USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1297
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN MANUEL SANCHEZ-BARRETO,
Defendant, Appellant.
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No. 95-1299
UNITED STATES OF AMERICA,
Appellee,
v.
JACKSON QUINTERO-FIGUEROA,
Defendant, Appellant.
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No. 95-1300
UNITED STATES OF AMERICA,
Appellee,
v.
JORGE L. PEREZ-GARCIA,
a/k/a PITO CABALLO,
Defendant, Appellant.
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No. 95-1303
UNITED STATES OF AMERICA,
Appellee,
v.
LUIS GARCIA-CRUZ,
Defendant, Appellant.
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No. 95-1306
UNITED STATES OF AMERICA,
Appellee,
v.
ELIGIO LOPEZ-AYALA,
Defendant, Appellant.
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No. 95-1404
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN CARLOS ARROYO-REYES,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jos Antonio Fust , U.S. District Judge]
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Before
Selya and Cyr, Circuit Judges,
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and Gertner,* District Judge.
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*Of the District of Massachusetts, sitting by designation.
2
Jos A. Pagan Nieves, with whom Jos A. Pagan Nieves Law Offices
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was on brief for appellant Sanchez Barreto.
Carmen R. De J sus for appellant Quintero Figueroa.
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Rafael F. Castro Lang for appellant Perez Garcia.
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Lydia Lizarribar-Masini on brief for appellant Garcia Cruz.
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Eduardo Caballero Reyes for appellant Lopez Ayala.
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Victor P. Miranda Corrada for appellant Arroyo Reyes.
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Miguel A. Pereira, Assistant United States Attorney, with whom
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Guillermo Gil, United States Attorney, and Jos A. Quiles-Espinosa,
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Senior Litigation Counsel, were on brief for appellee.
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August 21, 1996
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3
CYR, Circuit Judge. Appellants Juan Carlos Arroyo-
CYR, Circuit Judge
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Reyes ("Arroyo"), Luis Garcia-Cruz ("Garcia"), Eligio Lopez-Ayala
("Lopez"), Jorge Perez-Garcia ("Perez"), Jackson Quintero-
Figueroa ("Quintero"), and Juan Sanchez-Barreto ("Sanchez")
contend, among other things, that the district court erred in
denying their requests to withdraw their guilty pleas. See Fed.
___
R. Crim. P. 32(e). We remand the Sixth Amendment claim presented
by Perez and affirm the district court judgments against the
remaining appellants.
I
I
BACKGROUND
BACKGROUND
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On March 9, 1994, a federal grand jury in Puerto Rico
returned a five-count indictment charging appellants with, inter
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alia, conspiracy to distribute not less than fifty grams of
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cocaine base, five kilograms of cocaine, and one kilogram of
heroin, in violation of 21 U.S.C. 841(a)(1), 846 (1994), and
with using or carrying firearms in connection with a drug
offense, in violation of 18 U.S.C. 924(c)(1) (1994). A
superseding indictment alleged that appellants belonged to a
twenty-six member gang that operated a "drug point" in Toa Baja,
Puerto Rico, and used firearms to defend against rival gangs and
discourage honest citizens from informing the police.
Appellants initially pled not guilty to the charges.
Just before trial, however, with the advice of counsel,
appellants entered guilty pleas to the drug conspiracy and
firearms counts and the government agreed to dismiss the
4
remaining counts. After the district court accepted their guilty
pleas, and before sentencing, see Appendix A, appellants sought
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to withdraw their pleas. See Fed. R. Crim. P. 32(e) ("If a
___
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 just reason."). The district court
denied their motions and imposed sentences consistent with their
respective plea agreements.
II
II
DISCUSSION
DISCUSSION
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A. The Perez Appeal
A. The Perez Appeal
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Perez claims that he was denied effective assistance of
counsel at the hearing on his pro se motion to withdraw his
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guilty plea. See U.S. Const. amend. VI. The government responds
___
that Perez (1) did not ask the court to appoint new counsel, and
(2) has not shown that appointed counsel, Jos R. Aguayo,
Esquire, labored under an actual conflict of interest within the
meaning of United States v. Soldevila-Lopez, 17 F.3d 480 (1st
______________ _______________
Cir. 1994).
