United States v. Marrero Rivera

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 whom

Guillermo Gil, United States Attorney, Jos A. Quiles-Espinosa, Senior

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

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

for appellee.

September 8, 1997

*Of the District of Massachusetts, sitting by designation.

CYR, Senior Circuit Judge. Appellant Jos A. Marrero
CYR, Senior Circuit Judge.

Rivera ("Marrero") contends that the district court erred in

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

P. 32(e), and miscalculated the quantity of cocaine for which he

was held criminally responsible at sentencing. We affirm the

district court judgment.

I
I

BACKGROUND
BACKGROUND

Appellant Marrero, owner and operator of a small

"cafeter a," employed one Jes s Flette Hidalgo ("Flette").1

After unwittingly negotiating with undercover DEA agents and a

confidential informant, Flette agreed to supply them with ten

kilograms of cocaine, then transmitted a message to Marrero's

beeper stating that "ten jet skis" should be prepared. Flette

later emerged from the Marrero business establishment carrying a

box containing one kilogram of cocaine. Shortly thereafter,

Marrero was arrested in possession of the beeper to which Flette

had transmitted the "ten jet skis" message.2

Marrero initially entered a "not guilty" plea to the

charge of conspiring with Flette to possess, 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 pleading guilty, Marrero first asserted
that he had not known what was in the box which he left at the
cafeteria for Flette following his receipt of the "ten jet skis"
message on the beeper.

2

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 whether he would change his plea, and after

consulting with a second attorney, Marrero ultimately decided to

plead guilty.3

A. The Rule 11 Hearing
A. The Rule 11 Hearing

On July 22, 1996, Marrero pled guilty pursuant to a

plea agreement and the district court conducted a comprehensive

Rule 11 hearing. See Fed. R. Crim. P. 11. 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. He further acknowl-

edged that he was satisfied with Attorney Aguayo's represen-

tation, that he understood the indictment discussed with him by

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

3Even after meeting with both counsel, however, Marrero had
remained determined to proceed to trial. At around 3:30 or 4:00
p.m., Marrero and Aguayo went to a local bar for about an hour
while a potential defense witness decided whether he would
testify without a subpoena.

4Count 1 alleged that Marrero and Flette "did unlawfully,

willfully, and intentionally combine, conspire, confederate, and
agree together with each other, to commit offenses against the

United States, to wit: willfully, knowingly and unlawfully

attempting to possess with intent to distribute multi-kilogram

amounts, that is, ten (10) kilograms of cocaine, a schedule II

narcotic drug controlled substance, that is, conspiracy to

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

All in violation of Title 21, United States Code, Section

3

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 of cocaine. He assured the

court that he had not been coerced or intimidated into pleading

guilty; that he had read 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 between Flette and the

undercover agents, at which it 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 21, U.S. Code, Section 846 and
841(a)(1). Is that so?"
[Marrero]: "Yes, sir."
[Court]: "And Count One charges you with
conspiring with others to unlawfully attempt-
ing [sic] to possess with intent to
distribute multi-kilograms, that is, 10
kilograms of cocaine . . . that is, a
conspiracy to violate Section 841(a)(1) of
Title 21. Is that so?"
[Marrero]: "Yes, sir."

4

the undercover DEA agents." The prosecutor stated that "[a]

beeper message was sent to a pager company, indicating that the

ten jet skis should be prepared because the buyers were ready."6

Further, the prosecutor described how Flette had entered the

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

arrested, Marrero was carrying the beeper bearing the "ten jet

skis" message from Flette. Finally, the prosecutor represented

that Flette would establish that Marrero had "willingly and

knowingly conspired with Jesus Flette and others to distribute 10

kilograms of cocaine and in fact did distribute the one kilogram

of cocaine." At this point, Marrero agreed with the government's

version of the relevant events as described by the prosecutor.

The district court accepted the guilty plea after determining

that it was voluntary, knowing, and intelligent.

