USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 97-1051

UNITED STATES OF AMERICA,

Appellee,

v.

JOS

A. MARRERO-RIVERA,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge]

___________________

____________________

Before

Selya, Circuit Judge,

_____________

Cyr, Senior Circuit Judge,

____________________

and Keeton,* District Judge.

______________

____________________

Linda Backiel for appellant.

_____________

W. Stephen Muldrow, Assistant United States Attorney, with who

__________________
Guillermo Gil, United States Attorney, Jos

A. Quiles-Espinosa, Sen

_____________

_______________________

Litigation Counsel, Edwin O. V zquez, Deputy Chief, Criminal Divisi

________________

and Nelson P rez-Sosa, Assistant United States Attorney, were on br

_________________
for appellee.

____________________

September 8, 1997
____________________

____________________

*Of the District of Massachusetts, sitting by designation.

CYR, Senior Circuit Judge.

CYR, Senior Circuit Judge.
_____________________

Rivera

("Marrero") contends

Appellant Jos

that the

district

A. Marrero

court erred

in

denying his motion to withdraw his guilty plea, see Fed. R. Crim.
___

P. 32(e), and miscalculated the

was

held criminally

quantity of cocaine for which he

responsible at

sentencing.

We

affirm the

district court judgment.

I
I

BACKGROUND
BACKGROUND
__________

Appellant

"cafeter a,"

After

Marrero,

employed

one

owner

Jes s

unwittingly negotiating with

confidential informant,

and

operator

Flette

Hidalgo

of

("Flette").1

undercover DEA agents

Flette agreed

to supply

small

them with

and a

ten

kilograms of

cocaine, then

beeper stating

later

box

that "ten jet

transmitted a

message to

Marrero's

skis" should be prepared.

Flette

emerged from the Marrero business establishment carrying a

containing one

kilogram of

Marrero was arrested in possession

cocaine.

Shortly

thereafter,

of the beeper to which Flette

had transmitted the "ten jet skis" message.2

Marrero

charge

initially entered a

of conspiring

with

Flette to

"not guilty" plea

possess,

to the

with intent

to

____________________

1The record is silent as to the work Flette was required to

perform for Marrero.

2The government contended that the one kilogram contained in

the box was a

sample, intended to demonstrate the quality of the

ten kilograms to be supplied.

Three months after
that he had not

pleading guilty, Marrero

known what was in

first asserted

the box which he left

at the

cafeteria for Flette following his

receipt of the "ten jet skis"

message on the beeper.

distribute, ten kilograms of cocaine in violation of 21 U.S.C.

841(a)(1), 846.

Thereafter, Marrero's lead counsel, Jos

Aguayo,

Esquire, advised that a plea agreement would be in Marrero's best

interests and tried to persuade him

to plead guilty.

Later,

on

July 19, 1996, confronted with a 5:00 p.m. deadline for informing

the

government

consulting

whether

he would

change

his

plea, and

after

with a second attorney, Marrero ultimately decided to

plead guilty.3

A.
A.

The Rule 11 Hearing

The Rule 11 Hearing
___________________

On July

22, 1996,

plea agreement and

Rule 11 hearing.

Marrero pled

guilty pursuant

the district court conducted

See Fed. R.
___

Crim. P. 11.

to a

a comprehensive

The court

inquired,

inter alia, into Marrero's educational and employment background.

_____ ____

Marrero stated that he had

read, signed, and understood the plea

agreement, after discussing it with counsel.

edged

that he

tation, that he

was satisfied

with

He further acknowl-

Attorney Aguayo's

understood the indictment discussed

represen-

with him by

counsel,4 and that he understood his legal rights as explained by

____________________

3Even
remained

after meeting with both counsel, however, Marrero had

determined to proceed to trial.

p.m., Marrero and

while

Aguayo went to a

a potential

defense

At around 3:30 or 4:00

local bar for about

witness

decided

whether

an hour
he

would

testify without a subpoena.

4Count

1 alleged that

Marrero and Flette

_______ ___ ______

"did unlawfully,
___ __________

willfully, and intentionally combine, conspire, confederate,

agree together
_____ ________
United

States,

attempting
__________

to
__

wit:
___

to possess
__ _______

amounts, that
narcotic

with each other,

____ ____ _____

drug

to commit offenses
__ ______ ________

willfully,
__________

with intent to
____ ______ __

is, ten (10)

___ __
controlled

knowingly
_________

and
___

against the

unlawfully
__________

distribute multi-kilogram
__________

kilograms of cocaine, a
_________ __ _______
substance,

and

that
____

is,
__

schedule II

conspiracy
__________

to
__

violate Section 841(a)(1) of Title 21, United States Code.

_______ _______ _________ __ _____ __ ______ ______ ____
All

in violation of

Title 21, United

______

States Code, Section

______ _____ _______

the court.

The

district court then went through the indictment in

abbreviated fashion.5 Marrero acknowledged that he understood the

potential penalties attending the conspiracy charge and explicit___ _________

ly agreed
__ ______

that he was criminally responsible for conspiring with

____ __ ___ __________ ___________ ___ __________ ____

Flette to
______ __

distribute ten kilograms

__________ ___ _________

court that he

of cocaine.
__ _______

had not been coerced or

guilty; that he had read

He

assured the

intimidated into pleading

and signed the "Government's Version of

the Facts" appended to the plea agreement, and, after

discussing

it with Attorney Aguayo, acknowledged that the actual events were

as recited by the government.

The prosecutor then described the factual predicate for

the

guilty plea, including

the meeting

undercover agents, at which it

between Flette

and the

was "agreed that Jesus Flette and

persons working with him would provide 10 kilograms of cocaine to

____________________

846."
___
(Emphasis added.)

