United States v. De Alba Pagan

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                              _________________________

          No. 93-2018

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                HECTOR De ALBA PAGAN,

                                Defendant, Appellant.

                              _________________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                    [Hon. Raymond L. Acosta, U.S. District Judge]
                                             ___________________

                              _________________________

                                        Before

                       Selya, Boudin and Stahl, Circuit Judges.
                                                ______________

                              _________________________

               Jorge L. Arroyo, by appointment of the Court, for appellant.
               _______________
               Jose  A. Quiles-Espinosa,  Senior  Litigation Counsel,  with
               ________________________
          whom  Guillermo  Gil, United  States  Attorney,  and Rosa  Emilia
                ______________                                 ____________
          Rodriguez-Velez, Assistant United States Attorney, were on brief,
          _______________
          for the United States.

                              _________________________

                                   August 26, 1994

                              _________________________

SELYA, Circuit  Judge.   On March 22,  1993, defendant-
                    SELYA, Circuit  Judge.
                           ______________

          appellant  Hector De Alba Pagan pled guilty  to five counts of an

          indictment  charging  him, and  twenty-three other  persons, with

          various  drug-trafficking  offenses.    On August  5,  1993,  the

          district court, after first denying defendant's pro  se motion to
                                                          ___  __

          withdraw  his earlier  plea,1 sentenced  him to a  lengthy prison

          term.  This appeal followed.

                    Defendant  makes  several  points.    Distilled,  these

          points reduce to  three broad  issues.  We  address those  issues

          seriatim.
          ________

                                          I.
                                          I.
                                          __

                                   Plea Withdrawal
                                   Plea Withdrawal
                                   _______________

                    Defendant contends  that the  district  court erred  in

          refusing to allow him to  withdraw his guilty plea.  We  review a

          district  court's decision to grant or deny a request to withdraw

          a guilty plea solely for abuse  of discretion.  See United States
                                                          ___ _____________

          v.  Parrilla-Tirado, 22  F.3d 368,  371  (1st Cir.  1994); United
              _______________                                        ______

          States v. Doyle, 981 F.2d 591, 594 (1st Cir. 1992); United States
          ______    _____                                     _____________

          v. Pellerito, 878 F.2d 1535, 1538 (1st Cir. 1989).  Applying that
             _________

          standard, we discern no error.

                    It  is settled that a motion to withdraw a guilty plea,

          made before sentencing,  can be granted "only upon an affirmative

          showing of a `fair  and just reason.'"  Parrilla-Tirado,  22 F.3d
                                                  _______________
                              
          ____________________

               1Defendant filed his motion to withdraw pro se, although, at
                                                       ___ __
          the time, he was represented by counsel.  In the  same motion, he
          asked  the court to discharge his lawyer and appoint a successor.
          The court denied this  request as well.  On  appeal, defendant is
          represented by a newly appointed attorney.

                                          2

at  371  (quoting  Fed.  R.  Crim.  P.  32(d)).    The  burden of

          persuasion rests with  the defendant.   See id.   In  determining
                                                  ___ ___

          whether this  burden has been  carried, an  inquiring court  must

          consider  the totality of  the circumstances, focusing especially

          on four  factors,  namely, (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  the defendant's  plea

          realistically  may  be  characterized as  legally  suspect,  say,

          because it  was involuntary  or  otherwise in  derogation of  the

          requirements  imposed by Fed.  R. Crim. P.  11.  See  id. at 371;
                                                           ___  ___

          Doyle, 981 F.2d  at 594; Pellerito, 878 F.2d at  1537.  If, after
          _____                    _________

          due consideration, the  defendant appears to  have the better  of

          this assessment, the court must  then mull an additional  factor:

          prejudice  to the  government.   See Parrilla-Tirado, 22  F.3d at
                                           ___ _______________

          371;  United  States v.  Kobrosky, 711  F.2d  449, 455  (1st Cir.
                ______________     ________

          1983).   Here, we do not reach the question of prejudice, for the

          defendant's claim,  when  measured by  virtually every  pertinent

          test, fails at the earlier stage.