1. Waiver
1. Waiver
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The Sixth Amendment right to effective assistance of
counsel inheres at all "critical stages" of a criminal proceeding
unless competently waived. United States v. Mateo, 950 F.2d 44,
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47 (1st Cir. 1991). A plea withdrawal hearing is a "critical
stage" in the criminal proceeding. United States v. Crowley, 529
_____________ _______
F.2d 1066, 1069 (3d Cir.), cert. denied, 425 U.S. 995 (1976).
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5
The right to counsel is not contingent upon a request by the
defendant; rather, "we presume that the defendant requests the
lawyer's services at every critical stage of the prosecution."
Michigan v. Jackson, 475 U.S. 625, 633 & n.6 (1986). In all
________ _______
events, Perez requested counsel at the outset, and the district
court appointed Jos R. Aguayo, Esquire.
_
Thus, contrary to the government's suggestion, nothing
in the record remotely indicates that Perez knowingly and
voluntarily waived his Sixth Amendment right to counsel at the
plea withdrawal hearing. Compare United States v. Saccoccia, 58
_______ _____________ _________
F.3d 754, 771-72 (1st Cir. 1995) (defendant repeatedly waived
representation by conflict-free counsel), cert. denied, 116 S.
_____ ______
Ct. 1322 (1996); see also United States v. Betancourt-Arretuche,
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933 F.2d 89, 92 (1st Cir.) (discussing waiver elements), cert.
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denied, 502 U.S. 959 (1991). Finding no waiver, we next consider
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whether Perez has demonstrated that court-appointed counsel
failed to afford effective assistance at the plea withdrawal
hearing.
2. Conflict of Interest
2. Conflict of Interest
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The government contends that Perez must demonstrate "an
actual conflict of interest adversely affect[ing] his lawyer's
performance." Soldevila-Lopez, 17 F.3d at 486 (quoting Cuyler v.
_______________ ______
Sullivan, 446 U.S. 335, 348 (1980)). Thus, the government says
________
Perez was required to show that court-appointed counsel could
have pursued a plausible alternative tactic or strategy were it
not for an inherent conflict of interest or other loyalties that
6
caused him not to do so. Id.; Guaraldi v. Cunningham, 819 F.2d
___ ________ __________
15, 17 (1st Cir. 1987).
7
We noted in Soldevila-Lopez that "[c]ourts have recog-
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nized actual conflicts of interest between an attorney and his
client when pursuit of a client's interests would lead to
evidence of an attorney's malpractice." Soldevila-Lopez, 17 F.3d
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at 486 (citing United States v. Ellison, 798 F.2d 1102, 1106-08
_____________ _______
(7th Cir. 1986), cert. denied, 479 U.S. 1038 (1987), and Mathis
_____ ______ ______
v. Hood, 937 F.2d 790, 795 (2d Cir. 1991)). The absence of any
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malpractice or ethics complaint in Soldevila-Lopez nonetheless
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led us to conclude that a conflict-of-interest finding should not
be based solely on an inference that the client might have
benefited had defense counsel raised the client's mental
incompetency claim prior to trial. Id. at 486-87.
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The government's contention that Perez' Sixth Amendment
claim is indistinguishable from that in Soldevila-Lopez is
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untenable, since Perez plainly alleged facts amounting to
malpractice, if found to be true. That is, the Perez motion to
withdraw his guilty plea alleged that Aguayo had pressured him
into pleading guilty at the earlier Rule 11 change-of-plea
hearing in order to "hide [Aguayo's] lack of preparation" for
trial. Perez further alleged that Aguayo had not made even
"minimum" efforts to "act as his counsel or defender" and was
only interested in a fee, but see infra note 1, thus leaving no
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doubt that Perez wanted replacement counsel.
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In United States v. Ellison, 798 F.2d 1102 (7th Cir.
