USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________
No. 95-1297
UNITED STATES OF AMERICA,

Appellee,

v.

JUAN MANUEL SANCHEZ-BARRETO,

Defendant, Appellant.

____________________
No. 95-1299
UNITED STATES OF AMERICA,

Appellee,

v.

JACKSON QUINTERO-FIGUEROA,

Defendant, Appellant.

____________________
No. 95-1300
UNITED STATES OF AMERICA,

Appellee,

v.

JORGE L. PEREZ-GARCIA,
a/k/a PITO CABALLO,

Defendant, Appellant.

____________________
No. 95-1303
UNITED STATES OF AMERICA,

Appellee,

v.

LUIS GARCIA-CRUZ,

Defendant, Appellant.

____________________

No. 95-1306

UNITED STATES OF AMERICA,

Appellee,

v.

ELIGIO LOPEZ-AYALA,

Defendant, Appellant.

____________________
No. 95-1404
UNITED STATES OF AMERICA,

Appellee,

v.

JUAN CARLOS ARROYO-REYES,

Defendant, Appellant.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jos

Antonio Fust , U.S. District Judge]

___________________

____________________

Before

Selya and Cyr, Circuit Judges,

______________

and Gertner,* District Judge.

______________

____________________

____________________

*Of the District of Massachusetts, sitting by designation.

Jos A. Pagan Nieves, with whom Jos A. Pagan Nieves Law Offic
____________________
______________________________
was on brief for appellant Sanchez Barreto.
Carmen R. De J sus for appellant Quintero Figueroa.
__________________
Rafael F. Castro Lang for appellant Perez Garcia.
_____________________
Lydia Lizarribar-Masini on brief for appellant Garcia Cruz.
_______________________
Eduardo Caballero Reyes for appellant Lopez Ayala.
_______________________
Victor P. Miranda Corrada for appellant Arroyo Reyes.
_________________________

Miguel A. Pereira, Assistant United States Attorney, with whom

_________________

Guillermo Gil, United States Attorney, and Jos A. Quiles-Espinosa,

_____________
_______________________
Senior Litigation Counsel, were on brief for appellee.

____________________

August 21, 1996

____________________

CYR,
CYR,

Circuit Judge.
Circuit Judge
_____________

Appellants

Juan

Carlos Arroyo-

Reyes ("Arroyo"), Luis Garcia-Cruz ("Garcia"), Eligio Lopez-Ayala

("Lopez"),

Jorge

Perez-Garcia

Figueroa

("Quintero"),

contend,

among other

and

("Perez"),

Juan

things, that

denying their requests to withdraw

R. Crim. P. 32(e).

by

Perez and

Jackson

Sanchez-Barreto

Quintero-

("Sanchez")

the district court

erred in

their guilty pleas.

See Fed.
___

We remand the Sixth Amendment claim presented

affirm the

district court

remaining appellants.

I
I

BACKGROUND

judgments against

the

BACKGROUND
__________

On March 9,

1994, a federal grand jury

in Puerto Rico

returned a five-count indictment charging appellants with,

alia,
____

conspiracy to

cocaine

base,

five kilograms

heroin, in violation

with

using

offense,

in

distribute

or

violation of

alleged

Puerto Rico, and used firearms

of

kilogram of

846 (1994), and

connection

U.S.C.

with

drug

924(c)(1) (1994).

that appellants

twenty-six member gang that operated

fifty grams

and one

841(a)(1),

firearms in

18

than

of cocaine,

of 21 U.S.C.

carrying

superseding indictment

not less

inter
_____

belonged

to

a "drug point" in Toa Baja,

to defend against rival gangs and

discourage honest citizens from informing the police.

Appellants initially

pled not

guilty to

the charges.

Just

before

appellants

firearms

trial,

however,

entered guilty

counts

and

the

pleas

with

the

advice

to

the

drug

government

agreed

of

counsel,

conspiracy

to

dismiss

and

the

remaining counts.

After the district court accepted their guilty

pleas, and before

sentencing, see Appendix A,

___

to withdraw

their pleas.

See
___

Fed. R.

appellants sought

Crim. P.