B. The Rule 32(e) Hearing
B. 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 guilty plea, see Fed. R. Crim. P. 32(e), claiming

that it was: (1) involuntary, in that he had succumbed to a

sense of helplessness and futility when confronted with Attorney

Aguayo's advice that the benefits of the plea agreement

outweighed the risks of conviction at trial; (2) not "intelli-

6The Government's Version of the Facts described the beeper
message as: "Jesus Flete then sent a message to a beeper service
to be forwarded to the beeper of the defendant, Jose Marrero-
Rivera. That message stated that the ten 'jet skis' (referring
to the ten kilos of cocaine) should be prepared." (parenthetical
in original).

5

gently" made, as it had been premised on several incorrect

assumptions, including that he was guilty of conspiracy simply

because he had received and retained the box for his employee,

Flette, even though he had no contemporaneous knowledge as to

what was in the box; (3) not "knowingly" made, in that he had

delegated to counsel the responsibility for reviewing and inter-

preting the plea agreement, and thought that once he had agreed

to change his plea he would have to sign the plea agreement and

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

(4) not adequately supported by the Government's Version of the

Facts, or the prosecutor's summary during the Rule 11 hearing,

because there was no demonstration that Marrero had known that

the box he had held in his hands contained cocaine; 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 Rule 32(e) hearing, Attorney Aguayo

testified that he had explained the plea agreement to Marrero,

but did not coerce him to sign it. Upon inquiry by the district

court, as to whether Aguayo had "explain[ed] the nature of the

charges" and "the issue about . . . the requirement the

government had to prove his knowing participation in the

conspiracy," Aguayo replied that he had done so and that he had

"explained . . . very clearly that . . . in order for the Court

to accept a plea of guilty there had to be a basis in fact for

it." Marrero responded by introducing notes, used by Aguayo

6

during their change-of-plea conference, describing Marrero's

admission as follows: "What I did . . . A person came to my

business and left a package for Jesus Flette. The package

contained cocaine."

The district court found a sufficient factual predicate

for the guilty plea, citing in particular the Government's

Version of the Facts, with which Marrero had agreed and which

explicitly noted that the "ten jet skis" message from Flette to

Marrero meant ten kilograms of cocaine. See supra note 6. The

court construed this to mean that Marrero thereby acknowledged

not only the true purport of the beeper message, but admitted

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

Further, the court considered its earlier Rule 11 inquiry

adequate to support a reliable determination that Marrero had

understood the conspiracy indictment and the plea agreement, and

expressly had agreed that he was criminally responsible for

conspiring to sell ten kilograms of cocaine. Finally, the

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

Rule 11 hearing transcript, which warranted a finding that

Marrero had not understood what he was admitting to at the Rule

11 hearing. Accordingly, the district court denied the motion to

withdraw the guilty plea.

II
II

DISCUSSION
DISCUSSION

A. Plea Withdrawal Before Sentencing
A. Plea Withdrawal Before Sentencing

1. Legal Framework
1. Legal Framework

7

We begin with bedrock principles. There is no absolute

right to withdraw a guilty plea prior to sentencing. See United

States v. Pellerito, 878 F.2d 1535, 1537 (1st Cir. 1989), cert.

denied, 502 U.S. 862 (1991). Rather, a defendant may be allowed

to withdraw a guilty plea before sentencing only for a "fair and

just reason." See United States v. Cotal-Crispo, 47 F.3d 1, 3

(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 and just reason"). The burden of

persuasion rests with the defendant. United States v. Isom, 85

F.3d 831, 834 (1st Cir. 1996); United States 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 significant being whether the plea was

voluntary, intelligent and knowing, within the meaning of Rule

11. Cotal-Crispo, 47 F.3d at 3; United States v. Allard, 926

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

see pp. 22-25, include: (1) the plausibility and weight of the

proffered reason; (2) the timing of the request; (3) whether the

defendant asserted legal innocence; and (4) whether the parties

had reached, or breached, a plea agreement. Isom, 85 F.3d at

834; Cotal-Crispo, 47 F.3d at 4. Finally, assuming the defendant

carries the burden of persuasion on the aforementioned consider-

ations, the district court must weigh in the balance any

demonstrable prejudice to the government were the defendant

8

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 ruling may not be

set aside for anything less than "clear error." See, e.g.,

Pellerito, 878 F.2d at 1538 ("Confronted with an attempt at plea

retraction, the trial judge must make an idiocratic,

particularistic, factbound assessment an assessment which is

facilitated because the judge has overseen pretrial proceedings,

conducted the Rule 11 inquiries, accepted the original guilty

plea, and heard at first hand the reasons bearing upon its

withdrawal.").