5The

Rule 11

colloquy regarding

the

indictment proceeded

essentially as follows:

[Court]:

"Now, in

Paragraph

1 of

the plea

agreement, you agree to plead guilty to Count

One of the

indictment, charging a

violation

of

Title

841(a)(1).

21,

U.S.

Code, Section

846

and

Is that so?"

[Marrero]: "Yes, sir."

[Court]: "And

Count

One

charges

you

with

conspiring with others to unlawfully attempting

[sic]

distribute
kilograms

to

possess

with

multi-kilograms,
of

cocaine

conspiracy

to violate

Title 21.

Is that so?"

intent

to

is,

10

that
.

that

is,

Section 841(a)(1)

a
of

[Marrero]: "Yes, sir."

the

undercover DEA

agents."

The prosecutor

stated that

"[a]

beeper message was

sent to a pager company,

ten jet skis should be

Further,

indicating that the

prepared because the buyers were ready."6

the prosecutor

described how

Flette

had entered

the

Marrero cafeteria and left with the box of cocaine, and how, when

arrested, Marrero was

skis" message from

that

Flette

would

carrying the beeper

Flette.

Finally, the

establish that

bearing the "ten

jet

prosecutor represented

Marrero

had

"willingly and

knowingly conspired with Jesus Flette and others to distribute 10

kilograms of cocaine and in

of cocaine."

version of the

The district

fact did distribute the one kilogram

At this point, Marrero agreed with the government's

relevant events as

court accepted

described by the

the guilty

plea after

that it was voluntary, knowing, and intelligent.

prosecutor.

determining

B.
B.

The Rule 32(e) Hearing

The Rule 32(e) Hearing
______________________

Shortly after the

presentence-investigation interview,

and some three months after the Rule 11 hearing, Marrero moved to

withdraw the

that it

sense

guilty plea, see

___

was:

Fed. R. Crim. P.

(1) involuntary, in

that he

32(e), claiming

had succumbed

to a

of helplessness and futility when confronted with Attorney

Aguayo's

advice

outweighed

that

the risks of

the

benefits

of

the

conviction at trial;

plea

agreement

(2) not "intelli-

____________________

6The

Government's Version of the Facts described the beeper

message as: "Jesus Flete then sent a message

to be
Rivera.

forwarded to
That

the defendant,

message stated that the ten

to the ten kilos of

in original).

the beeper of

to a beeper service

Jose Marrero-

'jet skis' (referring

cocaine) should be prepared." (parenthetical

gently"

made,

assumptions,

because he

as it

been

including that he

had received and

Flette,

even though he
____ ______ __

what was
____ ___

in the box;
__ ___ ___

delegated

had

premised on

was guilty of

several

conspiracy simply

retained the box for

had no
___ __

incorrect

his employee,

contemporaneous knowledge
_______________ _________

(3) not "knowingly"

made, in that

as to
__ __

he had

to counsel the responsibility for reviewing and inter-

preting the plea

agreement, and thought that once

to change his plea he would

_____

he had agreed

have to sign the plea agreement

____ __

and

provide affirmative responses during the change-of-plea colloquy;

(4) not adequately

Facts, or

the prosecutor's summary

because there was

the box

supported by the Government's

he had

during the Rule

no demonstration that

held in

his hands

Version of the

11 hearing,

Marrero had known

contained cocaine;

that

and (5),

predicated on an inadequate Rule 11 inquiry, in that the district

court

neither

asked,

nor

determined,

whether

Marrero

had

understood the mens rea element for the crime of conspiracy.

____ ___

At

the ensuing

testified that he

but did

Rule

32(e)

had explained the

not coerce him to sign it.

hearing, Attorney

plea agreement to

Aguayo

Marrero,

Upon inquiry by the district

court, as

charges"

government

to whether Aguayo

and

"the

had

to

issue

prove

had "explain[ed] the nature

about

his

knowing

conspiracy," Aguayo replied that he

the

had done so and that

very clearly that . . . in

to accept a plea

of guilty there had

it."

Marrero

responded by

in

the

the

he had

order for the Court

to be a basis in

introducing notes,

requirement

participation

"explained . . .

of the

used by

fact for

Aguayo

during

their

admission as

business

change-of-plea

follows:

and left

conference,

"What

I did

package

describing

. . .

for Jesus

Marrero's

A person came

Flette.

The

to my

package

contained cocaine."

The district court found a sufficient factual predicate

for

the guilty

Version of

plea,

citing

the Facts,

explicitly noted that

__________ _____

the true

the

of cocaine.

and which

from Flette to

See supra note

___ _____

mean that Marrero

purport of the

Government's

had agreed

the "ten jet skis" message

construed this to

not only

particular

with which Marrero

Marrero meant ten kilograms

court

in

6.

The

thereby acknowledged

beeper message,

but admitted

that he had so understood the message at the time he received it.

Further,

the

adequate to

understood

court

considered

support a

its

earlier

reliable determination

Rule

11

inquiry

that Marrero

had

the conspiracy indictment and the plea agreement, and

expressly

had

conspiring

to

agreed

that he

sell ten

was

kilograms

criminally

of

responsible for

cocaine.

Finally,

the

district court found nothing, either in the plea agreement or the

Rule

11 hearing

transcript,

Marrero had not understood

11 hearing.

which

what he was admitting to

finding

that

at the Rule

Accordingly, the district court denied the motion to

withdraw the guilty plea.

II
II

DISCUSSION
DISCUSSION
__________

A.
A.

warranted

Plea Withdrawal Before Sentencing

Plea Withdrawal Before Sentencing
_________________________________

1.
1.

Legal Framework
Legal Framework
_______________

We begin with bedrock principles.

right to withdraw a guilty plea

States v. Pellerito,
______
_________

denied, 502 U.S.