32(e) ("If

motion to withdraw a plea of guilty . . . is made before sentence

is imposed, the

court may permit the plea to be withdrawn if the

defendant shows any fair and

denied

just reason.").

The district court

their motions and imposed sentences consistent with their

respective plea agreements.

II
II

DISCUSSION
DISCUSSION
__________

A.
A.

The Perez Appeal

The Perez Appeal
________________

Perez claims that he was denied effective assistance of

counsel

at the

guilty plea.

hearing on

his pro
___

se motion
__

See U.S. Const. amend. VI.

___

to withdraw

his

The government responds

that Perez (1) did not ask the

(2) has

not

shown

that

court to appoint new counsel, and

appointed

Esquire, labored under an actual

meaning

counsel,

Jos

R.

Aguayo,

conflict of interest within the

of United States v. Soldevila-Lopez,

______________
_______________

17 F.3d

480 (1st

Cir. 1994).

1.
1.

Waiver
Waiver
______

The

Sixth Amendment

right to effective

assistance of

counsel inheres at all "critical stages" of a criminal proceeding

unless competently waived.

47 (1st

Cir. 1991).

United States v. Mateo, 950 F.2d 44,

______________
_____

A plea

withdrawal hearing is

stage" in the criminal proceeding.

F.2d 1066,

1069 (3d

a "critical

United States v. Crowley, 529

_____________
_______

Cir.), cert. denied,

_____ ______

425 U.S.

995 (1976).

The right

to counsel

defendant;

lawyer's

is not

contingent upon a

rather, "we presume

services at every

Michigan v.
________

Jackson, 475
_______

court appointed

Jos
_

that the defendant

critical stage of

U.S. 625, 633

events, Perez requested counsel

request by

& n.6

requests the

the prosecution."

(1986).

at the outset, and the

R. Aguayo, Esquire.

the

In all

district

Thus, contrary to

in

the

record

remotely

voluntarily waived his

771-72 (1st

representation

Ct.

indicates

that

Perez

Sixth Amendment right

plea withdrawal hearing.

F.3d 754,

the government's suggestion, nothing

Compare
_______

Cir. 1995)

knowingly

and

to counsel at

the

United States v. Saccoccia, 58

_____________
_________

(defendant repeatedly

by conflict-free counsel),

cert. denied,
_____ ______

waived

116 S.

1322 (1996); see also United States v. Betancourt-Arretuche,

___ ____ _____________
____________________

933 F.2d

89, 92 (1st

Cir.) (discussing waiver

denied, 502 U.S. 959 (1991).

______

whether

failed

hearing.

Perez

has

to afford

elements), cert.
_____

Finding no waiver, we next consider

demonstrated

that

effective assistance

court-appointed

at

the plea

counsel

withdrawal

2.
2.

Conflict of Interest
Conflict of Interest
____________________

The government contends that Perez must demonstrate "an

actual

conflict of

performance."

335, 348 (1980)).

required to

have pursued a

his lawyer's

Soldevila-Lopez, 17 F.3d at 486 (quoting Cuyler v.

_______________
______

Sullivan, 446 U.S.

________

Perez was

interest adversely affect[ing]

show that

Thus,

the government says

court-appointed counsel

plausible alternative tactic or strategy

not for an inherent conflict

could

were it

of interest or other loyalties that

caused him

not to do so.

15, 17 (1st Cir. 1987).

Id.;
___

Guaraldi v. Cunningham, 819 F.2d

________
__________

We noted

in Soldevila-Lopez that "[c]ourts have recog_______________

nized actual

conflicts of interest

client

pursuit of

when

between an attorney

client's

evidence of an attorney's malpractice."

interests

would

and his

lead

to

Soldevila-Lopez, 17 F.3d

_______________

at 486 (citing

United States v. Ellison, 798

_____________
_______

F.2d 1102, 1106-08

cert. denied, 479 U.S. 1038

_____ ______

(1987), and Mathis

______

(7th Cir. 1986),

v. Hood,
____

937 F.2d 790, 795 (2d Cir. 1991)).

malpractice or

ethics complaint

The absence of any

in Soldevila-Lopez
_______________

nonetheless

led us to conclude that a conflict-of-interest finding should not

be

based solely

benefited

had

on

an

defense

inference that

counsel

incompetency claim prior to trial.

