January 5, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1724
UNITED STATES,
Appellee,
v.
JAMES T. MARSHALL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Cyr, Circuit Judge,
Bownes, Senior Circuit Judge, and
Stahl, Circuit Judge.
James T. Marshall on brief pro se.
Donald K. Stern, United States Attorney, and Mark W. Pearlstein,
Assistant United States Attorney, on brief for appellee.
Per Curiam. Defendant James Marshall appeals from
a district court order denying his motion under Fed. R. Crim.
P. 32(d) to withdraw his guilty plea. For the reasons that
follow, we affirm.
I.
Defendant was indicted on a single count of being a
felon in possession of a firearm--a charge that, due to his
lengthy criminal history, subjected him upon conviction to a
15-year mandatory minimum term of imprisonment. See 18
U.S.C. 922(g), 924(e). Defendant was ordered detained
pending trial. Nine months later (following the discovery
that defendant was afflicted with the HIV virus), the
government and defendant reached a plea agreement providing
in part as follows: (1) defendant would plead guilty and
would assist the government in related criminal
investigations; (2) the government would recommend that he be
released pending sentencing; and (3) in the event that
defendant's cooperation (in the government's judgment)
constituted substantial assistance, the government would file
a motion under U.S.S.G. 5K1.1 for downward departure and
would recommend no further imprisonment. On June 24, 1993,
following a careful Rule 11 colloquy, the district court
accepted defendant's guilty plea and adopted the plea
agreement. Defendant was released on bail six days later.
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Defendant failed to assist the government as promised--
despite being afforded numerous opportunities to do so, and
despite being specifically warned on several occasions that
he would lose the benefits of a 5K1.1 motion if his lack of
cooperation persisted. Accordingly, on March 28, 1994, three
days before sentencing was to occur, the government announced
that it would decline to move for a downward departure. The
court ended up postponing sentencing for several weeks to
enable defendant to review the presentence report, but it did
revoke bail on March 31 because of the mandatory sentence he
was then facing.
Six days later, defendant filed a pro se motion to
withdraw his plea, arguing that his counsel had provided
ineffective assistance in advising him to plead guilty. His
sole contention in this regard was that counsel, by failing
to review his file, had overlooked and otherwise failed to
pursue a viable justification defense. The court addressed
this motion on April 21 at the outset of the sentencing
hearing. In response to inquiries from the court, defendant
acknowledged that he and counsel had discussed a possible
justification defense prior to the change of plea, with the
latter advising him that it was unlikely to succeed. Counsel
confirmed this version of events, telling the court that a
justification defense had struck him as "thin" based on "the
documents provided"; he added, however, that the final choice
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to plead guilty had been made by his client. The court found
that defendant had adduced no "fair and just reason" to
withdraw his plea, as required by Rule 32(d). It noted that,
far from having been ineffective, counsel had acted
responsibly by abandoning the "challenging" justification
defense and negotiating a "highly favorable" plea agreement.
The court denied the motion to withdraw and thereafter
imposed the 15-year mandatory sentence. Defendant now
appeals on a pro se basis.
II.
Defendant's challenge to the court's Rule 32(d) decision
requires little comment. We review such a ruling for abuse
of discretion. See, e.g., United States v. Gonzalez-Vazquez,
34 F.3d 19, 22 (1st Cir. 1994). As explained in United
States v. Parrilla-Tirado, 22 F.3d 368 (1st Cir. 1994), the
exercise of discretion in this context depends on the
"overall situation" and rests "most prominently" on four
factors: (1) the plausibility of the reasons prompting the
requested change of plea; (2) the timing of the motion; (3)
the existence or nonexistence of an assertion of innocence;
and (4) whether the plea may appropriately be regarded as
involuntary, in derogation of the requirements of Rule 11, or
otherwise legally suspect.1 Id. at 371; accord, e.g.,
1. If the balance of these factors weighs in the defendant's
favor, the court must also consider "any demonstrable
prejudice that will accrue to the government." Parrilla-
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United States v. De Alba Pagan, 33 F.3d 125, 127 (1st Cir.
1994).