                    We need not wax  longiloquent.  Defendant asserts three

          reasons for  seeking to  withdraw his plea,  but two of  them are

          hopelessly infirm and do not warrant discussion.  His quest rises

          or falls, therefore, on  his claim that, when he  pleaded guilty,

          he "did not  understand that,  as a consequence  of his plea,  he

          would be sentenced [based  partly] on relevant conduct  that went

          beyond that which he  admitted to in his statements  to the court

3

[at the change-of-plea hearing]."  Appellant's Brief at 16-17.

                    On  this chiaroscuro  record, we  cannot find  that the

          lower court  erred in refusing  to credit this  professed reason.

          After  all, the  court made  it very clear  to defendant  that he

          would be  sentenced  in accordance  with  the provisions  of  the

          sentencing guidelines,  informed  him  of  the  maximum  possible

          punishment, asked  him about promises or  assurances beyond those

          limned  in the plea  agreement (defendant said  there were none),

          and made certain that defendant was told quite pointedly that the

          matter of relevant conduct would be determined at sentencing.

                    To be sure,  defendant claims to have  had a subjective

          understanding  to the  contrary.2   But where,  as here,  a court

          expressly retains  the power to determine  relevant facts bearing

          on sentencing under the guidelines, "a defendant cannot claim . .

          .  that the plea is rendered involuntary when the court exercises

          this  power."   United States  v. Williams,  919 F.2d  1451, 1456
                          _____________     ________

          (10th Cir.  1990),  cert. denied,  499  U.S. 968  (1991);  accord
                              _____ ______                           ______

          United States v. Stephens, 906 F.2d 251, 254 (6th Cir. 1990).  In
          _____________    ________

          short, a defendant's lament that he misjudged the consequences of

          his guilty  plea, without more, is not a fair and just reason for

          setting  the plea  aside.   By the  same token,  the fact  that a

          defendant  misapprehends  the likely  guideline  sentencing range

          does  not constitute  a fair  and just  reason for  withdrawing a
                              
          ____________________

               2Defendant  asserts  that  a   principal  reason  for   this
          subjective belief lay in his lawyer's  statements to him, abetted
          by his lawyer's failure to tell him of comments made by the judge
          at sidebar.   These circumstances are more directly  pertinent to
          the claim of ineffective assistance, see infra Part II.
                                               ___ _____

                                          4

guilty plea.  See  Williams, 919 F.2d  at 1456; United States  v.
                        ___  ________                     _____________

          Bradley, 905 F.2d 359,  360 (11th Cir. 1990); Stephens,  906 F.2d
          _______                                       ________

          at 253;  United  States v.  Jones, 905  F.2d 867,  868 (5th  Cir.
                   ______________     _____

          1990); United States  v. Sweeney,  878 F.2d 68,  69-71 (2nd  Cir.
                 _____________     _______

          1989).3

                    Although the absence of a plausible reason itself often

          constitutes  an insurmountable  obstacle to  a  defendant's plea-

          withdrawal  effort, we  note that,  here,  most of  the remaining

          factors  involved in  the  Parrilla-Tirado test  also counsel  in
                                     _______________

          favor of upholding  the district court's  ruling.  Beyond  noting

          two  vital  pieces of  information    that  defendant has  yet to

          assert his innocence, and  that we have  been unable to find  any

          substantial defect in the  Rule 11 proceedings   we think that it

          would serve  no  useful purpose  to  cite  book and  verse.    It

          suffices  to  say  that the  district  court  did  not abuse  its

          discretion in denying defendant's plea-withdrawal motion.

                                         II.
                                         II.
                                         ___

                                Ineffective Assistance
                                Ineffective Assistance
                                ______________________

                    The Sixth  Amendment requires that  persons accused  of

          crimes shall  receive the benefit  of counsel for  their defense.