the

raised

client might

the

client's

have

mental

Id. at 486-87.
___

The government's contention that Perez' Sixth Amendment

claim

is

untenable,

indistinguishable

since

Perez

from

plainly

that

in

alleged

Soldevila-Lopez
_______________

facts

amounting

is

to

malpractice, if

withdraw his

into

found to be true.

guilty plea alleged

pleading guilty

hearing in

trial.

order to

Perez

the

Rule

"hide [Aguayo's]

to "act

is, the Perez motion to

that Aguayo had

earlier

further alleged

"minimum" efforts

only interested

at

That

that

11

lack of

change-of-plea

preparation" for

Aguayo had

as his counsel

in a fee, but see infra

___ ___ _____

pressured him

not made

or defender"

even

and was

note 1, thus leaving no

doubt that Perez wanted replacement counsel.

______

In United States
_____________

v. Ellison, 798
_______

F.2d 1102 (7th

Cir.

1986), cert. denied, 479 U.S. 1038 (1987), the district court was
_____ ______

presented

with

virtually identical

situation

in

which the

defendant had

alleging

filed a pro se
___ __

motion to withdraw

a guilty plea,

that court-appointed counsel had persuaded him to forgo

trial (despite Ellison's assertions of innocence) because counsel

"did not

whom he

district

want to

would

court

make waves with

be working

neither

in the

the federal

future." Id.
___

appointed new

counsel

prosecutors with

at

nor

1106.

The

obtained a

competent waiver, but instead rejected the plea-withdrawal motion

because defense counsel denied Ellison's accusations at the plea-

withdrawal hearing.

The Seventh Circuit held that defense counsel's "repre-

sentation" at the plea-withdrawal hearing did not meet

the Sixth

Amendment minima:

First,

counsel was

not

able to

client's best interests free

ence of

his concern about

crimination. . .
defendant's
would be

. [I]f

motion

contention

by

allegations

were

possible self-inthe allegations

to

his

that

not true

would

in

actions

malpractice.

counsel

contradict his client.

his client,

from the influ-

were true,

tantamount

pursue his

Any

defendant's
(and did)

In testifying against

counsel acted as

both counselor

and witness for the prosecution.

These roles

are inherently inconsistent.

Id. at 1107 (citation omitted); see also Lopez v. Scully, 58 F.3d

___
___ ____ _____
______

38, 41 (2d Cir. 1995) (holding that a pro se motion to withdraw a

___ __

guilty plea based on alleged

conflict of interest).

conclusion that

attorney coercion created an actual

The identical

Aguayo may

have been

logic fully warrants

laboring under

the

an actual

conflict of interest at the hearing on the pro se plea-withdrawal

___ __

motion, which alleged

that Aguayo had coerced Perez' guilty plea

in order to conceal his unpreparedness for

trial.

Nevertheless,

we

think the

further

appropriate course in

factfinding on

against Aguayo.

F.3d at

486, a

conflict

proceeding

of

the

merits

this case is

of

the

As we recognized

claim that

interest

amounts

to

normally appropriate

United States v.
______________

at

an

critical

disabled

stage

ineffective

for consideration

Natanel, 938
_______

in

assistance

on direct

F.2d 302,

cert. denied, 502 U.S. 1079 (1992).

_____ ______

allegations

in Soldevila-Lopez, 17
_______________

counsel was

Perez

to remand for

309 (1st

by an

the

actual

criminal

claim

not

appeal.

See
___

Cir. 1991),

Moreover, the district court

record is not "sufficiently developed to allow reasoned consider-

ation" of the merits of the pro se plea-withdrawal motion itself,

___ __

Soldevila-Lopez, 17
_______________

F.3d at

486 (quoting

Natanel, 938 F.2d

_______

at

309),

since

against

its

Aguayo

underlying

were

never

conflict-of-interest

subjected

to

allegations

factfinding

in

the

district court.