If the district court's account of the evi-
dence is plausible in light of the record
reviewed in its entirety, the court of
appeals may not reverse it even though
convinced that had it been sitting as the
trier of fact, it would have weighed the
evidence differently. Where there are two
permissible views of the evidence, the
factfinder's choice between them cannot be
clearly erroneous.

Cumpiano v. Banco Santander Puerto Rico, 902 F.2d 148, 152 (1st

Cir. 1990) (citing Anderson v. City of Bessemer City, 470 U.S.

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

considerable deference to the firsthand assessment ultimately

made by the district court, which must be affirmed absent a

demonstrable abuse of discretion. See United States v. Sanchez-

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

9

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

2. Core Rule 11 Concerns
2. Core Rule 11 Concerns

We first inquire whether certain "core" Rule 11

concerns were met. Rule 11 was "intended to ensure that a

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

(1st Cir. 1994); see also Fed. R. Crim. P. 11(c). Accordingly,

the Rule 11 hearing should "produce a complete record of the

factors relevant to that determination so as 'to eliminate any

need to resort to a later factfinding proceeding in this highly

subjective area.'" Allard, 926 F.2d at 1244 (quoting McCarthy,

394 U.S. at 469).7

A total failure to address any "core concern" mandates

that a guilty plea be set aside. See Isom, 85 F.3d at 835;

United States v. Gray, 63 F.3d 57, 60 (1st Cir. 1995); Medina-

Silverio, 30 F.3d at 3. Otherwise, we consider whether any

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

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

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

1995) (Rule 11(h) "harmless error" rule excuses "minor and

technical violations"), cert. denied, 116 S. Ct. 1343 (1996);

7We have identified three "core" Rule 11 concerns: (1)
voluntariness i.e., absence of coercion; (2) understanding of

the charge; and (3) knowledge of the consequences of the guilty
plea. See Medina-Silverio, 30 F.3d at 2.

10

United States v. Raineri, 42 F.3d 36, 41-42 (1st Cir. 1994)

(harmless error analysis usually looks to whether error

influenced decisionmaker or 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). In determining whether there was a total

failure to address a core Rule 11 concern, we review all "the

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

to determining] what was communicated by the trial court, and

what should reasonably have been understood by the defendant,

rather than the form of the communication." Cotal-Crispo, 47

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

(a) Voluntary Plea
(a) Voluntary Plea

Marrero maintains that Aguayo pressured him into

accepting the plea agreement at the last minute, even though

Marrero was still "inclined to go to trial" within an hour or so

before the deadline for changing his plea. Marrero paints a

vivid picture: "definitely anxious . . . more anxious than

usual," waiting at a local bar, with his attorney, to 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 importunings to accept the plea bargain tendered by

the government.8 Furthermore, as he did at the Rule 32(e)

8During the Rule 32(e) hearing, Aguayo testified that while
waiting at the bar he had a beer, but could not recall whether
Marrero did. As Marrero has not alleged that he had anything to

11

hearing, Marrero contends that Aguayo's description of the

prospective sentence was overly rosy,9 whereas his estimation of

the prospects for success at trial was unduly pessimistic.10

Notwithstanding Marrero's resourceful challenge, there was no

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

plea was voluntary.