_____________ _______
1986), cert. denied, 479 U.S. 1038 (1987), the district court was
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presented with a virtually identical situation in which the
8
defendant had filed a pro se motion to withdraw a guilty plea,
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alleging that court-appointed counsel had persuaded him to forgo
trial (despite Ellison's assertions of innocence) because counsel
"did not want to make waves with the federal prosecutors with
whom he would be working in the future." Id. at 1106. The
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district court neither appointed new counsel nor 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 pursue his
client's best interests free from the influ-
ence of his concern about possible self-in-
crimination. . . . [I]f the allegations in
defendant's motion were true, his actions
would be tantamount to malpractice. Any
contention by counsel that defendant's
allegations were not true would (and did)
contradict his client. In testifying against
his client, 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
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guilty plea based on alleged attorney coercion created an actual
conflict of interest). The identical logic fully warrants the
conclusion that Aguayo may have been laboring under 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,
9
we think the appropriate course in this case is to remand for
further factfinding on the merits of the Perez allegations
against Aguayo. As we recognized in Soldevila-Lopez, 17
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F.3d at 486, a claim that counsel was disabled by an actual
conflict of interest at a critical stage in the criminal
proceeding amounts to an ineffective assistance claim not
normally appropriate for consideration on direct appeal. See
___
United States v. Natanel, 938 F.2d 302, 309 (1st Cir. 1991),
______________ _______
cert. denied, 502 U.S. 1079 (1992). Moreover, the district court
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record is not "sufficiently developed to allow reasoned consider-
ation" of the merits of the pro se plea-withdrawal motion itself,
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Soldevila-Lopez, 17 F.3d at 486 (quoting Natanel, 938 F.2d at
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309), since its underlying conflict-of-interest allegations
against Aguayo were never subjected to factfinding in the
district court.
The district court failed to determine, in the first
instance, whether Perez had made "an intelligent and competent
waiver" of his Sixth Amendment right to counsel before proceeding
to hear the plea-withdrawal motion with Perez acting pro se. See
___ __ ___
Mateo, 950 F.2d at 47. Instead, it opened the plea-withdrawal
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hearing with questions to Aguayo about the pro se plea-withdrawal
___ __
motion. Whereupon Aguayo extolled the benefits of the plea
agreement, stated that there were no errors in the earlier Rule
11 plea colloquy conducted by the district court, nor any basis
in law for Perez' pro se plea-withdrawal motion, and, in all
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events, that Perez was better off with the plea bargain, given
10
the unlikelihood the he could prevail at trial. Summing up,
Aguayo stated: "I really don't understand why [Perez] wants to
withdraw [the plea agreement]." Compare United States v. Daniel,
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962 F.2d 100, 102 (1st Cir. 1992) (attorney argued vigorously and
successfully for client after raising potential conflict).
Whatever their independent merit,1 the views expressed by Aguayo
at the plea-withdrawal hearing directly contradicted the position
advocated by Perez in the pro se motion to withdraw his guilty
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plea. Thus, the Rule 32(e) hearing record leaves no doubt that
Perez was left to fend for himself, without representation by
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counsel. But see Crowley, 529 F.2d at 1069 (plea withdrawal
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hearing is "critical stage" in criminal proceeding). Conse-
quently, Perez was denied effective assistance at the plea-
withdrawal hearing. See Soldevila-Lopez, 17 F.3d at 486;
___ _______________
Ellison, 798 F.2d at 1106-08.
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In many instances a trial court may have no reason to
question whether counsel's personal or professional interests
might preclude "effective assistance" to the defendant. In such
circumstances, 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
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1The record discloses cause for Aguayo's concerns for his
client (and for the district court's concern as well) since upon
conviction Perez would face a ninety-year minimum term of
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imprisonment, rather than the seventeen-year maximum term
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negotiated for him under the plea agreement.
11
course of the proceedings. Guaraldi, 819 F.2d at 18.2 On the
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other hand, when the trial court learns or has reason to know
that there is a colorable conflict, it should initiate an
appropriate inquiry to safeguard the accused's Sixth Amendment
rights. Soldevila-Lopez, 17 F.3d at 487; United States v. Allen,
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789 F.2d 90, 92 (1st Cir.) ("Where the accused voices objection
to appointed counsel, the trial court should inquire into the
reasons for the dissatisfaction."), cert. denied, 479 U.S. 846
_____ ______
(1986); see generally 2 Wayne R. LaFave & Jerold H. Israel,
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Criminal Procedure 11.4(b), at pp. 36-37 (1984) (replacement of
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appointed counsel); cf. Fed. R. Crim. P. 44(c) (mandating inquiry
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into joint representation).