The

instance,

district court failed

whether Perez had

to determine, in

made "an intelligent

the first

and competent

waiver" of his Sixth Amendment right to counsel before proceeding

to hear the plea-withdrawal motion with Perez acting pro se.

___ __

Mateo, 950
_____

F.2d at 47.

Instead, it opened

See
___

the plea-withdrawal

hearing with questions to Aguayo about the pro se plea-withdrawal

___ __

motion.

Whereupon

Aguayo extolled

agreement, stated that

11 plea colloquy

in

law for

the

benefits of

there were no errors in

se plea-withdrawal
__

plea

the earlier Rule

conducted by the district court,

Perez' pro
___

the

nor any basis

motion, and,

in all

events, that

Perez was better

off with the plea

bargain, given

10

the

unlikelihood the

Aguayo stated:

he could

prevail at

trial.

"I really don't understand why

withdraw [the plea agreement]."

Summing up,

[Perez] wants to

Compare United States v. Daniel,

_______ _____________
______

962 F.2d 100, 102 (1st Cir. 1992) (attorney argued vigorously and

successfully

Whatever

for

client

after

raising

potential

conflict).

their independent merit,1 the views expressed by Aguayo

at the plea-withdrawal hearing directly contradicted the position

advocated

plea.

by Perez in

Thus, the

left to

counsel.

But
___

fend for

see Crowley,
___ _______

is "critical

quently,

withdrawal

Perez

to withdraw his guilty

Rule 32(e) hearing record leaves

Perez was

hearing

the pro se motion

___ __

was

hearing.

himself, without
_______

529 F.2d

stage" in

denied effective

See
___

representation by

at 1069

criminal

no doubt that

(plea withdrawal

proceeding).

assistance

Soldevila-Lopez,
_______________

17

at

F.3d

Conse-

the plea-

at

486;

Ellison, 798 F.2d at 1106-08.

_______

question

In many instances

a trial court may have

whether counsel's

personal

no reason to

or professional

interests

might preclude "effective assistance" to the defendant.

circumstances,

In

such

fair and efficient criminal justice may depend in

significant part upon

the ethical obligation of

defense counsel

to inform the court whenever a conflict of interest arises in the

____________________

1The

record discloses cause

client (and for the district

conviction

Perez

imprisonment,

would

rather

face
than

for Aguayo's concerns

for his

court's concern as well) since upon

a
the

ninety-year

seventeen-year

negotiated for him under the plea agreement.

11

minimum
_______

term

maximum
_______

of

term

course of the

proceedings.

other hand,

when the trial

that

is a

there

colorable

appropriate inquiry to

rights.

Guaraldi, 819
________

F.2d at 18.2

On the

court learns

or has reason

to know

conflict,

safeguard the

it

should

initiate

accused's Sixth

an

Amendment

Soldevila-Lopez, 17 F.3d at 487; United States v. Allen,

_______________
_____________
_____

789 F.2d 90,

92 (1st Cir.) ("Where the

to appointed

counsel, the

accused voices objection

trial court should

reasons

for the dissatisfaction."),

(1986);

see generally

2 Wayne

R.

inquire into

cert. denied, 479

_____ ______

LaFave &

Jerold H.

the

U.S. 846

Israel,

___ _________

Criminal Procedure
__________________

11.4(b), at pp. 36-37 (1984) (replacement of

appointed counsel); cf. Fed. R. Crim. P. 44(c) (mandating inquiry

___

into joint representation).

Given the

allegations in

of the

malpractice

the pro se plea-withdrawal motion filed by Perez,

___ __

and Aguayo's sua

___

at the

clarity and specificity

outset of

sponte attempt to terminate

______

the plea-withdrawal

course for the district court

his representation

hearing, the

appropriate

was to resolve the factual dispute

____________________

2Were
Aguayo,

there

a matter

D.P.R. Loc.

any

substance to

yet to

be

R. 211.4 would

Perez'

addressed by

allegations against
the district

court,

appear to have required

that Aguayo

observe Model Rule of Professional Conduct 1.7(b),

____________________________________

prohibiting

represent-ation

where

personal

or

professional

interests

materially

restrict counsel's freedom of

client's interests.
to terminate
the

See also
___ ____

representation).