At the Rule 11 hearing, the district court

appropriately inquired whether Marrero was acting freely and

whether anyone had coerced him into pleading guilty. Marrero

reassured the district court under oath that he was pleading

freely and that no one had attempted to coerce him. Aguayo

corroborated these representations. Accordingly, Marrero's sworn

responses were reasonably credited by the district court, as

"[i]t is the policy of the law to hold litigants to their

assurances." Parrilla-Tirado, 22 F.3d at 373; see also United

States v. Martinez-Molina, 64 F.3d 719, 733 (1st Cir. 1995)

(statements at plea hearing "carry a strong 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 might be
able to reduce his sentence by a year, that he would 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 advise him of a
possible defense (i.e., that Marrero lacked the requisite mens

rea for conspiracy), and for failing to mention either the

possibility that Flette's testimony might be vulnerable on cross-
examination 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 cannot be credited, on its face, without

virtually displacing the "clear error" standard of review

governing the appellate inquiry. Cf. United States v. Butt, 731

F.2d 75, 80 (1st Cir. 1984) (even where appellant represents

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

11 hearing, those statements will be presumed true unless the

contrary allegations state a claim for ineffective assistance of

counsel and include credible, valid grounds for departing from

the normal presumption).

Similarly, there is no affirmative evidence that

Marrero acted involuntarily. Consequently, even assuming counsel

persuaded him that a guilty plea would best serve Marrero's

interests, the resultant plea would not have been rendered

"involuntary." See Miles v. Dorsey, 61 F.3d 1459, 1470 (10th

Cir. 1995), cert. denied, 116 S. Ct. 743 (1996); Williams v.

Chrans, 945 F.2d 926, 933 (7th Cir. 1991) ("'Advice even

strong urging' by counsel does not invalidate a guilty plea.")

(quoting Lunz v. Henderson, 533 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. See United States v. Muriel, 111 F.3d. 975,

981 (1st Cir. 1997) ("This court has not allowed defendants,

absent coercion or mistake, to renege on plea agreements on the

13

basis that they have miscalculated their risks and benefits or

have belatedly discovered a new defense."). Rather, in

determining whether to arrive at a plea agreement, criminal

defendants, with the assistance of counsel, must compare the

merit of their defenses with the strength of the government's

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

plea agreement or following trial. Were it otherwise, and

belatedly-realized mistakes in their pre-plea assessments were

deemed sufficient, without more, to warrant plea 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; judgments may be made that
in the light of later events seem
improvident, although they were perfectly
sensible at the time. . . . A defendant is
not entitled to withdraw his plea merely
because he discovers long after the plea has
been accepted that his 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 by the anxieties and time pressures

confronting Marrero. The unenviable position in which Marrero

found himself is common among criminal defendants, and hardly

exceptional enough to evince an overbearing of his will or to

14

have precluded a rational assessment of the available options.

See id. at 750 (no evidence defendant was so gripped by fear of

possible death penalty as to preclude rational weighing of

advantages of trial with advantages of guilty plea); Dorsey, 61

F.3d at 1470 ("Although deadlines, mental anguish, depression,

and stress are inevitable hallmarks of pretrial plea discussions,

such factors considered individually or in aggregate do not

establish that petitioner's plea was involuntary."); Pellerito,

878 F.2d at 1541 ("Criminal prosecutions are stressful

experiences for nearly all concerned . . . . The relevant

question for plea withdrawal is . . . whether the decision to

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

(b) Knowing and Intelligent Plea
(b) Knowing and Intelligent Plea

The main focus of the Rule 32(e) claim in relation to

the second core concern is that Marrero did not understand, nor

was he informed about, the mens rea requirement for the

conspiracy charge viz. that the government had to be able to

prove he knew, at the time, that the box he left for Flette

contained cocaine and constituted a one-kilogram sample of the

ten kilograms to be delivered to the buyers. In a closely

related contention, Marrero insists that there was 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 Marrero understood the nature of the cocaine

conspiracy charge at the Rule 11 hearing. Marrero acknowledged

under oath that he had read, discussed with counsel, and

understood the indictment. He endorsed the factual summary of

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

the indictment and the government's version of the facts plainly

referred to the requisite mens rea for conviction of the

conspiracy offense.11 Thus, Marrero was explicitly informed of

the mens rea requirement for the conspiracy charge.12

Nor are we unmindful that Marrero claims to have been

undone by the nuances of conspiracy law. But while a layman

might not be expected to understand, ab initio at least, exactly

what he need have known to be found culpable as a conspirator,

there can have been little question as to the point in time by

which the requisite culpable knowledge need have been acquired;