Given the clarity and specificity of the malpractice
allegations in the pro se plea-withdrawal motion filed by Perez,
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and Aguayo's sua sponte attempt to terminate his representation
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at the outset of the plea-withdrawal hearing, the appropriate
course for the district court was to resolve the factual dispute
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2Were there any substance to Perez' allegations against
Aguayo, a matter yet to be addressed by the district court,
D.P.R. Loc. R. 211.4 would appear to have required that Aguayo
observe Model Rule of Professional Conduct 1.7(b), prohibiting
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represent-ation where personal or professional interests
materially restrict counsel's freedom of action in support of a
client's interests. See also id. Rule 1.16(a)(1) (imposing duty
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to terminate representation). In all events, at the outset of
the plea-withdrawal hearing, Aguayo promptly indicated that he
intended to withdraw as counsel. The district court nonetheless
proceeded with the hearing, took no action on Aguayo's withdrawal
suggestion and, for all intents and purposes, continued to treat
Aguayo as Perez' counsel, without first determining the disputed
facts underlying the Perez allegations against Aguayo. Thus, the
factual linchpin to the ineffective assistance claim whether
Aguayo in fact labored under a conflict of interest has yet to
be subjected to factfinding.
12
in keeping with the adversarial nature of the plea-withdrawal
request. 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) motion, see Ellison, 798 F.2d 1108-09;
___ __ ___ _______
United States v. Wadsworth, 830 F.2d 1500, 1510-11 (9th Cir.
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1987), appointment of replacement counsel was the only appropri-
ate course. As the hearing transcript plainly demonstrates, the
failure to conduct the required factual inquiry resulted in an
unconstitutional breakdown in the adversarial process, which
compels a remand for further proceedings. See 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 to determine the merits of Perez'
allegations against Aguayo, so as to enable its ultimate
determination whether the guilty plea itself was rendered
involuntary by a violation of Perez' Sixth Amendment right to
counsel at all critical stages of the proceeding. See Hill v.
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Lockhart, 474 U.S. 52, 56 (1985) (ineffective assistance during
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bargaining may render plea involuntary).
B. The Plea Withdrawal Motions
B. The Plea Withdrawal Motions
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by the Remaining Defendants
by the Remaining Defendants
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We now turn to the claims advanced by the remaining
defendants. Under the well-established framework for evaluating
plea-withdrawal motions, the district court 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 characterized as
involuntary, in derogation of the
requirements imposed by Fed. R. Crim. P. 11,
or otherwise legally suspect.
United States v. Parrilla-Tirado, 22 F.3d 368, 371 (1st Cir.
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1994) (footnote omitted). If the defendant carries the burden of
persuasion on these four criteria, the district court may still
decline to allow the plea to be withdrawn if it would unfairly
prejudice the government. United States v. Doyle, 981 F.2d 591,
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594 (1st Cir. 1992). Moreover, absent a demonstrable abuse of
discretion, we will not reverse a district court decision
granting or denying a request to withdraw a guilty plea filed
before sentencing. United States v. Martinez-Molina, 64 F.3d
______________ _______________
719, 732 (1st Cir. 1995).
1. Voluntariness
1. Voluntariness
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The most prominent single factor whether these pleas
were knowing, voluntary, and intelligent, within the meaning of
Criminal Rule 11(d), United States v. Cotal-Crespo, 47 F.3d 1, 3
_____________ ____________
(1st Cir.), cert. denied, 116 S. Ct. 94 (1995) does not favor
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these appellants. We have found no abuse of discretion in
disallowing plea withdrawal motions where Rule 11 safeguards were
scrupulously followed by the district court. See, e.g., United
___ ____ ______
States v. Austin, 948 F.2d 783, 787 (1st Cir. 1991). These
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appellants uniformly have failed to identify any defect in their
Rule 11 plea colloquies. Rather, appellants contend that their
14
pleas were rendered involuntary by their attorneys'
recommendations to accept the plea bargains offered by the
government on the morning trial was scheduled to begin. 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 F.3d 732-34. The Rule 11
___ _______________
hearing transcripts in this case disclose that each appellant
repeatedly informed the district court that his guilty plea had
not been coerced by anyone, thereby substantiating the threshold
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voluntariness determination for Rule 11(d) purposes. United
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States v. Martinez-Martinez, 69 F.3d 1215, 1223 (1st Cir. 1995)
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(inquiring whether anyone has coerced the plea satisfies Rule
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11), cert. denied, 116 S. Ct. 1343 (1996); compare Martinez-
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Molina, 64 F.3d at 733-34 (inquiry restricted to prosecutorial
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coercion insufficient). Consequently, without more, their
general allegations of coercion, based on the imminence of trial
or conflict-free defense counsel's enthusiasm for the negotiated
plea bargain, are insufficient to establish an abuse of discre-
tion. Austin, 948 F.2d at 786-87 (noting that court has
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discretion to refuse withdrawal of "eleventh hour" plea).
