U.S. v. Muriel

• Decision Date: 03 February 1997
• Docket Number: No. 96-1588,96-1588
• Citation: 111 F.3d 975
• Parties: UNITED STATES of America, Appellee, v. Pedro MURIEL A/K/A Pedro Juan Reyes-Muriel, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 975

111 F.3d 975

UNITED STATES of America, Appellee, v. Pedro MURIEL A/K/A Pedro Juan Reyes-Muriel, Defendant, Appellant.

No. 96-1588.

United States Court of Appeals First Circuit.

Heard Feb. 3, 1997.

Decided May 5, 1997.

Scott A. Lutes, Providence, RI, for appellant.

Margaret E. Curran, Assistant United States Attorney, Providence, RI, with whom Sheldon Whitehouse, United States Attorney, and Zechariah Chafee, Assistant United States Attorney, were on brief for appellee.

Before BOUDIN, Circuit Judge, BOWNES, Senior Circuit Judge, and LYNCH, Circuit Judge.

BOWNES, Senior Circuit Judge.

Defendant-appellant Pedro Muriel appeals the district court's denial of his motion to withdraw his plea of guilty. We affirm.

BACKGROUND

Muriel was arrested during the execution of a warrant to search his girlfriend's apartment. When police entered the apartment on September 14, 1995, they found Muriel standing in a bedroom in his underwear and reaching toward the bed, upon which police found a loaded Smith and Wesson 10-millimeter handgun under a pillow. Muriel claims that he was not reaching for the gun but for his pants.

Police had obtained the warrant to search the two-bedroom apartment rented by Muriel's girlfriend, Ingrid Ostos, on the basis of information provided by a reliable informant previously used by the police. In the bedroom in which they found Muriel and the gun, police also found $1,065 in cash in a nightstand, an ammunition box containing sixteen live .45 caliber rounds, and some personal papers belonging to Muriel and Ostos. In the other bedroom they found a plastic bag holding twenty-three glassine packets containing traces of heroin and a small electronic scale.

Muriel had previously been convicted for other offenses. At the time he was arrested, he was facing a pending violation of a probationary term and a suspended sentence in Rhode Island Providence County Superior Court. In the case at bar, Muriel was indicted on three counts: Count I, violation of 21 U.S.C. § 841(a) (possession of heroin with intent to distribute), Count II, violation of 18 U.S.C. § 924(c)(1) (using or carrying a firearm during and in relation to a drug-trafficking crime), and Count III, violation of 18 U.S.C. § 922(g) by being a "felon-in-possession" (i.e., possession of a firearm after having been convicted of a felony). Muriel entered a plea of not guilty to the charges at his arraignment, and the case was placed on the trial calendar for December 1995. On November 30, 1995, the parties signed a plea agreement pursuant to Federal Rule of Criminal Procedure 11(e)(1)(B), in which Muriel agreed to plead guilty to Count III (the felon-in-possession charge) and the government agreed to drop the other two charges and recommend to the court that Muriel be sentenced at the low end of the applicable guideline range. The government also orally agreed not to oppose a three-level reduction for acceptance of responsibility.

Between the time the plea agreement was accepted and Muriel's sentencing, the Supreme Court decided Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), which altered the prevailing interpretation of the term "use" in 18 U.S.C. § 924(c)(1), one of the offenses with which Muriel had originally been charged, but which was dropped by the government pursuant to the plea agreement. 18 U.S.C. § 924(c)(1) provides, in relevant part, that any person who, "during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, shall ... be sentenced to imprisonment for five years...." In Bailey, the Supreme Court held that, in order to constitute an offense under the "use" prong of § 924(c)(1), there must be evidence of "active employment" of a firearm in the commission of the predicate offense; mere possession of a firearm by a person committing an offense is not sufficient. Id. at ----, 116 S.Ct. at 505.

At the sentencing hearing on February 23, 1996, Muriel moved to vacate his plea of guilty so that he could move to suppress evidence seized during the search of September 14, 1995. The district court denied the motion, and Muriel was subsequently sentenced to thirty-three months in prison, a three-year period of supervised release, and a fine of $7,130.80. He then timely filed this appeal.

Muriel wants to withdraw his plea of guilty to the felon-in-possession charge. He argues that he did not receive the benefit of his bargain in pleading guilty to this charge because the Supreme Court's decision in Bailey, handed down after Muriel had pled guilty pursuant to the agreement, would nullify the 18 U.S.C. § 924(c)(1) charge, Count II of the indictment, which was dropped by the government pursuant to the plea agreement. Muriel argues further that since the sentencing court was not convinced by a fair preponderance of the evidence on Count I, Count III is the only viable charge left against him. Appellant's Br. at 8.