to wit, before the defendant's conspiratorial involvement, if

any, terminated. In truth then, the contention Marrero now

raises concerning whether his guilty plea was "intelligent" is

11The indictment, see supra note 4, was replete with

language affording Marrero notice of the requisite knowledge and
intent. See also supra note 5. Moreover,the prosecutor's

summary of the facts, see supra pp. 4-5, stated that Flette's

testimony would establish that Marrero "willingly and knowingly
conspired" with Flette to distribute ten kilograms of cocaine,
and did distribute one kilogram.

12The record evidence further reflects that Marrero is an
adult male, age 37, who completed high school and went on to
become a commercial airline pilot. At the time of his arrest,
Marrero owned and operated his own small cafeteria business. The
district court found that Marrero was alert and understood the
Rule 11 proceedings.

16

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

intricacies of conspiracy law, but on the commonsense, near-

universal understanding that one cannot be held criminally

responsible for agreeing to cooperate with another in effecting a

lawful enterprise. Thus, the upshot of the present contention is

that Marrero pled 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, what Marrero points to as clear

error is the district court finding both at the Rule 11 and

the Rule 32(e) hearing that Marrero conspired with Flette to

sell ten kilograms 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 district court reasonably could find that

Marrero and Flette knowingly agreed to supply ten kilograms of

cocaine. See, e.g., United States v. De La Cruz, 996 F.2d 1307,

1311 (1st Cir.) (although defendant never saw or possessed

cocaine, and there was no direct evidence that he knew of its

existence, a combination of circumstantial factors presence at

scene, suspicious conduct, subordination to drug leader,

possession of cellular phone and beeper allowed jury to draw

inference that scienter elements of conspiracy were present),

cert. denied, 510 U.S. 936 (1993). Among the evidentiary

considerations which sufficed, in combination, to support such a

17

showing, were Marrero's repeated admissions at the Rule 11

hearing that he had conspired with Flette to distribute ten

kilograms of cocaine; the employer-employee relationship between

Marrero and Flette; the beeper message Marrero received from

Flette to prepare "ten jet skis"; the government agents'

representations; the kilogram of cocaine seized by the agents;

and Marrero's acknowledgement that the government's version of

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

Marrero's admission that he did conspire with Flette 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 he never

knew the box contained cocaine. See Sanchez-Barreto, 93 F.3d at

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

The effort to establish that Marrero did not know the

box contained cocaine is impeded by two additional obstacles.

First, Marrero must persuade us that the district court's

contrary assessment constituted an abuse of discretion. See

Sanchez-Barreto, 93 F.3d at 23. Second, after repeatedly repre-

senting at the Rule 11 hearing that he did conspire with Flette

to distribute ten kilograms of cocaine, the plausibility of his

present contention is seriously diminished by his continuing

18

failure, even at this late date, to attempt to articulate a

theory upon which it might be 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 at the time he left it for Flette, there

was ample basis for the district court rationally to conclude

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

Rule 11 hearing for finding the guilty plea "intelligent" and

"knowing," especially in light of Marrero's assurances to the

district court that he had discussed the nature of the conspiracy

charge with Aguayo and understood it. On this record, the

district court's firsthand assessment that Marrero's guilty plea

was knowingly and intelligently made did not constitute an abuse

of discretion. See id.

Finally, after reviewing the entire record, we can

discern nothing that might have indicated to the district court,

in any way, that Marrero either did not understand, or had been

misinformed by counsel regarding, any element of the conspiracy

charge lodged against him. Rather, all responses given by

Marrero during the Rule 11 colloquy were entirely consistent with

a correct and comprehensive understanding of the conspiracy

charge and its elements. See Isom, 85 F.3d at 833, 836 (holding

that nothing in record indicated that defendant lacked

understanding of charges); United States v. Ramos, 810 F.2d 308,

314 (1st Cir. 1987) (no doubts raised as to competence to plead

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

19

13, 16 (1st Cir. 1983) (no indication at Rule 11 hearing that

plea was involuntary or product of misunderstanding); contrast

Gray, 63 F.3d at 60 (defendant represented that he was confused

about consequences of guilty plea); United States v. Ribas-

Dominicci, 50 F.3d 76, 79 (1st Cir. 1995) (responses during Rule

11 colloquy "should have alerted the court that [defendant] was

claiming that, at the time the trousers were sold to third

parties, he did not intend to commit a crime"); United States v.