id. Rule 1.16(a)(1) (imposing duty

___
In

all events, at the

plea-withdrawal hearing, Aguayo

intended to

action in support of a

withdraw as counsel.

outset of

promptly indicated

that he

The district court nonetheless

proceeded with the hearing, took no action on Aguayo's withdrawal

suggestion and, for all intents and
Aguayo

purposes, continued to treat

as Perez' counsel, without first determining the disputed

facts underlying the Perez allegations against Aguayo.

factual linchpin to

the ineffective assistance claim

Aguayo in fact labored under a conflict of interest

be subjected to factfinding.

12

Thus, the

whether

has yet to

in keeping

request.

with the

adversarial nature

of the

plea-withdrawal

Moreover, absent a proper waiver of the Sixth Amendment

right to counsel, and a knowing and voluntary election to proceed

pro se on the Rule 32(e)

___ __

United States
_____________

1987),

ate

motion, see Ellison, 798 F.2d

___ _______

v. Wadsworth,
_________

830 F.2d

1500,

1108-09;

1510-11 (9th

Cir.

appointment of replacement counsel was the only appropri-

course.

failure to

As the hearing transcript plainly demonstrates, the

conduct the required

in

factual inquiry resulted

unconstitutional

breakdown

the

adversarial process,

compels a remand

for further proceedings.

See
___

in an

which

Cuyler, 446 U.S.

______

at 349-50 (rejecting harmless error analysis).

On remand, the district court shall appoint replacement

counsel for

Perez at

a plea-withdrawal

hearing reconvened

for

factfinding

purposes

allegations

against

determination

to

Aguayo,

whether

involuntary by

determine

the

a violation

counsel at all critical

Lockhart, 474 U.S.

________

so

the

as

guilty

merits

of

Perez'

to

enable

its

ultimate

plea

itself

was

rendered

Sixth Amendment

right to

of Perez'

stages of the proceeding.

52, 56 (1985) (ineffective

See Hill
___ ____

v.

assistance during

bargaining may render plea involuntary).

B.
B.

The Plea Withdrawal Motions

The Plea Withdrawal Motions
___________________________
by the Remaining Defendants
by the Remaining Defendants
___________________________

We

defendants.

now turn

to the claims

advanced by

the remaining

Under the well-established framework for

plea-withdrawal motions,

the district

court

evaluating

considers all

the

circumstances, with particular attentionto four prominentfactors:

(1) the plausibility of the reasons prompting

13

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

involuntary,

in

derogation

requirements imposed

characterized
of

as
the

by Fed. R. Crim. P. 11,

or otherwise legally suspect.

United States
______________

v. Parrilla-Tirado,
_______________

1994) (footnote omitted).

persuasion on these

decline

to allow the plea

Cir. 1992).

we

will

not

granting or

denying a

(1st Cir.

If the defendant carries the burden of

to be withdrawn

court may still

if it would unfairly

United States v. Doyle, 981 F.2d 591,

______________
_____

Moreover, absent a demonstrable

discretion,

before sentencing.

368, 371

four criteria, the district

prejudice the government.

594 (1st

22 F.3d

reverse

district

request to withdraw

United States v.
______________

court

a guilty

abuse of

decision

plea filed

Martinez-Molina, 64
_______________

F.3d

719, 732 (1st Cir. 1995).

1.
1.

Voluntariness
Voluntariness
_____________

The most prominent single factor

whether these pleas

were knowing, voluntary,

and intelligent, within the

Criminal Rule 11(d), United States

_____________

(1st Cir.), cert.

_____

these

appellants.

v. Cotal-Crespo, 47 F.3d 1, 3
____________

denied, 116 S. Ct. 94 (1995)

______

We

have

meaning of

found no

abuse

does not favor

of discretion

in

disallowing plea withdrawal motions where Rule 11 safeguards were

scrupulously followed by the

district court.

States
______

783, 787

v. Austin,
______

appellants

Rule 11 plea

948 F.2d

See, e.g.,
___ ____

(1st Cir.

