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indictment
various
On March 22,
charging
him, and
drug-trafficking
1993, defendant-
to five counts of an
twenty-three other
offenses.
On August
his earlier
plea,1 sentenced
him to a
persons, with
5,
1993,
the
se motion to
__
lengthy prison
points reduce to
seriatim.
________
makes
several
three broad
points.
issues.
We
Distilled,
address those
these
issues
I.
I.
__
Plea Withdrawal
Plea Withdrawal
_______________
Defendant contends
refusing to allow him to
district
district
court erred
We
in
review a
that the
Parrilla-Tirado, 22
_______________
of discretion.
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
Parrilla-Tirado,
_______________
22 F.3d
____________________
at
371
(quoting
Fed.
R.
factors,
motion;
because it
may
(3) the
be
In
the plausibility
plea; (2) the
or
determining
characterized as
or
of the
must
reasons
timing of
nonexistence of
the defendant's
legally
otherwise in
R. Crim. P.
11.
defendant appears to
suspect,
derogation of
burden of
inquiring court
(4) whether
imposed by Fed.
See id.
___ ___
existence
and
was involuntary
requirements
The
change of
of innocence;
realistically
32(d)).
carried, an
namely, (1)
P.
the defendant.
the totality of
assertion
Crim.
See
___
the
an
plea
say,
the
id. at 371;
___
1537.
If, after
of
factor:
prejudice
See Parrilla-Tirado, 22
___ _______________
F.3d at
371;
1983).
to the
government.
United States v.
______________
Kobrosky, 711
________
F.2d
449, 455
(1st Cir.
defendant's claim,
when
measured by
virtually every
pertinent
seeking to
longiloquent.
but two of
them are
or falls, therefore, on
he "did not
understand that,
as a consequence
pleaded guilty,
of his plea,
he
that went
to the court
this chiaroscuro
erred in refusing
all, the
would be
court made
sentenced
punishment, asked
limned
record, we
it very clear
informed
with
him
of
in the plea
cannot find
to credit this
in accordance
sentencing guidelines,
professed reason.
to defendant
the provisions
the
that the
maximum
that he
of
the
possible
and made certain that defendant was told quite pointedly that the
matter of relevant conduct would be determined at sentencing.
To be sure,
understanding
to the
expressly retains
But where,
had a subjective
as here,
a court
this
power."
(10th Cir.
United States
_____________
1990),
v. Williams,
________
cert. denied,
_____ ______
499
919 F.2d
U.S. 968
1451, 1456
(1991);
accord
______
United States v. Stephens, 906 F.2d 251, 254 (6th Cir. 1990).
_____________
________
In
the plea
aside.
misapprehends
not constitute
By the
same token,
the likely
a fair
and just
guideline
the fact
that a
sentencing range
reason for
withdrawing a
____________________
guilty plea.
See
___
United States v.
______________
Jones, 905
_____
v. Sweeney,
F.2d 867,
v.
906 F.2d
868 (5th
Cir.
69-71 (2nd
Cir.
_____________
_______
1989).3
an insurmountable
effort, we
involved in
favor of upholding
two
vital
obstacle to
note that,
the
here,
Parrilla-Tirado test
_______________
information
that
noting
defendant has
yet to
Rule 11 proceedings
suffices
to
useful purpose
say
that the
to
cite
district
any
we think that it
book and
court
in
Beyond
that we have
no
the remaining
also counsel
ruling.
would serve
defendant's plea-
most of
pieces of
did
verse.
It
not abuse
its
this
Amend. VI.
boon
because
persons accused
of counsel for
of
their defense.
trial
counsel
acted
both
____________________
irresponsibly and
below an
acceptable standard
of proficiency.
have
held
with
a regularity
that fact-specific
claims of
bordering
on
the
ineffective assistance
1993) (collecting
(1994).
Here,
performance
is
cases), cert.
_____
defendant's
complaint
utterly factbound,
denied,
______
anent
and cannot
Ct. 1839
trial
counsel's
intelligently be
do not
ineffective
said in Mala:
____
the rule
reiterated
in Mala
____
is prudential
be
assistance claims
should
of prototypical
in nature.
As we
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.
___
that as
procedural wrinkle:
it
may,
it must,
the
case
at
bar
possesses
the
That
is at
district
court,
advance
of
least
colorable,
on remand,
resentencing
to hold
to
impels
us
to
an evidentiary
determine
whether
direct
the
hearing in
defendant's
conviction
ought to
be set
aside on
Sixth Amendment
grounds.
Cir. 1991)
to conduct
(per curiam)
an
inquiry into
(per
determine
curiam)
if
(directing district
court on
defendant's allegations
of
(remanding
failure
747,
for
to file
ineffectiveness of counsel).
evidentiary
timely
appeal
hearing
to
resulted from
Of course, we take no
view of the
defendant
asserts
imposition of sentence.
salmagundi
of
grounds
in
erred in the
opportunity to
behalf
allocution affords
make a final
prior to sentencing.
plea to
a criminal
defendant
the judge
on his own
v. Behrens, 375
_______
It
appropriate
cases,
and
to
ensure
individualized circumstances.
F.2d 325,
328
value
terms
in
process."
both a rite
(7th Cir.
of
that
sentencing
1991).
maximizing
mercy in
reflects
v. Barnes, 948
______
Furthermore, allocution
the
perceived
equity
"has
of
the
some
of its
guidelines
the guidelines,
much worse
the
advent of
the sentencing
jurisprudence.
Rules,
stature since
blamed for
in our criminal
sentence, the
determine
present
if the
defendant wishes
to make
a statement
Crim. P. 32(a)(1)(C).
this invitation,
and to
Fed. R.
See, e.g.,
___ ____
address
requires.
In
this case,
the
defendant
Despite this
the
and
court below
make
apparent
the
did not
inquiry
failure to
specifically
that
heed
the
rule
the rule's
Rather,
is
us
including
some
specific
interaction
between
the
role in criminal
cases.
Thus,
while we do
not
equivalent
should not
be assumed.
defendant, despite
Though
there may
the absence of
be
cases
in which
that the
be few and
its
far between.
on
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
to
1252, 1255-56
prosecutor,
(11th Cir.
1991).
Rather, the
court, the
defendant
365
or
substantial
did engage
in
compliance
discussion of
ranging level.
here.
Although
specific points
the
at the
speak on a
finding that
right to allocute.
In this
Rule 32(a)(1)(C)
acknowledged
to speak
948 F.2d at
that
before
As early as
court's failure
sentencing required
as harmless.
to
See
___
the passage
See United
___ ______
948 F.2d
invite
reversal.
States
______
1689, the
____________________
the omission
896, 897-98
on a
This is
(4th
Fed. R.
discretionary decision is
usually
line
with
this
virtually
unbroken
skein
of
afford a
defendant
of allocution
by
either
the
right
conferred
Rule
So it is here.6
____________________