Ruiz-Del Valle, 8 F.3d 98, 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. Valencia, 923 F.2d 917, 921 (1st Cir. 1991)

(defendant expressed confusion about jurisdictional element of

charge); Mack v. United States, 635 F.2d 20, 24-25 (1st Cir.

1980) (where defendant stated first that he had been coerced, a

contradictory statement that plea was voluntary could not simply

be accepted by district court "Once Mack stated that the plea

was not made of his own free will, the court was required to

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

(c) Evidentiary Predicate For Guilty Plea
(c) Evidentiary Predicate For Guilty Plea

For similar reasons, we reject the further claim that

the factual predicate for the guilty plea was inadequate. First,

Marrero conceded that the government could prove, beyond a

reasonable doubt, that he "willingly and knowingly 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 record further supports a finding

that Marrero had the requisite culpable state of mind. The

government's version of the facts stated that 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 that the record

does not indicate that he understood that the government's

rendition of "jet skis" (as a code term for "cocaine") purported

to describe what Marrero, as distinguished from Flette,

understood the term to mean. In addition, he now notes that

there is no record evidence that "jet skis" was a prearranged

code, and denies having known that it meant 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 (1st Cir. 1993)

(factual predicate for mens rea met even though court failed to

ask during Rule 11 colloquy, with regard to one count, whether

defendants had requisite intent, where intent reasonably could be

inferred from their admission of intent in relation to another

count); Cotal-Crispo, 47 F.3d at 4-5 ("What is critical is the

21

substance of what was communicated by the trial court, and what

should reasonably have been understood by the defendant, rather

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

Altogether aside from the fact that Marrero has not

attempted to explain to us why he would have received a beeper

message from Flette to prepare "ten jet skis," absent any record

indication or contention that either he or Flette dealt in

aquatic "jet skis," there is no suggestion from Marrero,

plausible or otherwise, as to why the undercover agents would

have offered Flette $18,000 for each "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 agents contained cocaine. Accordingly, we conclude

that the district court reasonably found that Marrero understood

that the beeper message he received from Flette referred to

cocaine, particularly in light of Marrero's Rule 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 the correctness of the
Government's Version of the Facts, which states that the agents
offered to buy "ten jet skis" at $18,000 each. Thus, there was
no clear error in the district court's finding that Marrero
understood, at the time he received it, that the "jet skis"
message referred to cocaine. In addition, of course, the
indictment to which Marrero pled guilty did not speak in code,
but plainly alleged, as an overt act, that Flette had sent a
beeper message to Marrero "providing instructions regarding the
sale of ten (10) kilograms of cocaine."

22

he was not guilty. See Parrilla-Tirado, 22 F.3d at 373 (asser-

tion of innocence weighs in favor of withdrawal). He relies on

notes made by Aguayo during their Rule 11 conference, indicating

that Marrero had admitted that the box he left for Flette

contained cocaine. Although Aguayo stated at 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 for it, Aguayo was not

asked to explain precisely how he had described the requisite

factual basis. See supra p. 6.

We cannot permit Marrero to exploit this putative

omission on direct appeal absent a fully developed record, as it

amounts to a Sixth Amendment "ineffective assistance" claim. See

United States v. Lopez-Pineda, 55 F.3d 693, 697 (1st Cir.)