1991).

United
______

These

uniformly have failed to identify any defect in their

colloquies.

Rather, appellants

14

contend that their

pleas

were

rendered

recommendations

government on

involuntary

to accept

the

the morning trial

plea

by

their

bargains

attorneys'

offered

by

was scheduled to begin.

the

Their

contentions are meritless.

Special Rule

11

requirements have

been

designed

to

minimize the significant risk that "involuntary" guilty pleas may

be tendered in response to "package plea bargain" offers from the

government.

See Martinez-Molina, 64
___ _______________

hearing transcripts

in this

F.3d 732-34.

case disclose

The

that each

Rule 11

appellant

repeatedly informed the

not

district court that his

been coerced by anyone, thereby substantiating the threshold

______

voluntariness determination

for

Rule 11(d)

States v. Martinez-Martinez, 69 F.3d

______
_________________

(inquiring whether

11),

guilty plea had

cert.
_____

Molina,
______

coercion

anyone has
______

denied, 116
______

64 F.3d at

S. Ct.

purposes.

1215, 1223 (1st Cir.

coerced the

plea satisfies

1343 (1996);

Consequently,

without

or conflict-free defense counsel's enthusiasm for

tion.

bargain, are insufficient to establish

Austin,
______

948

F.2d

at 786-87

Rule

to prosecutorial
_____________

more,

general allegations of coercion, based on the imminence of

plea

1995)

compare Martinez_______ _________

733-34 (inquiry restricted

insufficient).

United
______

their

trial

the negotiated

an abuse of discre-

(noting

that

court

has

discretion to refuse withdrawal of "eleventh hour" plea).

2.
2.

The

Timing
Timing
______

delays in filing their Rule 32(e) motions likewise

handicap appellants' challenges.

filed prior

See Appendix A.
___

Even a request

to sentencing, United States v. Isom, 85

______________
____

15

F.3d 831,

838-39 (1st Cir. 1996), must

a defendant

meet the challenge that "the longer

waits before moving

to withdraw his plea,

the more

potency his motion must have in order to gain favorable consider-

ation."

Parrilla-Tirado,
_______________

the other hand,

22 F.3d at 373.

These appellants, on

offer neither plausible grounds

for withdrawing

their pleas, nor explanations for their extended delays in filing

Rule 32(e) motions.

defendant's

See Doyle, 981 F.2d at 595 ("the timing of a

___ _____

attempted

plea

motive"); United States v.

______________

withdrawal is

Ramos, 810 F.2d

_____

highly

probative of

308, 312

(1st Cir.

1987) (contemplating change of heart within days of plea).

______ ____

Thus,

the district

plea-

court soundly

concluded that

their belated

withdrawal motions substantially weakened appellants' claims that

their guilty pleas resulted from confusion or coercion.

3.
3.

Claims of Innocence
Claims of Innocence
___________________

Their belated claims of innocence likewise fail to tilt

the

balance.

determine

The

whether

Parrilla-Tirado,
_______________

their guilt

district

claims

22 F.3d

during the

judge

of

is

better

innocence

at 371.

are

positioned

credible.

and implausible

admitted

11 proceedings

conducted

flawless Rule

assertions of

See
___

Defendants freely

below, and the subsequent Rule 32(e) hearing record

weak

to

innocence.3

evinces only

The

district

____________________

3See Ramos, 810 F.2d at 313 (rejecting "self-serving, unsup___ _____

ported claim
after

the

of innocence raised
Rule 11

firearms, but denied

hearing").

judicially for the

Here, Sanchez

the drug charge, whereas

quantity

of cocaine,

but

first time

admitted

using

Quintero admitted

selling

a small

denied the

firearm

charge.

Lopez sought to withdraw his plea to the firearm charge.

Garcia asserted no
photograph,

in

claim of innocence.
which

several

Confronted

codefendants

with a group

were

depicted

brandishing firearms, Arroyo claimed the guns were toys.

16

court

need not

credit bare

protestations

of legal

innocence.