In reverse order, we note that defendant has advanced no
challenge to the adequacy of the Rule 11 hearing. See, e.g.,
United States v. Austin, 948 F.2d 783, 787 (1st Cir. 1991)
("we have repeatedly found no abuse of discretion in denial
of [Rule] 32(d) motions where Rule 11 procedures were
assiduously followed"). Defendant's justification defense is
consistent with an assertion of innocence but, as noted
infra, is of dubious merit. The timing of the motion alone
would constitute a sufficient basis for denial under the
circumstances: the fact that it was filed over nine months
after the guilty plea, and only after the pronouncement that
defendant was again facing a mandatory 15-year sentence,
"cast[s] a long shadow over the legitimacy of his professed
reasons for seeking to change course."2 Parrilla-Tirado, 22
F.3d at 373; accord, e.g., United States v. Gonzalez, 970
F.2d 1095, 1100 (2d Cir. 1992) (fact that defendant filed
32(d) motion "only after he learned that the Government would
not move for a downward departure" undercuts its
plausibility).
Tirado, 22 F.3d at 371.
2. Defendant has, at no time, questioned the propriety of
the government's refusal to file a 5K1.1 motion.
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Finally, the justification defense now touted by
defendant was properly described as "thin" by defense
counsel.3 Even if it had been of somewhat greater heft,
counsel's advice to abandon such a tactic in favor of a plea
agreement affording defendant the opportunity to avoid a 15-
year prison term can hardly be thought unreasonable. And
during the Rule 11 colloquy defendant had pronounced himself
satisfied with counsel's performance. Given these factors,
the district court cannot be said to have abused its
discretion in finding no "fair and just reason" for a
withdrawal of defendant's plea.
3. Defendant claims that he was victim rather than culprit--
i.e., that he encountered two armed, unidentified men at the
door to his apartment; that a struggle ensued, during which
he managed to gain possession of one of their guns; and that
he then knocked on the doors of several adjacent apartments
screaming for help. In support, he points to the transcripts
of various "911" calls made by his neighbors over an eight-
minute span. Several of these callers reported spotting
(through their peepholes) a man in the hallway brandishing a
gun, and hearing him "yelling for help" and "saying someone's
trying to kill him."
None of these callers, however, mentioned seeing the two
alleged intruders. More important, other evidence suggested
that defendant failed to get rid of the firearm as soon as a
safe opportunity arose--an essential element of a
justification defense. See, e.g., United States v. Smith,
982 F.2d 681, 685 (1st Cir. 1993). When two police officers
arrived at the scene (in plainclothes, with police badges
around their necks) and drew their guns, defendant pointed
the handgun at them from ten feet away. The officers
identified themselves and demanded that he drop the gun, and
he did so. But as they approached him, defendant "lunged"
for the gun (as he acknowledged at the Rule 11 hearing),
thereby causing a lengthy struggle.
There was also considerable hearsay evidence, we note,
suggesting that defendant was under the influence of drugs at
the time of the incident.
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III.
Nor do we find merit in defendant's collateral claim
that he was denied his Sixth Amendment right to counsel
during the course of the Rule 32(d) hearing. This is not a
case like United States v. Ellison, 798 F.2d 1102, 1106-09
(7th Cir. 1986), cert. denied, 479 U.S. 1038 (1987), in which
a defendant's allegation of specific misconduct on the part
of his attorney, and the latter's denial thereof, created a
palpable conflict. As mentioned, in response to the court's
questioning here, defendant and counsel agreed on the
pertinent factual issues. Where it can be determined (from
the face thereof or through preliminary inquiry) that a Rule
32(d) motion claiming ineffective assistance of counsel lacks
colorable merit, a court is under no obligation to conduct a
full-blown evidentiary hearing, see, e.g., United States v.
Ramos, 810 F.2d 308, 314 (1st Cir. 1987), or to secure
substitute counsel, see, e.g., United States v. Trussel, 961
F.2d 685, 688-90 (7th Cir. 1992); United States v. Rhodes,
913 F.2d 839, 841-46 (10th Cir. 1990), cert. denied, 498 U.S.
1122 (1991); see also De Alba Pagan, 33 F.3d at 126-28.
Affirmed.
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