(inadequate record precludes review of "ineffective assistance"

claim on direct appeal; collateral review remains open), cert.

denied, 116 S. Ct. 259 (1995); United States v. Tuesta-Toro, 29

F.3d 771, 776 (1st Cir. 1994) (collateral proceeding under 28

U.S.C. 2255 is proper forum for fact-bound "ineffective assis-

tance" claim, where record is insufficiently developed for direct

review), cert. denied, 115 S. Ct. 947 (1995); see also United

States v. McDonald, F.3d , , 1997 WL 464957 * (1st

Cir. August 20, 1997). Further factual development is plainly

necessary as the present claim implicitly presumes that Aguayo

rendered ineffective assistance. Although there could be little

doubt that an "ineffective assistance" claim would lie were it

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

23

Rule 11 hearing, that the defendant could not be convicted of

conspiracy under 21 U.S.C. 841(a)(1), 846, unless he had

knowingly conspired to distribute cocaine, we are not about to

presume professional ineptitude on the part of counsel.

3. Other Relevant Factors
3. Other Relevant Factors

Since the district court conducted a comprehensive Rule

11 hearing during which Marrero repeatedly stated that he was

satisfied with Aguayo's representation, understood the charges

and the consequences of his guilty plea, freely acknowledged

having agreed with Flette to distribute ten kilograms of cocaine

as alleged in the indictment and that he had not been coerced

into pleading guilty, the Rule 11 record fully supported the

district court's determination that the guilty plea was knowing,

intelligent and voluntary. See Sanchez-Barreto, 93 F.3d at 23

("We have found no abuse of discretion in disallowing plea

withdrawals where Rule 11 safeguards were scrupulously followed

by the district court."); Ramos, 810 F.2d at 314 ("That the

district court thoroughly complied with Rule 11 also weighs

heavily against appellant.").

Furthermore, the change of heart by Marrero came more

than fourteen weeks after the Rule 11 hearing. Given the

principal ground on which the Rule 32(e) motion is based

essentially that Aguayo had pressured him into pleading guilty

and had not explained to him that he need have known that the

object of the alleged conspiracy was to distribute cocaine we

think the extended delay in seeking to vacate the guilty plea

24

likewise diminishes its plausibility. "The rule of thumb is that

the longer a defendant waits before moving to withdraw his plea,

the more potency his motion must have in order to gain favorable

consideration." Parrilla-Tirado, 22 F.3d at 373. See also,

e.g., Isom, 85 F.3d at 839 (two months, too long); Cotal-Crispo,

47 F.3d at 8 (same); Ramos, 810 F.2d at 313 (thirteen days, too

long). Although Marrero asserts that it is difficult to find

legal representation in Puerto Rico in August, and points out

that the Rule 32(e) motion was filed prior to the presentence

report and sentencing, contrast United States v. Gonzalez-

Vazquez, 34 F.3d 19, 22-23 (1st Cir. 1994) (defendant moved to

withdraw plea after presentence report suggested he would receive

a stiff sentence); Parrilla-Tirado, 22 F.3d at 373 (same), these

other considerations alone do not warrant setting aside the

district court's firsthand assessment that there was no fair and

just reason for allowing Marrero to withdraw his guilty plea.

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

B. Calculation of Drug Quantity
B. 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 ten kilograms. See U.S.S.G. 2D1.1,

comment. (n.12) (1995) ("If, however, the defendant establishes

that he . . . did not intend to provide, or was not reasonably

capable of providing the agreed-upon quantity . . ., the court

25

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 not reasonably capable of

providing.") (emphasis added). Marrero further maintains that

even assuming he knew the box contained one kilogram of cocaine,

it was not "reasonably foreseeable" that the one kilogram was a

sample for a ten-kilogram sale, and therefore he should not have

been found culpable for the total amount negotiated by Flette.

See U.S.S.G. 1B1.3(a)(1)(B), comment. (n.2) (1995).

There can have been no clear error, see United States

v. Miranda-Santiago, 96 F.3d 517, 524 (1st 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 ten kilograms of cocaine as charged in the

indictment. See supra note 2. The district court was entitled

to credit these sworn admissions. 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, the claim that Marrero did not intend to

produce, or was not capable of producing, ten kilograms of

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

that he and Flette were not reasonably capable of delivering the

amount agreed upon with the undercover agents. See U.S.S.G.

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