          See U.S. Const.,  Amend. VI.  The defendant maintains that he was
          ___

          denied   this  boon   because  his   trial  counsel   acted  both
                              
          ____________________

               3Here, no one supplied the defendant with an estimate of the
          guideline sentencing range during the change-of-plea hearing.  We
          note in passing,  however, that  courts have held  that even  the
          furnishing  of  an incorrect  estimate  to defendant  by  his own
                             _________
          counsel would not afford  a basis for permitting him  to withdraw
          his  earlier  plea.   See,  e.g.,  Williams,  919  F.2d at  1456;
                                ___   ____   ________
          Stephens, 906 F.2d at 253.
          ________

                                          5

irresponsibly and  below an  acceptable standard  of proficiency.

          We do not think this plaint is ripe for appellate review.

                    "We  have  held  with  a regularity  bordering  on  the

          monotonous  that fact-specific  claims of  ineffective assistance

          cannot make their debut on direct review of criminal convictions,

          but,  rather, must originally be presented to, and acted upon by,

          the trial court."  United States v. Mala, 7 F.3d  1058, 1063 (1st
                             _____________    ____

          Cir.  1993) (collecting  cases), cert.  denied,  114 S.  Ct. 1839
                                           _____  ______

          (1994).    Here,  defendant's  complaint  anent  trial  counsel's

          performance  is  utterly factbound,  and cannot  intelligently be

          evaluated on the sparse record that is now before us.

                    Nonetheless,  the rule  reiterated  in Mala  should  be
                                                           ____

          construed in a  practical, commonsense fashion.  The chief reason

          that we  do not  undertake first-instance review  of prototypical

          ineffective  assistance claims  is prudential  in nature.   As we

          said in Mala:
                  ____

                    Since   claims   of  ineffective   assistance
                    involve  a  binary analysis     the defendant
                    must show, first, that  counsel's performance
                    was  constitutionally deficient  and, second,
                    that the deficient performance prejudiced the
                    defense,  see  Strickland v.  Washington, 466
                              ___  __________     __________
                    U.S.  668, 687 (1984)   such claims typically
                    require the resolution of factual issues that
                    cannot  efficaciously  be  addressed  in  the
                    first instance by an appellate tribunal.   In
                    addition, the  trial judge, by reason  of his
                    familiarity with the case, is usually in  the
                    best position  to assess both the  quality of
                    the  legal  representation  afforded  to  the
                    defendant  in  the  district  court  and  the
                    impact    of    any    shortfall   in    that
                    representation.   Under  ideal circumstances,
                    the court of appeals  should have the benefit
                    of  this evaluation; elsewise,  the court, in
                    effect, may be playing blindman's buff.

                                          6

Id.  (some internal citations omitted).
          ___

                    Be  that as  it  may,  the  case  at  bar  possesses  a

          procedural wrinkle:  it must,  in all events, be remanded to  the

          district court for further proceedings, see infra Part III.  That
                                                  ___ _____

          circumstance, coupled with the fact that the claim of ineffective

          assistance  is at  least  colorable,  impels  us  to  direct  the

          district  court,  on remand,  to hold  an evidentiary  hearing in

          advance   of  resentencing   to  determine   whether  defendant's

          conviction  ought to  be set  aside on  Sixth Amendment  grounds.

          Cf., e.g., United  States v. Rodriguez  Rodriguez, 929 F.2d  747,
          ___  ____  ______________    ____________________

          753 (1st  Cir. 1991)  (per curiam)  (directing district  court on

          remand  to conduct  an  inquiry into  defendant's allegations  of

          misconduct by counsel); Mack  v. Smith, 659 F.2d 23, 26 (5th Cir.
                                  ____     _____

          1981)  (per  curiam)  (remanding   for  evidentiary  hearing   to

          determine  if  failure  to file  a  timely  appeal  resulted from

          ineffectiveness of counsel).   Of course, we take no  view of the

          merits of defendant's Sixth Amendment claim.