There is no absolute

prior to sentencing.

878 F.2d 1535, 1537 (1st

862 (1991).

See United
___ ______

Cir. 1989), cert.

_____

Rather, a defendant may be allowed

______

to withdraw a guilty plea before sentencing

just reason."

See
___

United States v.
_____________

only for a "fair and

Cotal-Crispo, 47 F.3d 1,
____________

(1st Cir.), cert. denied, 116 S. Ct. 94 (1995); see also

_____ ______
___ ____

Fed. R.

Crim. P. 32(e) ("the court may permit the plea to be withdrawn if

the

defendant shows any fair

persuasion rests with

and just reason").

the defendant.

The burden of

United States
_____________

F.3d 831, 834 (1st Cir. 1996); United States

_____________

v. Isom, 85
____

v. Parrilla-Tirado,
_______________

22 F.3d 368, 371 (1st Cir. 1994).

The

district court

must

consider several

factors in

determining whether the burden of

persuasion has been met by the

defendant,

the most

being

voluntary,

intelligent and knowing,

significant

whether

the

within the meaning

plea

was

of Rule

11.

Cotal-Crispo, 47
____________

F.3d at 3;

F.2d 1237, 1243 (1st Cir. 1991).

see pp. 22-25, include:

___

Other relevant

had reached,

Allard, 926
______

considerations,

(1) the plausibility and weight of

proffered reason; (2) the timing

defendant asserted legal

United States v.
_____________

of the request; (3) whether the

innocence; and (4) whether

or breached, a

the

plea agreement.

834; Cotal-Crispo, 47 F.3d at 4.

____________

the parties

Isom, 85
____

F.3d at

Finally, assuming the defendant

carries

the burden of persuasion on the aforementioned consider-

ations,

the

demonstrable

district

court

prejudice

to

must

the

weigh

government

in

the

balance

were the

any

defendant

allowed to withdraw the plea.

Isom, 85 F.3d at
____

835; Pellerito,
_________

878 F.2d at 1537.

At the outset, it is particularly important to note the

difficult

appellate terrain which

the present challenge

to the

district court's Rule 32(e) determination must traverse; that is,

the factfinding underlying the plea withdrawal

set

aside for

anything less

Pellerito, 878 F.2d at 1538

_________

than

ruling may not be

"clear error."

See,
___

e.g.,
____

("Confronted with an attempt at plea

retraction,

the

trial

particularistic, factbound

judge

plea,

Rule 11

and heard

at

make

assessment

facilitated because the judge has

conducted the

must

idiocratic,

an assessment

which is

overseen pretrial proceedings,

inquiries, accepted

first

an

hand the

the original

reasons

guilty

bearing upon

its

withdrawal.").

If the district court's

dence is

plausible

reviewed

in

its

appeals

may

not

account of the

in light
entirety,
reverse

convinced

that had

it been

trier

fact, it

would

of

evidence differently.
permissible
factfinder's

views

of the

of

the
it

evirecord

court

even

of

though

sitting as

the

have weighed

the

Where

there are

two

the

evidence,

the

them cannot

be

choice between

clearly erroneous.

Cumpiano v. Banco Santander Puerto Rico, 902 F.2d

________
____________________________

148, 152 (1st

Cir. 1990)

(citing Anderson v.
________

City of Bessemer City,

_____________________

564, 573-74 (1985) (bench trial findings))).

considerable

deference to

made

district court,

by the

demonstrable abuse of

the

Moreover, we accord

firsthand assessment

which

discretion.

must be

470 U.S.

ultimately

affirmed absent

See United States v. Sanchez___ _____________

________

Barreto, 93 F.3d 17, 23 (1st Cir. 1996), cert. denied, 117 S. Ct.
_______
_____ ______

711 (1997) (Rule 32(e) findings).

2.
2.

Core Rule 11 Concerns

Core Rule 11 Concerns
_____________________

We

concerns

first

were met.

inquire

Rule

whether

11

certain

was "intended

"core"

to

Rule

ensure that

11

defendant who pleads guilty does so with an 'understanding of the

nature of the charge and the consequences of his plea.'"

Cotal______

Crispo, 47 F.3d at 4 (quoting McCarthy v. United States, 394 U.S.

______
________
_____________

459, 467 (1969)); United States

_____________

(1st Cir. 1994); see

___

the

Rule 11

need to resort

also Fed. R. Crim. P.

____

hearing should

factors relevant

v. Medina-Silverio, 30 F.3d 1, 2
_______________

"produce a

to that determination

11(c).

Accordingly,

complete record

so as 'to

to a later factfinding proceeding

of the

eliminate any

in this highly

subjective area.'"

Allard, 926
______

F.2d at 1244 (quoting

McCarthy,
________

394 U.S. at 469).7

that

total failure to address any "core concern" mandates

_____
___

a guilty

plea be set

United States v. Gray,

_____________
____

Silverio,
________

30 F.3d

aside.

63 F.3d 57,

at 3.

See Isom,
___ ____

85 F.3d

at 835;

60 (1st Cir. 1995);

Medina_______

Otherwise, we

consider whether

any

particular defect in the Rule 11 hearing affected the defendant's

"substantial

rights."

United States v.
_____________

1995)

(Rule 11(h)

See id.; Fed. R. Crim. P. 11(h); see also

___ ___
___ ____

Martinez-Martinez, 69 F.3d 1215, 1219 (1st Cir.

_________________

"harmless

technical violations"),

error"

cert. denied,
_____ ______

rule

excuses

116 S.

"minor

Ct. 1343

and

(1996);

____________________

7We

have identified

voluntariness
the charge; and
plea.

three "core"

Rule

11 concerns:

(1)

i.e., absence of coercion; (2) understanding of

____
(3) knowledge of the consequences

of the guilty

See Medina-Silverio, 30 F.3d at 2.

