U.S. v. Parrilla-Tirado, PARRILLA-TIRAD

• Decision Date: 09 March 1994
• Docket Number: D,PARRILLA-TIRAD,No. 93-1228,93-1228
• Citation: 22 F.3d 368
• Parties: UNITED STATES of America, Appellee, v. Luis E.efendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 368

22 F.3d 368

UNITED STATES of America, Appellee, v. Luis E. PARRILLA-TIRADO, Defendant, Appellant.

No. 93-1228.

United States Court of Appeals First Circuit.

Heard March 9, 1994.

Decided April 28, 1994.

Lydia Lizarribar-Masini, Hato Rey, PR, for appellant.

Ernesto Hernandez-Milan, Asst. U.S. Atty., with whom Guillermo Gil, U.S. Atty., and Jose A. Quiles-Espinosa, Sr. Litigation Counsel, Hato Rey, PR, were on brief, for appellee.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and CYR, Circuit Judge.

SELYA, Circuit Judge.

Having rethought his guilty plea, defendant-appellant Luis E. Parrilla-Tirado (Parrilla) moved to withdraw it pursuant to Fed.R.Crim.P. 32(d). The district court denied the motion and thereafter imposed sentence. Parrilla appeals. We affirm.

I. PROCEEDINGS BELOW

On April 24, 1991, appellant and a companion, Angel M. Concepcion-Roberto (Concepcion), were apprehended after a high-speed chase. The authorities discovered a firearm on the front passenger seat of their car. ¹ On September 18, 1991, a grand jury returned a two-count indictment. Count 1 charged appellant with violating 18 U.S.C. Sec. 922(g)(1) (1988), a statute that renders it unlawful for a convicted felon, among other things, to "transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm," and also charged Concepcion with assisting the crime's commission in violation of the aiding and abetting statute, 18 U.S.C. Sec. 2(a) (1988). Count 2 reversed the defendants' roles, charging that Concepcion knowingly transported and/or possessed the firearm in violation of section 922(g)(1), and that appellant aided and abetted him.

Appellant was arraigned before a magistrate judge in February of 1992. Notwithstanding the structure of the indictment, the Assistant United States Attorney (AUSA) inexplicably told the magistrate that appellant was being prosecuted exclusively on count 1. Consequently, the magistrate arraigned appellant only on that count. He pled not guilty.

Four months later, appellant, through counsel, negotiated a non-binding plea agreement with the government, see Fed.R.Crim.P. 11(e)(1)(A), under which he agreed to admit his guilt on count 1 and the government agreed to seek dismissal of the charge leveled against him in count 2. In due course, the district court allowed appellant's change of plea. In September 1992, the probation office compiled and delivered the presentence investigation report (PSI Report). In December, after having been afforded an opportunity to scrutinize the PSI Report, appellant moved to withdraw his plea. The district court denied the motion, primarily on the ground that appellant's asserted reasons lacked "force and plausibility." Soon thereafter, the court sentenced appellant on count 1 and dismissed count 2.

Appellant now asserts that no consideration existed within the plea bargain to support the guilty plea, and, therefore, that he should have been allowed to withdraw it. This assertion rests on two theses: (1) that the AUSA indicated at arraignment that count 2 did not involve appellant; and (2) that the two counts were, in all events, multiplicitous, and, consequently, pleading guilty to one count effectively disposed of the other.

II. ANALYSIS

We first set in place the framework under which motions to withdraw pleas must be analyzed, and then turn to the specifics of appellant's asseverational array.

A. The Framework.

Trial judges are the judiciary's infantry: they man the front lines and, therefore, possess special insight into the dynamics of the cases over which they preside. In deference to that insight, we review the district court's decision to grant or deny 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).

Although a motion to withdraw a guilty plea before sentencing is determined under a less stringent standard than a motion made after sentencing, see Fed.R.Crim.P. 32(d) advisory committee's note, a defendant does not have an automatic right to withdraw his plea even at that comparatively early stage. See 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); United States v. Kobrosky, 711 F.2d 449, 454 (1st Cir.1983). Rather, such a motion can be granted before sentencing only upon an affirmative showing of a "fair and just reason." Fed.R.Crim.P. 32(d). The devoir of persuasion as to the existence of such a reason rests with the defendant. See United States v. Gonzalez, 970 F.2d 1095, 1100 (2d Cir.1992); see also Fed.R.Crim.P. 32(d) advisory committee's note.