Isom, 85 F.3d at 839.4

____

Once again we emphasize:

withdraw a guilty

there is no absolute right to

plea, Austin, 948 F.2d at 786; the decision is

______

left

to the

Tirado,
______

22

sound discretion

F.3d at

special insight

totality of

371

into the

their pleas.

was

court.

district

dynamics of their

presented no

No more

the trial

(noting that

the circumstances

these appellants

of

Parrilla_________

judges possess

cases).

Thus, the

fully supports

the rulings

fair

reason to

and just

required.

Isom,
____

85 F.3d

that

vacate

at

839

(failure to show good cause for withdrawal obviates prejudice-to-

government inquiry).

C.
C.

The Arroyo Sentence

The Arroyo Sentence
___________________

For the first

court

guilty

violated

U.S.S.G.

time, Arroyo contends that

6B1.1(c)

by allowing

the district

him

to plead
_____

before it considered his presentence report ("PSR").5

As

____________________

4Although our cases

to be

considered

occasionally list an additional

whether the parties

reached or

factor

breached a

plea agreement, Isom, 85 F.3d at 834; United States v. Pellerito,

____
_____________
_________
878 F.2d

1535, 1537 (1st Cir. 1989),

(1991)

as a general rule we do not conduct the typical Rule 32

analysis

in cases

involving

cert. denied, 502 U.S. 862

_____ ______

alleged

plea agreement

See, e.g., United States v. Velez-Carrero, 77 F.3d

___ ____ ______________
_____________
1996).

breaches.

11 (1st Cir.

In all events, the government kept its end of the bargain

with appellants.

5Unless it finds
Fed.

R. Crim.

a PSR unnecessary, see U.S.S.G.

___

P. 32(b)(1),

the district

"defer its decision to accept or reject

pursuant to
been

Rules 11(e)(1)(A)

an opportunity to

6B1.1(c)

plea agreement under

and 11(e)(1)(C)

Arroyo

expected to

. . . any plea agreement

____ _________

consider the [PSR].

(emphasis added).

court is

6A1.1 &

until there

. . ."

U.S.S.G.

and the government reached a

Criminal Rule 11(e)(1)(C), providing

specific sentence.

17

has

for a

Arroyo concedes, however,

mandates "plain error"

the failure to raise

review.

this claim below

See Fed. R. Crim.

___

P. 52(b); see
___

also United States v. Olano, 507 U.S. 725 (1993).

____ _____________
_____

The flaw

in

Arroyo's position

is that

he offers

no

reason for equating acceptance of his guilty plea with the accep______ ____

tance of a plea agreement under

____ _________

6B1.1(c).

See United States v.

___ _____________

Ewing, 957 F.2d 115, 118 (4th Cir.) (rejecting similar argument),
_____

cert. denied, 505 U.S. 1210 (1992).

_____ ______

on

September 7, 1994, and,

in accordance with

11(e)(2) (permitting district

or reject Rule

announced

Arroyo entered a guilty plea

court to defer decision

11(e)(1)(C) plea agreements), the

that

its

conditioned upon

Fed. R. Crim. P.

acceptance

its review of

of

the

the PSR.

plea

to accept

district court

agreement

was

See United States v.

___ ______________

Johnson, 53 F.3d 831, 832-33 (7th Cir. 1995) (finding, on similar

_______

facts, that defendant had not been sentenced at Rule 11 hearing).

A PSR was submitted to the district court in timely fashion prior

to

sentencing on

district court

applicable

February 13,

found that

the

guideline range, see

___

1995.

At

the sentencing,

agreed sentence

U.S.S.G

was within

the

the

6B1.2(c)(1), accepted

the plea agreement, see

___

Ewing, 957 F.2d at 118,

_____

and imposed the

sentence prescribed in the plea agreement.

Moreover, Arroyo has not squared his view of

with Fed. R.

Crim. P. 32(b)(3), which prohibits

PSR until the defendant has

the

defendant

served by the

consents

6B1.1(c)

submission of a

pleaded or been found guilty, unless

in writing.

The

overarching purpose

PSR is to assist the district court at sentencing.

__________

18

See
___

U.S.S.G.

completed

6A1.1 &

PSR "before

Fed.