Muriel does not request a trial; indeed, he does not profess his innocence, but wishes to file a motion to suppress evidence in order to challenge the affidavit upon which the search warrant which led to the discovery of the gun was based. Muriel thus contends that he should be permitted to withdraw his guilty plea in order to avail himself of another strategy in his defense.

ANALYSIS

Muriel makes two arguments on appeal. First, he contends that the district court abused its discretion in denying his motion to withdraw his plea because he has asserted a fair and just reason for doing so. Second, Muriel contends that the district court committed clear error in sentencing him by denying him a downward adjustment for acceptance of responsibility.

I.

Muriel moved to vacate his guilty plea before he was sentenced. Federal Rule of Criminal Procedure 32(e), which governs plea withdrawals, states, in pertinent part: "If a motion to withdraw a plea of guilty or nolo contendere is made before sentence is imposed, the court may permit the plea to be withdrawn if the defendant shows any fair and just reason." A defendant has no absolute right to withdraw a guilty plea. See United States v. Isom, 85 F.3d 831, 834 (1st Cir.1996); United States v. Ribas-Dominicci, 50 F.3d 76, 78 (1st Cir.1995). Moreover, a district court's decision granting or denying a motion to withdraw a guilty plea may be reversed only upon a demonstrable abuse of discretion. See United States v. Sanchez-Barreto, 93 F.3d 17, 23 (1st Cir.1996), cert. denied sub nom. Arroyo-Reyes v. United States, --- U.S. ----, 117 S.Ct. 711, 136 L.Ed.2d 631 (1997); United States v. Parrilla-Tirado, 22 F.3d 368, 371 (1st Cir.1994).

We have employed four criteria in determining whether a defendant has asserted a "fair and just" reason for withdrawing a guilty plea:

(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, when viewed in the light of emergent circumstances, the defendant's plea appropriately may be characterized as involuntary, in derogation of the requirements imposed by Fed.R.Crim.P. 11, or otherwise legally suspect.

Sanchez-Barreto, 93 F.3d at 23. The fourth consideration, which hinges on whether the plea was knowing, voluntary, and intelligent, is most significant. Ribas-Dominicci, 50 F.3d at 78.

If, under this analysis, the defendant successfully meets his burden of demonstrating a fair and just reason for withdrawing his plea, the court must inquire whether the government will suffer any demonstrable prejudice from the withdrawal of the plea. Parrilla-Tirado, 22 F.3d at 371. Because we find that Muriel does not meet his burden under this analysis, however, we need not address the question of prejudice. See id. at 373 n. 5; United States v. Doyle, 981 F.2d 591, 596 n. 6 (1st Cir.1992).

(1) Plausibility

Muriel must demonstrate a plausible reason for withdrawing his guilty plea. See Parrilla-Tirado, 22 F.3d at 371. Plausibility cannot just rest on Muriel's second thoughts " 'about some fact or a point of law, or about the wisdom of his earlier decision.' " Isom, 85 F.3d at 837 (quoting Parrilla-Tirado, 22 F.3d at 371). Our review of the record supports the district court's assessment that Muriel's change of heart, while "understandable," was prompted by second thoughts about the wisdom of his decision to enter the plea agreement rather than file a motion to suppress evidence of the gun. Memorandum and Order of March 19, 1996 at 4. Muriel advances the following as plausible reasons for withdrawing his plea: (1) his motion to withdraw was not the product of second thoughts but was prompted by the Bailey decision; (2) an alleged defect in the warrant makes his plea suspect; and (3) the plea bargain ceased to be to his benefit. We find none of these to be plausible reasons.

By his own admission Muriel had second thoughts all along about his strategic choice to plea bargain because he had doubts about the sufficiency of the evidence upon which the search warrant was based. But Muriel made a tactical decision to forgo the warrant challenge because, at the time, he thought it was in his best interests to secure dismissal of the most serious charge, 18 U.S.C § 924(c)(1) (the "Bailey charge"), which carries a five-year mandatory sentence. Appellant's Memorandum in Support of Motion to Vacate Plea of Guilty at 2. Nearly three months later, when Muriel concluded that circumstances had changed such that a potential motion to suppress seemed to be a better strategy than his plea bargain, he decided that withdrawal of his plea was in order. But, as we have already stated, second thoughts do not constitute a plausible reason for withdrawal.

Muriel also argues that the information contained in the affidavit in support of the search warrant was insufficient to establish probable cause, and that this is a plausible reason for withdrawing his plea....