To gauge whether the asserted ground for withdrawal meets the Rule 32(d) standard, a court must look at the overall situation, most prominently (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 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, ² or otherwise legally suspect. See Doyle, 981 F.2d at 594; Pellerito, 878 F.2d at 1537. And there is a final barrier that must be surmounted: even if a defendant appears at first blush to meet the strictures of this four-part test, the nisi prius court still must evaluate the proposed plea withdrawal in relation to any demonstrable prejudice that will accrue to the government if the defendant is permitted to alter his stance. See Doyle, 981 F.2d at 594; Pellerito, 878 F.2d at 1537.

B. Applying the Framework.

We run the gauntlet of relevant factors, discussing them in sequence.

1. Plausibility of the Asserted Reasons. A defendant bent on withdrawing a guilty plea ordinarily must demonstrate a plausible reason for doing so. See United States v. Tilley, 964 F.2d 66, 72 (1st Cir.1992). In this context, plausibility must rest on more than the defendant's second thoughts about some fact or point of law, see United States v. Nichols, 986 F.2d 1199, 1203 (8th Cir.1993), or about the wisdom of his earlier decision, see United States v. Austin, 948 F.2d 783, 787 (1st Cir.1991). We do not think that either of appellant's proffered reasons can vault this hurdle.

a. Refined to bare essence, appellant's flagship claim is that, because the government did not intend to prosecute him under count 2, he received nothing of value in exchange for his plea to count 1. This argument prescinds from a presentable premise: after all, we frequently have said that plea agreements are contractual in nature. See, e.g., United States v. Atwood, 963 F.2d 476, 479 (1st Cir.1992); United States v. Hogan, 862 F.2d 386, 389 (1st Cir.1988). But this analogy can only be carried so far. Any time a defendant pleads guilty, he receives some built-in benefits, cf., e.g., Corbitt v. New Jersey, 439 U.S. 212, 224 n. 14, 99 S.Ct. 492, 500 n. 14, 58 L.Ed.2d 466 (1978) (discussing leniency usually accorded to defendants who plead guilty as opposed to those who stand trial); U.S.S.G. Sec. 3E1.1 (making available reduction in offense level for acceptance of responsibility), and so long as the government does not make a material misrepresentation, renege on a promise, or breach the plea agreement, see, e.g., Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971), we do not believe that any further consideration is essential to support a guilty plea.

In any event, appellant received the full benefit of his bargain in this case. The indictment made manifest, and the plea agreement confirmed, the grand jury's decision to charge appellant with two crimes, not one. Although appellant had not been arraigned on count 2, that was a matter of mere mechanics. He could have been arraigned, and, ultimately, prosecuted, at virtually any time. ³ Thus, count 2 remained a viable option and the dismissal of it benefitted appellant. Accordingly, appellant's first asserted reason for seeking to withdraw his plea lacks force.

b. As an alternative reason, appellant asserts that the dismissal of count 2 did not amount to valuable consideration because the two counts of the indictment in reality comprised a single charge. This assertion mischaracterizes the components of the indictment and the relationship of the counts inter sese.

We do not dispute the basic proposition on which this assertion is founded. Indeed, it is apodictic that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const., amend. V. To this end, the Double Jeopardy Clause shields a defendant from a second prosecution for the same offense after either an acquittal or a conviction, and also shields a defendant from multiple punishments for the same offense. See Jones v. Thomas, 491 U.S. 376, 380-81, 109 S.Ct. 2522, 2525-26, 105 L.Ed.2d 322 (1989); United States v. Rivera-Martinez, 931 F.2d 148, 152 (1st Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 184, 116 L.Ed.2d 145 (1991). Thus, an indictment may be regarded as repugnant to the Double Jeopardy Clause if it charges a single offense in more than a single count. See United States v. Lilly, 983 F.2d 300, 302 (1st Cir.1992).

The Supreme Court has spoken to this topic in unambiguous terms:

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). If, applying the Blockburger test, the crimes charged are discrete offenses, the defendant may be prosecuted for both offenses even though they...