                                         III.
                                         III.
                                         ____

                                      Sentencing
                                      Sentencing
                                      __________

                    The  defendant  asserts  a  salmagundi  of  grounds  in

          support  of his contention that  the district court  erred in the

          imposition of sentence.  We agree that the sentencing proceedings

          were irremediably flawed and must be conducted afresh.

                    The right of  allocution affords  a criminal  defendant

          the  opportunity to  make a final  plea to  the judge  on his own

          behalf  prior to sentencing.   See United States  v. Behrens, 375
                                         ___ _____________     _______

7

U.S. 162, 165 (1963).  Ancient in law, allocution is  both a rite

          and a right.  It  is designed to temper punishment with  mercy in

          appropriate  cases,  and  to  ensure   that  sentencing  reflects

          individualized circumstances.   See United States  v. Barnes, 948
                                          ___ _____________     ______

          F.2d 325,  328  (7th Cir.  1991).   Furthermore, allocution  "has

          value  in  terms  of  maximizing  the  perceived  equity  of  the

          process."  Id. (citation and internal quotation marks omitted).
                     ___

                    While it can be argued that the right of allocution has

          lost  some  of its  stature since  the  advent of  the sentencing

          guidelines   the guidelines,  we might add, have been  blamed for

          much worse    allocution remains deeply embedded  in our criminal

          jurisprudence.  Indeed, the right is incorporated in the Criminal

          Rules,  which provide in pertinent part that, prior to imposing a

          sentence, the  judge "shall address the  defendant personally and

          determine  if the  defendant wishes  to make  a statement  and to

          present  any information in mitigation of the sentence."  Fed. R.

          Crim. P. 32(a)(1)(C).  If the defendant responds affirmatively to

          this invitation,  he must then be permitted to speak.  See, e.g.,
                                                                 ___  ____

          Barnes, 948 F.2d at 331.
          ______

                    In  this case,  the  court below  did not  specifically

          address  the  defendant  and  make  the  inquiry  that  the  rule

          requires.    Despite this  apparent  failure to  heed  the rule's

          command, the government argues that  the omission, in itself,  is

          not dispositive.  Rather,  the government strives to persuade  us

          that the totality of the circumstances surrounding the sentencing

          hearing,   including  some   specific  interaction   between  the

8

defendant and the judge,  constituted substantial compliance with

          the rule.  We are not convinced.

                    As we have previously observed, allocution continues to

          play a salient  role in criminal  cases.  Thus,  while we do  not

          attach talismanic significance to any particular string of words,

          a defendant must at  least be accorded the functional  equivalent

          of the right.   And, moreover, functional equivalency  should not

          lightly  be assumed.    Though  there may  be  cases  in which  a

          defendant, despite  the absence of  the focused inquiry  that the

          language of the rule requires, can  be said to have received  its

          functional equivalent,  such cases will  be few and  far between.

          Doubts should be resolved in the defendant's favor.

                    To achieve functional equivalency (or, put another way,

          substantial compliance with the imperative of Rule 32 (a)(1)(C)),

          it  is not enough that the sentencing court addresses a defendant

          on  a particular issue, see,  e.g., United States  v. Walker, 896
                                  ___   ____  _____________     ______

          F.2d 295, 300-01 (8th Cir. 1990), affords counsel the opportunity

          to speak, see, e.g., United  States v. Posner, 868 F.2d  720, 724
                    ___  ____  ______________    ______

          (5th Cir. 1989), or hears the defendant's specific objections  to

          the presentence report, see, e.g., United States v. Phillips, 936
                                  ___  ____  _____________    ________

          F.2d  1252, 1255-56  (11th Cir.  1991).   Rather, the  court, the

          prosecutor,  and the defendant must at the very least interact in

          a manner that shows clearly  and convincingly that the  defendant

          knew he had a right to speak on any subject of his choosing prior

          to the imposition of sentence.   See Green v. United States,  365
                                           ___ _____    _____________

          U.S. 301, 304-05 (1961).