2. Timing
2. Timing
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The delays in filing their Rule 32(e) motions likewise
handicap appellants' challenges. See Appendix A. Even a request
___
filed prior to sentencing, United States v. Isom, 85 F.3d 831,
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15
838-39 (1st Cir. 1996), must meet the challenge that "the longer
a defendant waits before moving to withdraw his plea, the more
potency his motion must have in order to gain favorable consider-
ation." Parrilla-Tirado, 22 F.3d at 373. These appellants, on
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the other hand, offer neither plausible grounds for withdrawing
their pleas, nor explanations for their extended delays in filing
Rule 32(e) motions. See Doyle, 981 F.2d at 595 ("the timing of a
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defendant's attempted plea withdrawal is highly probative of
motive"); United States v. Ramos, 810 F.2d 308, 312 (1st Cir.
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1987) (contemplating change of heart within days of plea). Thus,
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the district court soundly concluded that their belated plea-
withdrawal motions substantially weakened appellants' claims that
their guilty pleas resulted from confusion or coercion.
3. Claims of Innocence
3. Claims of Innocence
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Their belated claims of innocence likewise fail to tilt
the balance. The district judge is better positioned to
determine whether claims of innocence are credible. See
___
Parrilla-Tirado, 22 F.3d at 371. Defendants freely admitted
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their guilt during the flawless Rule 11 proceedings conducted
below, and the subsequent Rule 32(e) hearing record evinces only
weak and implausible assertions of innocence.3 The district
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3See Ramos, 810 F.2d at 313 (rejecting "self-serving, unsup-
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ported claim of innocence raised judicially for the first time
after the Rule 11 hearing"). Here, Sanchez admitted using
firearms, but denied the drug charge, whereas Quintero admitted
selling a small quantity of cocaine, but denied the firearm
charge. Lopez sought to withdraw his plea to the firearm charge.
Garcia asserted no claim of innocence. Confronted with a group
photograph, in which several codefendants 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
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Once again we emphasize: there is no absolute right to
withdraw a guilty plea, Austin, 948 F.2d at 786; the decision is
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left to the sound discretion of the trial court. Parrilla-
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Tirado, 22 F.3d at 371 (noting that district judges possess
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special insight into the dynamics of their cases). Thus, the
totality of the circumstances fully supports the rulings that
these appellants presented no fair and just reason to vacate
their pleas. No more was required. Isom, 85 F.3d at 839
____
(failure to show good cause for withdrawal obviates prejudice-to-
government inquiry).
C. The Arroyo Sentence
C. The Arroyo Sentence
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For the first time, Arroyo contends that the district
court violated U.S.S.G. 6B1.1(c) by allowing him to plead
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guilty before it considered his presentence report ("PSR").5 As
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4Although our cases occasionally list an additional factor
to be considered whether the parties reached or breached a
plea agreement, Isom, 85 F.3d at 834; United States v. Pellerito,
____ _____________ _________
878 F.2d 1535, 1537 (1st Cir. 1989), cert. denied, 502 U.S. 862
_____ ______
(1991) as a general rule we do not conduct the typical Rule 32
analysis in cases involving alleged plea agreement breaches.
See, e.g., United States v. Velez-Carrero, 77 F.3d 11 (1st Cir.
___ ____ ______________ _____________
1996). In all events, the government kept its end of the bargain
with appellants.
5Unless it finds a PSR unnecessary, see U.S.S.G. 6A1.1 &
___
Fed. R. Crim. P. 32(b)(1), the district court is expected to
"defer its decision to accept or reject . . . any plea agreement
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pursuant to Rules 11(e)(1)(A) and 11(e)(1)(C) until there has
been an opportunity to consider the [PSR]. . . ." U.S.S.G.
6B1.1(c) (emphasis added). Arroyo and the government reached a
plea agreement under Criminal Rule 11(e)(1)(C), providing for a
specific sentence.