R. Crim.

the sentence

P. 32(b)(1)

is imposed").

persuaded that the district court erred.

(requiring

Nor

are we

But see Olano, 507 U.S.

___ ___ _____

at 732-33 (appellant must establish "error" under Rule 52(b)).6

Finally, we

indictment barred

level

reject

Arroyo from

specified in

the plea

conspiring to distribute

base,

the frivolous

argument

stipulating to

bargain.

the base

Arroyo

"not less" than fifty

that

offense

pled guilty

quantity.

language, the

indictment set no

See United States

___ _____________

(1st Cir. 1996)

upper limit

v. Lindia, 82 F.3d
______

to

grams of cocaine

five kilograms of cocaine, and one kilogram of heroin.

its plain

the

By

on drug

1154, 1159 n.3

(indictment alleging drug dealing "in excess" of

50 kilograms did not bar

50

kilograms).

challenge

the

sentence based on quantity greater than

Although Arroyo

factual

bases

and

for

several other

the

district

appellants

court's

drug

quantity determinations as well, their stipulations to their base

offense

levels

quantities,

constitute

see
___

admissions to

U.S.S.G.

subsidiary

2D1.1(c) (determining

level according to drug quantity).

60, & 1160

the

See Lindia,
___ ______

n.3 (suggesting that guilty plea

drug

base offense

82 F.3d at 1159-

might preclude drug

____________________

6Although

Arroyo offers

interpretation of
that some courts
PSRs be
when

the

U.S.S.G.

authority

6B1.1(c),

the

suggested

our research

indicates

of appeals recommend, but do

made available to

for

not require, that

defendants prior to Rule

applicable guideline

United States v.

no

range

is unclear.

Horne, 987 F.2d 833, 838-39

11 hearings

See, e.g.,
___ ____

(D.C. Cir.), cert.

_____________

_____

denied, 510 U.S.

______

852 (1993).

such

in

course

defendant knew the

plea agreement.

_____

these

We discern no
circumstances,

reason to
however,

precise sentence he was to

suggest
_______

where

the

receive under the

See Fed. R. Crim. P. 11(e)(1)(C).

___

19

quantity

factual

P. 11(f)

challenge).

As the record otherwise discloses adequate

support for the agreed-upon sentence,

(accuracy of

plea), and

see Fed. R. Crim.

___

Arroyo's remaining

arguments

merit

no discussion,

against him.

we

affirm

the

district

court

judgment

20

III
III

CONCLUSION
CONCLUSION
__________

The

case

is

remanded

consistent with this opinion, see

___

for

opinion.

proceedings,

supra pp. 11-12, on the merits

_____

of the pro se plea-withdrawal motion filed

___ __

we express no

further

by Perez, as to which

Notwithstanding our

confidence in

the

district judge who presided over these proceedings, whose conduct

of the other plea-withdrawal proceedings was exemplary, we direct

that the Perez matter be assigned to a different judge on remand.

Mateo, 950
_____

F.2d at 50

n.10.

have demonstrated no error in

and their remaining

As the five

remaining appellants

their plea-withdrawal proceedings,

arguments are meritless, the

district court

judgments relating to those defendants are affirmed.

SO ORDERED.
SO ORDERED.
__________

21

APPENDIX A
APPENDIX A

Appellant
Appellant

Guilty Plea
Guilty Plea

Withdrawal
Withdrawal

Reasons
Reasons

Motion
Motion
Arroyo

9/07/94

12/27/94, sup-

Didn't under-

plemented on

stand plea

1/09/95 and

agreement;

2/13/95.

Rule 11 violations; claimed

innocence.

Garcia

9/07/94

11/28/94

Attorney coercion; thought

it was all or
none package
deal; limited
education.

Lopez

9/07/94

2/02/95

Mistakenly
thought he had
to plead
guilty to both
counts; innocent of firearms charge.

Quintero

9/07/94

11/08/94

Attorney and
familial coercion; innocent
of firearms
charge.

Sanchez

9/08/94

12/09/94

Attorney coercion; 18 years

of age; preoccupied with
federal
carjacking
trial; innocent of drug
charge.

22