___ _______________

10

United States v.
______________

Raineri, 42
_______

(harmless

analysis

error

influenced decisionmaker or

F.3d

usually

36, 41-42

looks

to

(1st Cir.

1994)

whether

error

ultimate outcome, but these

are not

only proper considerations under Rule 11(h); "substantial rights"

not violated where defendant was not properly informed of maximum

penalty but received lesser sentence than maximum), cert. denied,

_____ ______

515

U.S. 1126 (1995).

failure

to address a

circumstances

In determining

core Rule 11

whether there was a total

concern, we

review all "the

surrounding the Rule 11 hearing . . . [with a view

to determining]

what was

communicated by

what should
____ ______

reasonably have
__________ ____

rather than

the form

of the

the trial

been understood
____ __________

by the
__ ___

communication."

court, and

defendant,
_________

Cotal-Crispo,
____________

47

F.3d at 4-5 (citations omitted) (emphasis added).

(a)
(a)

Voluntary Plea
Voluntary Plea
______________

Marrero

maintains

that

Aguayo

pressured

him

into

accepting

the plea

Marrero was still

before

vivid

the

last minute,

even though

"inclined to go to trial" within an hour or so

the deadline

picture:

usual,"

agreement at

for changing

his plea.

"definitely anxious

waiting at

a local

bar,

. .

with his

Marrero

paints a

more anxious

attorney, to

than

learn

whether or not a potential witness would agree to testify without

a subpoena, before deciding at the eleventh hour to accede to his

attorney's

the

importunings to accept

government.8

Furthermore,

the plea bargain

as

he did

at

tendered by

the Rule

32(e)

____________________

8During
waiting at the
Marrero did.

the Rule 32(e) hearing, Aguayo testified that while

bar he had a

beer, but could not

recall whether

As Marrero has not alleged that he had

11

anything to

hearing,

Marrero

prospective

the

contends

that

Aguayo's

description

of

the

sentence was overly rosy,9 whereas his estimation of

prospects for

Notwithstanding

success at

trial

was unduly

Marrero's resourceful

pessimistic.10

challenge,

there was

no

clear error or abuse of discretion in the finding that the guilty

plea was voluntary.

At

appropriately

the

Rule

inquired

11

whether

hearing,

the

Marrero was

district

acting

court

freely and

whether

anyone had

reassured

freely

coerced him into

the district

and that

no

court under

one had

oath that

attempted to

corroborated these representations.

responses

were reasonably

"[i]t

the policy

is

assurances."

States v.
______

(statements

of

the law

Martinez-Molina,
_______________

the

to

hold

22 F.3d at

64 F.3d

hearing

he was

Marrero

pleading

coerce him.

Aguayo

Accordingly, Marrero's sworn

credited by

Parrilla-Tirado,
_______________

at plea

pleading guilty.

litigants to

373; see also

___ ____

719,

"carry

district court,

733 (1st

strong

as

their

United
______

Cir.

1995)

presumption

of

verity" (quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977))).

__________
_______
____________________

drink, however,

there is

no suggestion in

the record

that the

guilty plea was rendered involuntary in this regard.

9For example,

Marrero points

to

Aguayo's suggestion

that

there was

a "drug

program" pursuant to

which Marrero

able to reduce his sentence by a year, that he would

might be

be eligible

for "good-time" credits, and that he could spend the final 10% of
his prison stay in a half-way house.

10Marrero also faults

Aguayo's failure to

possible

defense (i.e., that

____

rea
___

conspiracy), and

for

for

Marrero lacked the

failing

to

advise him of

requisite mens
____

mention either

the

possibility that Flette's testimony might be vulnerable on crossexamination

or that certain favorable jury instructions might be

given.

12

Moreover,

Marrero's

belated

representation

that

he

believed he had to answer all questions in the affirmative during

___ __

the Rule

11 colloquy

virtually

displacing

cannot be credited,

the

"clear

governing the appellate inquiry.

F.2d

75,

80 (1st

Cir. 1984)

error"

on its
__ ___

face, without
____

standard

of

review

Cf. United States v. Butt, 731

___ _____________
____

(even where

appellant represents

that, upon advice of counsel, he uttered false statements at Rule

11 hearing,

contrary

counsel

those statements

will be

presumed true

unless the

allegations state a claim for ineffective assistance of

and include credible,

valid grounds for

departing from

the normal presumption).

Similarly,

there

Marrero acted involuntarily.

is

no

affirmative

evidence

that

Consequently, even assuming counsel

persuaded

him that

interests,

945 F.2d

strong urging'

plea

See Miles
___ _____

1995), cert.
_____

Chrans,
______

guilty plea

the resultant

"involuntary."

Cir.

would

S. Ct.

(7th

by counsel does

(quoting Lunz v. Henderson, 533

____
_________

best serve

not

v. Dorsey, 61
______

denied, 116
______

926, 933

would

have

been

F.3d 1459,

743 (1996);

Cir. 1991)

Marrero's

rendered

1470 (10th

Williams v.
________

("'Advice

not invalidate a

even

guilty plea.")

F.2d 1322, 1327 (2d Cir.), cert.

_____

denied, 429 U.S. 489 (1976)), cert. denied, 502 U.S. 1208 (1992).
______
_____ ______

Nor can the mere fact that Marrero and counsel may have

undervalued the merit of any potential defense render the Rule 11

plea involuntary.

981

(1st Cir.