9

Viewed against this backdrop, we cannot find functional

          equivalency  or  substantial  compliance   here.    Although  the

          defendant  did engage  in  discussion of  specific points  at the

          disposition  hearing, the court did  not, either explicitly or by

          fair  implication, invite him to  speak on a  broader, more wide-

          ranging level.  Nor does the record furnish any other basis for a

          finding that  defendant knew of his  right to allocute.   In this

          case, then, the  court's failure to comply with  Rule 32(a)(1)(C)

          constituted reversible error.4

                    We say "reversible" because, in this type of situation,

          we cannot dismiss the error  as harmless.  As early as  1689, the

          common law  acknowledged  that  a  court's failure  to  invite  a

          defendant  to speak  before  sentencing required  reversal.   See
                                                                        ___

          Barnes,  948 F.2d at  328 (citing Anonymous, 3  Mod. 265, 266, 87
          ______                            _________

          Eng.Rep. 175 (K.B. 1689)).   This axiom has survived  the passage

          of time.  It is settled that a failure to comply with the mandate

          of Rule 32(a)(1)(C) ordinarily  requires vacation of the sentence

          imposed without a concomitant inquiry into prejudice.  See United
                                                                 ___ ______

          States  v. Maldonado, 996 F.2d  598, 599 (2d  Cir. 1993); Barnes,
          ______     _________                                      ______

          948 F.2d  at 332; Phillips, 936 F.2d at 1256; Walker, 896 F.2d at
                            ________                    ______

          301; Posner, 868  F.2d at 724; United States v. Buckley, 847 F.2d
               ______                    _____________    _______

          991,  1002 (1st Cir. 1988),  cert. denied, 488  U.S. 1015 (1989);
                                       _____ ______

          United  States v. Navarro-Flores,  628 F.2d 1178,  1184 (9th Cir.
          ______________    ______________
                              
          ____________________

               4Under  Rule 32(a)(1)(C),  it is  the court's  obligation to
          invite  the defendant's  remarks.   Thus, a  defendant ordinarily
          will not be  held to have  waived the right of  allocution merely
          because he  did not seek to  address the court.   See Barnes, 948
                                                            ___ ______
          F.2d at 330-31; see also Walker, 896 F.2d at 300.
                          ___ ____ ______

                                          10

1984); cf. United  States v.  Miller, 849 F.2d  896, 897-98  (4th
                 ___ ______________     ______

          Cir. 1988) (remanding for  failure to meet strictures of  Fed. R.

          Crim. P. 32(a)(1)(A) and (C)).  This is  so precisely because the

          impact of  the omission  on a  discretionary decision is  usually

          enormously difficult to ascertain.5

                    In   line  with   this  virtually  unbroken   skein  of

          authorities, we hold, that if  the trial court fails to  afford a

          defendant  either  the  right  of allocution  conferred  by  Rule

          32(a)(1)(C) or its functional equivalent, vacation of the ensuing

          sentence must follow automatically.  So it is here.6

We affirm  the district court's  denial of  defendant's
                    _______________________________________________________

          plea-withdrawal  motion,  but  vacate  defendant's  sentence  and
          _________________________________________________________________

          remand for further proceedings as described herein.  So ordered.
          _______________________________________________________________

____________________

               5This is not necessarily so, of course, when the sentence is
          the minimum  possible.   Thus, the  Ninth Circuit  has undertaken
          harmless-error analysis in certain cases in which a defendant has
          been  denied  his  right  to  allocution,  limited,  however,  to
          instances in  which a sentence is  "already as short as  it could
          possibly be under the  Guidelines."  United States v.  Carper, 24
                                               _____________     ______
          F.3d  1157, 1162  (9th  Cir. 1994);  see  also United  States  v.
                                               ___  ____ ______________
          Ortega-Lopez, 988 F.2d 70,  72-73 (9th Cir.  1993).  The case  at
          ____________
          hand is not such a case.

               6Because further  proceedings are required, we  do not reach
          the  remaining  sentence-related issues  raised  on  appeal.   We
          assume that, at the appropriate juncture, the district court will
          traverse  that  ground and  make  new  findings  on an  augmented
          record.

                                          11