiating with undercover DEA agents and a confidential informant, Flette agreed to supply them with ten kilograms of cocaine, then transmitted a message to Marrero's beeper stating that "ten jet skis" should be prepared. Flette later emerged from the Marrero business establishment carrying a box containing one kilogram of cocaine. Shortly thereafter, Marrero was arrested in possession of the beeper to which Flette had transmitted the "ten jet skis" message. ²

Marrero initially entered a "not guilty" plea to the charge of conspiring with Flette to possess, with intent to distribute, ten kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 846. Thereafter, Marrero's lead counsel, Jose Aguayo, Esquire, advised that a plea agreement would be in Marrero's best interests and tried to persuade him to plead guilty. Later, on July 19, 1996, confronted with a 5:00 p.m. deadline for informing the government whether he would change his plea, and after consulting with a second attorney, Marrero ultimately decided to plead guilty. ³

A. The Rule 11 Hearing

On July 22, 1996, Marrero pled guilty pursuant to a plea agreement and the district court conducted a comprehensive Rule 11 hearing. See Fed.R.Crim.P. 11. The court inquired, inter alia, into Marrero's educational and employment background. Marrero stated that he had read, signed, and understood the plea agreement, after discussing it with counsel. He further acknowledged that he was satisfied with Attorney Aguayo's representation, that he understood the indictment discussed with him by counsel, ⁴ and that he understood his legal rights as explained by the court.

The district court then went through the indictment in abbreviated fashion. ⁵ Marrero The prosecutor then described the factual predicate for the guilty plea, including the meeting between Flette and the undercover agents, at which it was "agreed that Jesus Flette and persons working with him would provide 10 kilograms of cocaine to the undercover DEA agents." The prosecutor stated that "[a] beeper message was sent to a pager company, indicating that the ten jet skis should be prepared because the buyers were ready." ⁶ Further, the prosecutor described how Flette had entered the Marrero cafeteria and left with the box of cocaine, and how, when arrested, Marrero was carrying the beeper bearing the "ten jet skis" message from Flette. Finally, the prosecutor represented that Flette would establish that Marrero had "willingly and knowingly conspired with Jesus Flette and others to distribute 10 kilograms of cocaine and in fact did distribute the one kilogram of cocaine." At this point, Marrero agreed with the government's version of the relevant events as described by the prosecutor. The district court accepted the guilty plea after determining that it was voluntary, knowing, and intelligent.

                acknowledged that he understood the potential penalties attending the conspiracy charge and explicitly agreed that he was criminally responsible for conspiring with Flette to distribute ten kilograms of cocaine.   He assured the court that he had not been coerced or intimidated into pleading guilty;  that he had read and signed the "Government's Version of the Facts" appended to the plea agreement, and, after discussing it with Attorney Aguayo, acknowledged that the actual events were as recited by the government
                

B. The Rule 32(e) Hearing

Shortly after the presentence-investigation interview, and some three months after the Rule 11 hearing, Marrero moved to withdraw the guilty plea, see Fed.R.Crim.P. 32(e), claiming that it was: (1) involuntary, in that he had succumbed to a sense of helplessness and futility when confronted with Attorney Aguayo's advice that the benefits of the plea agreement outweighed the risks of conviction at trial; (2) not "intelligently" made, as it had been premised on several incorrect assumptions, including that he was guilty of conspiracy simply because he had received and retained the box for his employee, Flette, even though he had no contemporaneous knowledge as to what was in the box; (3) not "knowingly" made, in that he had delegated to counsel the responsibility for reviewing and interpreting the plea agreement, and thought that once he had agreed to change his plea he would have to sign the plea agreement and provide affirmative responses during the change-of-plea colloquy; (4) not adequately supported by the Government's Version of the Facts, or the prosecutor's summary during the Rule 11 hearing, because there was no demonstration that Marrero had known that the box he had held in his hands contained cocaine; and (5), predicated on an inadequate Rule 11 inquiry, in that the district court neither asked, nor determined, whether Marrero had understood the mens rea element for the crime of conspiracy.