See United States v. Muriel, 111

___ ______________
______

1997) ("This

court

has not

F.3d. 975,

allowed defendants,

absent coercion or

mistake, to renege on plea

agreements on the

13

basis that

have

they have miscalculated

belatedly

discovered

determining

whether

defendants,

with the

merit

of their

to

new

arrive at

assistance of

defenses with

their risks and

defense.").

plea

benefits or

Rather,

in

agreement, criminal

counsel,

the strength of

must compare

the

the government's

case, as well as the penalties likely to be imposed pursuant to a

plea

agreement

or following

trial.

Were

it otherwise,

belatedly-realized mistakes

in their

pre-plea assessments

deemed

more, to

warrant plea

sufficient, without

and

were

withdrawals,

"plea agreements and the pleas entered pursuant to them [would be

rendered] meaningless."

Allard, 926 F.2d at 1243.

______

Often the decision to plead guilty is heavily

influenced

by the

defendant's appraisal

of

the prosecution's case against him and by the

apparent

likelihood

of

securing

leniency

should a guilty plea be offered and accepted.

Considerations like these

frequently present

imponderable questions for which there are no

certain answers;
in

the

judgments may be

light

of

improvident,

although

sensible at

the time. .

not

entitled

to

later
they

events
were

. . A

withdraw his

because he discovers long after

been

accepted

that his

made that
seem

perfectly

defendant is
plea

merely

the plea has

calculus

misappre-

hended the quality of the State's case or the

likely

penalties

attached

to

alternative

courses of action.

Brady v. United States, 397 U.S. 742, 756-57 (1970).

_____
_____________

Finally, the strategic decision to plead guilty was not

rendered

involuntary

confronting

found himself

Marrero.

by

The

is common

exceptional enough

the

anxieties

and

unenviable position in

among criminal

to evince

pressures

which Marrero

defendants, and

an overbearing of

14

time

his will

hardly

or to

have

precluded a rational

assessment of the

available options.

See id. at 750 (no evidence

___ ___

defendant was so gripped by fear

of

possible

to

weighing

of

of guilty plea); Dorsey,

______

61

death penalty

as

preclude

advantages of trial with advantages

F.3d

at 1470 ("Although

rational

deadlines, mental

anguish, depression,

and stress are inevitable hallmarks of pretrial plea discussions,

such

factors

considered

establish that

878

F.2d

experiences

question for

individually or

petitioner's plea was

at

1541

for

("Criminal

nearly all

aggregate

. . .

do not

involuntary."); Pellerito,
_________

prosecutions

concerned

plea withdrawal is

in

are

. .

whether the

stressful

The

relevant

decision to

plead was voluntary, i.e., a product of free will.").

____

(b)
(b)

Knowing and Intelligent Plea

Knowing and Intelligent Plea
____________________________

The main focus

the second core

was

he

concern is that Marrero did

informed

about,

conspiracy charge

prove he

knew, at

contained

ten

the

mens
____

rea
___

in relation to

not understand, nor

requirement

viz. that the government had

____

the time,

that the

cocaine and constituted

kilograms to

related

of the Rule 32(e) claim

be

the

to be able to

left for

Flette

a one-kilogram sample

of the

delivered to

contention, Marrero insists

box he

for

the

buyers.

that there was

In

a closely

no adequate

factual predicate for the guilty plea since he simply admitted to

_______

having

knowingly

held the

box

for

Flette

and that

the

box

contained cocaine, but that he did not

know, at the time he held

__ ___ ____ __ ____

the box, that it contained cocaine.

___ ___

There

was no

"clear

error"

in

the

district

court

15

finding

that

conspiracy

Marrero

understood

charge at the Rule 11

the

nature

hearing.

of

the

cocaine

Marrero acknowledged

under

oath

that

understood

he

had

read,

the indictment.

discussed

He endorsed the

with

counsel,

factual summary of

the offense given by the government at the Rule 11 hearing.

the indictment and the government's version

referred

to

the

requisite

conspiracy offense.11

mens
____

rea
___

for

and

Both

of the facts plainly

conviction

Thus, Marrero was explicitly

__________

of

the

informed of

the mens rea requirement for the conspiracy charge.12

____ ___

Nor are we

undone by

unmindful that Marrero claims

the nuances of

might not be expected to

what he

conspiracy law.

while a

layman

understand, ab initio at least, exactly

__ ______

need have known to

there can have

But

to have been

be found culpable as

been little question as

a conspirator,

to the point in

time by
__

which the requisite

_____

to

wit, before

any,

the defendant's

terminated.

raises

culpable knowledge need have

In

conspiratorial involvement,

truth then,

concerning whether his

been acquired;
________

the

contention Marrero

guilty plea was

if

now

"intelligent" is

____________________

11The

indictment,

see supra
___ _____

note

4,

was

replete

with

language

affording Marrero notice of the requisite knowledge and

intent.

See
___

summary of

also
____

supra note
_____

the facts,

see supra pp.

___ _____

testimony would establish that

conspired"

5.

with Flette to

Moreover,the

prosecutor's

4-5, stated

that Flette's

Marrero "willingly and

distribute ten kilograms

knowingly

of cocaine,

and did distribute one kilogram.

12The
adult

record evidence further

male, age 37,

become a commercial

who completed
airline pilot.

reflects that Marrero

is an

high school

on to

and went

At the time of

his arrest,

Marrero owned and operated his own small cafeteria business.

district court

found that Marrero

Rule 11 proceedings.

was alert and

The

understood the

16

not, as he would have it, dependent upon his understanding of the

intricacies

universal

of conspiracy

understanding

law, but

that

one

on

the commonsense,

cannot

be

held

near-

criminally

responsible for agreeing to cooperate with another in effecting a

lawful enterprise.
______

that Marrero pled

Thus, the upshot of the present contention is

guilty to a felony cocaine

charge, carrying a

potential life-imprisonment term,

knowing all the while

that he

had never agreed to distribute cocaine.