17
Arroyo concedes, however, the failure to raise this claim below
mandates "plain error" review. See Fed. R. Crim. P. 52(b); see
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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-
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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). Arroyo entered a guilty plea
_____ ______
on September 7, 1994, and, in accordance with Fed. R. Crim. P.
11(e)(2) (permitting district court to defer decision to accept
or reject Rule 11(e)(1)(C) plea agreements), the district court
announced that its acceptance of the plea agreement was
conditioned upon its review of the PSR. 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 February 13, 1995. At the sentencing, the
district court found that the agreed sentence was within the
applicable guideline range, see U.S.S.G 6B1.2(c)(1), accepted
___
the plea agreement, see Ewing, 957 F.2d at 118, and imposed the
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sentence prescribed in the plea agreement.
Moreover, Arroyo has not squared his view of 6B1.1(c)
with Fed. R. Crim. P. 32(b)(3), which prohibits submission of a
PSR until the defendant has pleaded or been found guilty, unless
the defendant consents in writing. The overarching purpose
served by the PSR is to assist the district court at sentencing.
__________
18
See U.S.S.G. 6A1.1 & Fed. R. Crim. P. 32(b)(1) (requiring
___
completed PSR "before the sentence is imposed"). Nor are we
persuaded that the district court erred. But see Olano, 507 U.S.
___ ___ _____
at 732-33 (appellant must establish "error" under Rule 52(b)).6
Finally, we reject the frivolous argument that the
indictment barred Arroyo from stipulating to the base offense
level specified in the plea bargain. Arroyo pled guilty to
conspiring to distribute "not less" than fifty grams of cocaine
base, five kilograms of cocaine, and one kilogram of heroin. By
its plain language, the indictment set no upper limit on drug
quantity. See United States v. Lindia, 82 F.3d 1154, 1159 n.3
___ _____________ ______
(1st Cir. 1996) (indictment alleging drug dealing "in excess" of
50 kilograms did not bar sentence based on quantity greater than
50 kilograms). Although Arroyo and several other appellants
challenge the factual bases for the district court's drug
quantity determinations as well, their stipulations to their base
offense levels constitute admissions to the subsidiary drug
quantities, see U.S.S.G. 2D1.1(c) (determining base offense
___
level according to drug quantity). See Lindia, 82 F.3d at 1159-
___ ______
60, & 1160 n.3 (suggesting that guilty plea might preclude drug
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6Although Arroyo offers no authority for the suggested
interpretation of U.S.S.G. 6B1.1(c), our research indicates
that some courts of appeals recommend, but do not require, that
PSRs be made available to defendants prior to Rule 11 hearings
when the applicable guideline range is unclear. See, e.g.,
___ ____
United States v. Horne, 987 F.2d 833, 838-39 (D.C. Cir.), cert.
_____________ _____ _____
denied, 510 U.S. 852 (1993). We discern no reason to suggest
______ _______
such a course in these circumstances, however, where the
defendant knew the precise sentence he was to receive under the
plea agreement. See Fed. R. Crim. P. 11(e)(1)(C).
___
19
quantity challenge). As the record otherwise discloses adequate
factual support for the agreed-upon sentence, see Fed. R. Crim.
___
P. 11(f) (accuracy of plea), and Arroyo's remaining arguments
merit no discussion, we affirm the district court judgment
against him.
20
III
III
CONCLUSION
CONCLUSION
__________
The case is remanded for further proceedings,
consistent with this opinion, see supra pp. 11-12, on the merits
___ _____
of the pro se plea-withdrawal motion filed by Perez, as to which
___ __
we express no opinion. 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. As the five remaining appellants
_____
have demonstrated no error in their plea-withdrawal proceedings,
and their remaining arguments are meritless, the district court
judgments relating to those defendants are affirmed.
SO ORDERED.
SO ORDERED.
__________
21
APPENDIX A
APPENDIX A
Appellant Guilty Plea Withdrawal Reasons
Appellant Guilty Plea Withdrawal 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 viola-
tions; claimed
innocence.
Garcia 9/07/94 11/28/94 Attorney coer-
cion; 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; inno-
cent of fire-
arms charge.
Quintero 9/07/94 11/08/94 Attorney and
familial coer-
cion; innocent
of firearms
charge.
Sanchez 9/08/94 12/09/94 Attorney coer-
cion; 18 years
of age; preoc-
cupied with
federal
carjacking
trial; inno-
cent of drug
charge.
22