At the ensuing Rule 32(e) hearing, Attorney Aguayo testified that he had explained the plea agreement to Marrero, but did not coerce him to sign it. Upon inquiry by the district court, as to whether Aguayo had "explain[ed] the nature of the charges" and "the issue about ... the requirement the government had to prove his knowing participation in the conspiracy," Aguayo replied that he had done so and that he had "explained ... very clearly that ... in order for the Court to accept a plea of guilty there had to be a basis in fact for it." Marrero responded by introducing notes, used by Aguayo during their change-of-plea conference, describing Marrero's admission as follows:

"What I did ... A person came to my business and left a package for Jesus Flette. The package contained cocaine."

The district court found a sufficient factual predicate for the guilty plea, citing in particular the Government's Version of the Facts, with which Marrero had agreed and which explicitly noted that the "ten jet skis" message from Flette to Marrero meant ten kilograms of cocaine. See supra note 6. The court construed this to mean that Marrero thereby acknowledged not only the true purport of the beeper message, but admitted that he had so understood the message at the time he received it. Further, the court considered its earlier Rule 11 inquiry adequate to support a reliable determination that Marrero had understood the conspiracy indictment and the plea agreement, and expressly had agreed that he was criminally responsible for conspiring to sell ten kilograms of cocaine. Finally, the district court found nothing, either in the plea agreement or the Rule 11 hearing transcript, which warranted a finding that Marrero had not understood what he was admitting to at the Rule 11 hearing. Accordingly, the district court denied the motion to withdraw the guilty plea.

II DISCUSSION

A. Plea Withdrawal Before Sentencing

1. Legal Framework

We begin with bedrock principles. There is no absolute right to withdraw a guilty plea prior to sentencing. See United States v. Pellerito, 878 F.2d 1535, 1537 (1st Cir.1989), cert. denied, 502 U.S. 862, 112 S.Ct. 184, 116 L.Ed.2d 145 (1991). Rather, a defendant may be allowed to withdraw a guilty plea before sentencing only for a "fair and just reason." See United States v. Cotal-Crespo, 47 F.3d 1, 3 (1st Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 94, 133 L.Ed.2d 49 (1995); see also Fed.R.Crim.P. 32(e) ("the court may permit the plea to be withdrawn if the defendant shows any fair and just reason"). The burden of persuasion rests with the defendant. United States v. Isom, 85 F.3d 831, 834 (1st Cir.1996); United States v. Parrilla-Tirado, 22 F.3d 368, 371 (1st Cir.1994).

The district court must consider several factors in determining whether the burden of persuasion has been met by the defendant, the most significant being whether the plea was voluntary, intelligent and knowing, within the meaning of Rule 11. Cotal-Crespo, 47 F.3d at 3; United States v. Allard, 926 F.2d 1237, 1243 (1st Cir.1991). Other relevant considerations, see pp. 352-54, include: (1) the plausibility and weight of the proffered reason; (2) the timing of the request; (3) whether the defendant asserted legal innocence; and (4) whether the parties had reached, or breached, a plea agreement. Isom, 85 F.3d at 834; Cotal-Crespo, 47 F.3d at 4. Finally, assuming the defendant carries the burden of persuasion on the aforementioned considerations, the district court must weigh in the balance any demonstrable prejudice to the government were the defendant allowed to withdraw the plea. Isom, 85 F.3d at 835; Pellerito, 878 F.2d at 1537.

At the outset, it is particularly important to note the difficult appellate terrain which the present challenge to the district court's Rule 32(e) determination must traverse; that is, the factfinding underlying the plea withdrawal ruling may not be set aside for anything less than "clear error." See, e.g., Pellerito, 878 F.2d at 1538 ("Confronted with an...