At bottom, therefore,

error is the

what Marrero points to

district court finding

the Rule 32(e)

hearing

sell ten kilograms

as clear

both at the Rule

that Marrero conspired

11 and

with Flette to

of cocaine, knowing that the

object of their

agreement was unlawful.

________

Even so, it was not

essential that the

evidence establish that

Marrero knew the box

contained cocaine.

Rather, it was only necessary to establish an evidentiary founda-

tion upon

which the

Marrero and

cocaine.

1311

district court reasonably

Flette knowingly agreed

See, e.g., United States v.

___ ____ _____________

(1st Cir.)

(although

defendant

could find

to supply ten

that

kilograms of

De La Cruz, 996 F.2d 1307,

__________

never

saw

or

possessed

cocaine, and

there was no

direct evidence that

he knew of

existence, a combination of circumstantial factors

scene,

suspicious

conduct,

possession of cellular

inference

that scienter

cert. denied,
_____ ______

considerations

510

U.S.

subordination

phone and beeper

elements of

936

(1993).

to

presence at

drug

allowed

the

leader,

jury to draw

conspiracy were

Among

its

present),

evidentiary

which sufficed, in combination, to support such a

17

showing,

hearing

were Marrero's

that he

had

repeated

conspired with

kilograms of cocaine; the

and Flette;

the beeper

Flette

to

"ten

representations;

and

Flette

at

the

Rule

to distribute

11

ten

employer-employee relationship between

Marrero

prepare

admissions
__________

message

jet

skis";

the kilogram of

Marrero's acknowledgement

Marrero received

the

government

cocaine seized by

agents'

the agents;

that the government's

the facts, see supra pp. 4-5, was correct.

___ _____

from

version of

Furthermore, although

it is conceivable that Marrero did not know the box contained co-

caine, there is no dispute that it did contain cocaine.

___

Therefore, given the undisputed physical evidence,

Marrero's

admission

that

he

did

conspire

with

Flette

and

to

distribute

ten

kilograms

of

cocaine,

the

district

court's

findings, both at the Rule 11 hearing and the Rule 32(e) hearing,

were not only entirely plausible, but far more plausible than the

scenario belatedly suggested

by Marrero, even assuming

knew the box contained cocaine.

he never

See Sanchez-Barreto, 93 F.3d at

___ _______________

23; Cumpiano, 902 F.2d at 152.

________

The effort to

box contained

First,

contrary

Marrero

establish that Marrero did

cocaine is

must

impeded by

persuade

assessment constituted

Sanchez-Barreto, 93
_______________

senting at the

F.3d at 23.

us

two additional

that

an abuse

the

of

not know the

obstacles.

district

court's

discretion.

See
___

Second, after repeatedly repre-

Rule 11 hearing that he did

___

conspire with Flette

to distribute ten

present contention

kilograms of cocaine, the plausibility

is

seriously diminished

by

his

of his

continuing

18

failure,

theory

even at

upon which

this late

it

date,

might be

to attempt

to articulate

determined, given

the evidence

relied upon by the government at the Rule 11 hearing, that he did

not conspire with

___

Flette.

Thus, whether or not Marrero knew the

box contained cocaine

was ample basis

at the time he

for the

left it for Flette,

district court

rationally to

there

conclude

that he did, as well as an abundant evidentiary foundation at the

Rule 11

hearing for

finding the

"knowing," especially

in light

guilty plea

of Marrero's

"intelligent" and

assurances to

the

district court that he had discussed the nature of the conspiracy

charge

with Aguayo

and

understood

it.

On

this record,

district court's firsthand assessment that Marrero's

was knowingly and intelligently made did not

of discretion.

guilty plea

constitute an abuse

See id.
___ ___

Finally,

discern

the

after

reviewing

the entire

record,

we can

nothing that might have indicated to the district court,

in any way,

that Marrero either did not

understand, or had been

misinformed by counsel

charge

lodged

regarding, any element of

against him.

Rather,

the conspiracy

all responses

given

by

Marrero during the Rule 11 colloquy were entirely consistent with

a correct

and

comprehensive

charge and its elements.

that

nothing

in

understanding

the

See Isom, 85 F.3d at 833,

___ ____

record

indicated

that

understanding of charges); United States v.

_____________

314 (1st

of

Cir. 1987) (no doubts raised

conspiracy

836 (holding

defendant

lacked

Ramos, 810 F.2d 308,

_____

as to competence to plead

until plea-withdrawal motion); Marquis v. United States, 698 F.2d

_______
_____________

19

13,

16 (1st

plea was

Cir. 1983) (no

involuntary or

Gray, 63 F.3d
____

about

product of

of

guilty plea);

Dominicci, 50 F.3d 76, 79

_________

11 colloquy "should have

that, at

the

he was confused

United States
______________

v. Ribas______

(1st Cir. 1995) (responses during Rule

alerted the court that

time

the trousers

parties, he did not intend to commit a

Ruiz-Del Valle,

11 hearing that

misunderstanding); contrast
________

at 60 (defendant represented that

consequences

claiming

indication at Rule

8 F.3d 98,

were

[defendant] was

sold to

third

crime"); United States v.

_____________

103 (1st Cir. 1993)

(charge neither

______________

read nor explained, and defendant made statement that should have

put court on notice that she did not understand firearms charge);

United States v.
______________

(defendant

charge);

Valencia, 923
________

F.2d 917,

expressed confusion

Mack v.
____

United States,
_____________

1980) (where defendant

contradictory

Cir. 1991)

about jurisdictional

element of

635 F.2d

20, 24-25

stated first that he had

(1st Cir.

been coerced, a

statement that plea was voluntary could not simply

be accepted by district court

was not made

921 (1st

of his

own free

"Once Mack stated that the

will, the court

was required

plea

to

undertake a more searching inquiry." (citations omitted)).

(c)
(c)

Evidentiary Predicate For Guilty Plea

Evidentiary Predicate For Guilty Plea
_____________________________________

For similar reasons,

we reject the further

claim that

the factual predicate for the guilty plea was inadequate.

Marrero

conceded that

reasonable

doubt, that

the

government

he "willingly

could

prove,

and knowingly

First,

beyond

conspired"

with Flette and others to distribute ten kilograms of cocaine and

that they

actually distributed

one kilogram

to the

undercover

20

agents.

The district court

was entitled to credit

these sworn

judicial

admissions.

Parrilla-Tirado, 22 F.3d
_______________

at 373 ("[i]t is

the policy of the law to hold litigants to their assurances.").

The district court

that

Marrero had

government's

record further

the requisite

version

of

the

culpable

facts

supports a

state of

stated

that

finding

mind.

The

Marrero

had

received a beeper message to prepare "ten jet skis," specifically

____________

noting that "jet skis" meant

______ ____ ___ ____ _____

cocaine.
_______

Marrero explicitly stated

that he had read the government's version of the facts, discussed

it with counsel, and acknowledged its truth.

Marrero nonetheless contends on appeal

does

not indicate

that

he
__

rendition of "jet skis" (as

understood

that

that the record

the

government's

a code term for "cocaine") purported

to

describe

understood

there is

what

Marrero,

the term

no record

code, and denies

as

to mean.

In

distinguished

from

addition, he now

evidence that "jet

skis" was

having known that it meant

Flette,

notes that

a prearranged

anything other than

aquatic jet skis.

_______

The factual predicate for the requisite mens rea may be

____ ___

inferred from all the evidence alluded to at the Rule 11 hearing.

See United States

___ _____________

v. Japa, 994 F.2d 899, 903-04

____

(factual predicate for

ask during

mens rea met even though

____ ___

Rule 11 colloquy,

with regard to one

(1st Cir. 1993)

court failed to

count, whether

defendants had requisite intent, where intent reasonably could be

inferred

from their admission

count); Cotal-Crispo,
____________

of intent in

47 F.3d at

relation to another

4-5 ("What is critical

is the

21

substance of what

was communicated by the trial

should reasonably have

been understood by the

court, and what

defendant, rather

than the form of the communication.") (citations omitted).

Altogether aside

attempted to explain

from the

to us why he

message from Flette to prepare

fact that

Marrero has

would have received a

not

beeper

"ten jet skis," absent any record

indication

aquatic

plausible

or

contention that

"jet

skis,"

there

or otherwise,

have offered

either

is

no

as to why

he

or

Flette dealt

suggestion

from

the undercover

Flette $18,000 for each

in

Marrero,

agents would

"jet ski."13

More

to the

point, were we to postulate that the term "jet skis" did refer to

the

aquatic variety,

we would be

at a total

loss ourselves to

explain the uncontested fact that the box Flette delivered to the

undercover

that

agents contained

cocaine.

Accordingly,

we conclude

the district court reasonably found that Marrero understood

that the

beeper

message he

cocaine, particularly in

received

from Flette

light of Marrero's Rule

referred

to

11 admissions.

See, e.g., supra note 13.

___ ____ _____

Finally,

Marrero maintains that

he did not understand

the conspiracy charge and that

once he understood it he realized

____________________

13Marrero

explicitly acknowledged

Government's Version

clear error

understood,
message

time he
to

cocaine.

as an

message to Marrero

court's

received
In

which Marrero pled

plainly alleged,

beeper

at $18,000 each.

the district

at the

referred

indictment to
but

in

correctness of

of the Facts, which states

offered to buy "ten jet skis"

no

the

that the agents

Thus, there

finding that

it, that
addition,

skis"

of course,

Flette had

was

Marrero

the "jet

guilty did not speak

overt act, that

the

the

in code,

sent a

"providing instructions regarding the

sale of ten (10) kilograms of cocaine."

22

he was not guilty.

tion of innocence

See Parrilla-Tirado, 22 F.3d at

___ _______________

weighs in favor of withdrawal).

373 (asser-

He relies on

notes made by

Aguayo during their Rule 11 conference, indicating

that

had admitted

Marrero

contained cocaine.

that

Although

the

box

he left

Aguayo stated

at

for

Flette

the Rule

32(e)

hearing that he had explained to Marrero the nature of the charge

and that

there had to be a factual basis

asked to

explain precisely

factual basis.

We

how he

for it, Aguayo was not

had described

the requisite

See supra p. 6.
___ _____

cannot

permit

Marrero to

omission on direct appeal absent

exploit

this

putative

a fully developed record, as it

amounts to a Sixth Amendment "ineffective assistance" claim.

See

___

United States
______________

v.

(inadequate record

claim

Lopez-Pineda,
____________

precludes review of

on direct appeal;

denied, 116 S.
______

F.3d 771,

U.S.C.

55 F.3d

693,

collateral review remains

Cir. 1994)

(1st Cir.)

"ineffective assistance"

Ct. 259 (1995); United States

_____________

776 (1st

697

open), cert.
_____

v. Tuesta-Toro, 29
___________

(collateral proceeding

2255 is proper forum for fact-bound "ineffective

under 28

assis-

tance" claim, where record is insufficiently developed for direct

review), cert.
_____

States v.
______

Cir.

denied, 115
______

McDonald,
________ ___

August 20, 1997).

necessary

as the present

S. Ct. 947

F.3d

,
___

(1995); see
___

, 1997

also United
____ ______

WL 464957 * (1st

____

Further factual

development is plainly

claim implicitly presumes

________

that Aguayo

rendered

doubt

ineffective assistance.

that an "ineffective

Although there could be little

assistance" claim would

lie were it

made to appear that defense counsel failed to explain, prior to a

23

Rule 11

hearing, that

conspiracy

under 21

knowingly conspired to
_________

the defendant could

U.S.C.

841(a)(1),

not be

846,

distribute cocaine, we

convicted of

unless he

are not about

had

to

presume professional ineptitude on the part of counsel.

3.
3.

Other Relevant Factors

Other Relevant Factors
______________________

Since the district court conducted a comprehensive Rule

11 hearing

during which

satisfied with

and

Marrero repeatedly stated

Aguayo's representation,

the consequences

of his

having agreed with Flette to

as alleged

into

have

plea, freely

charges

acknowledged

and that he

the Rule

11 record

had not

been coerced

fully

supported the

court's determination that the guilty plea was knowing,

intelligent and

("We

understood the

was

distribute ten kilograms of cocaine

in the indictment

pleading guilty,

district

guilty

that he

found

withdrawals where

voluntary.

no abuse

See
___

of

Sanchez-Barreto, 93 F.3d
_______________

discretion

Rule 11 safeguards were

in disallowing

at 23

plea

scrupulously followed

by

the district

district

court

court."); Ramos,
_____

thoroughly

810

F.2d at

complied with

Rule

314 ("That

11

the

also weighs

heavily against appellant.").

Furthermore, the change

than

fourteen

principal

weeks after

ground on

of heart by Marrero

the

which the

essentially

that Aguayo had

and had not

explained to him

Rule

Rule

extended delay

hearing.

32(e) motion

pressured him into

that he need

object of the alleged conspiracy

think the

11

came more

Given

is based

pleading guilty

have known that

was to distribute cocaine

in seeking to

24

the

vacate the

the

we

guilty plea

likewise diminishes its plausibility.

the longer a defendant waits

"The rule of thumb is that

before moving to withdraw his plea,

the more potency his motion must have in order to

consideration."

Parrilla-Tirado,
_______________

e.g., Isom, 85 F.3d at

____ ____

47 F.3d at 8

long).

22 F.3d

at 373.

See
___

also,
____

839 (two months, too long); Cotal-Crispo,

____________

(same); Ramos, 810 F.2d at 313

_____

Although Marrero

legal representation

gain favorable

asserts that it

in Puerto

Rico in

(thirteen days, too

is difficult

August, and

to find

points out

that the

report

Rule 32(e)

and

Vazquez, 34
_______

motion was filed

sentencing,

contrast
________

F.3d 19, 22-23

prior to

the presentence

United States
______________

v.

(1st Cir. 1994) (defendant

Gonzalez_________

moved to

withdraw plea after presentence report suggested he would receive

a stiff sentence); Parrilla-Tirado, 22 F.3d at

_______________

other

considerations

alone

do not

warrant

373 (same), these

setting

district court's firsthand assessment that there

just reason

for allowing

Marrero to withdraw

aside the

was no fair and

his guilty

plea.

See Cotal-Crispo, 47 F.3d at 3.

___ ____________

B.
B.

Calculation of Drug Quantity

Calculation of Drug Quantity
____________________________

In another vein, Marrero challenges the finding that he

was

criminally responsible

for

ten kilograms

of cocaine.

He

contends that the

district court failed

to consider whether

he

had either the intent or the ability to distribute the negotiated

quantity

of cocaine

comment. (n.12)

that

kilograms.

(1995) ("If, however, the

he . . . did

capable of

ten

not intend to provide,

providing the agreed-upon

25

See U.S.S.G.
___

2D1.1,

defendant establishes
_________ ___________

or was not reasonably

quantity . . .,

the court

shall exclude from the offense

level determination the amount of

controlled substance that the defendant establishes that he . . .

did

not intend

to

provide

or was

providing.") (emphasis added).

even assuming he knew the

it was not

not

Marrero

reasonably capable

further maintains

sample for a ten-kilogram sale,

culpable for the

See U.S.S.G.
___

that

box contained one kilogram of cocaine,

"reasonably foreseeable" that the one

been found

of

kilogram was a

and therefore he should not have

total amount negotiated

by Flette.

1B1.3(a)(1)(B), comment. (n.2) (1995).

There can have

v. Miranda-Santiago,
________________

been no clear error,

96 F.3d

517, 524 (1st

see United States

___ _____________

Cir. 1996),

as the

district court correctly found that Marrero had admitted, both in

the plea

agreement and during the

Rule 11 hearing, that

he was

responsible

for

indictment.

See supra note 2.

___ _____

to credit these

ten

kilograms of

cocaine

as

charged

The district court was

sworn admissions.

in the

entitled

See Parrilla-Tirado,
___ _______________

22 F.3d

at 373; Martinez-Molina, 64 F.3d at 733; Carter, 815 F.2d at 829;

_______________
______

Butt, 731 F.2d at 80.

____

Finally,

produce, or

was

the

not

claim

capable

that Marrero

of producing,

did

ten

not

intend to

kilograms

of

cocaine, fails as well, since there was no attempt to demonstrate

that he and Flette were

amount agreed

not reasonably capable of delivering the

upon with the

2D1.1 comment. (n.12) (1995).

undercover agents.

See
___

U.S.S.G.

Accordingly, Marrero's admissions

afforded ample support for the district court finding that he was

criminally responsible for ten kilograms.

26

III
III

CONCLUSION
CONCLUSION
__________

For the foregoing reasons,

the district court judgment

is affirmed, without prejudice to appellant's right

________

to renew the

ineffective assistance claim in a collateral proceeding.

27