United States Court of Appeals
For the First Circuit
No. 08-1626
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERTO E. PULIDO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella, and Lipez, Circuit Judges.
Miriam Conrad, Federal Defender Office, with whom Behzad
Mirhashem, were on brief for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for
appellee.
May 20, 2009
TORRUELLA, Circuit Judge. Defendant Roberto E. Pulido,
a former Boston police officer, pled guilty to drug and firearm
charges due to his involvement in two large cocaine deals. This
appeal raises several issues concerning his plea and sentencing.
After careful consideration, we affirm the district court in all
respects.
I. Background
We derive the facts from the trial preceding the plea,
the change of plea colloquy, and the Presentence Report ("PSR").
See United States v. Jiminez, 498 F.3d 82, 84 (1st Cir. 2007).
In 2003, Pulido, a Boston police officer assigned to the
mobile operations patrol, became the subject of a government
investigation. During the investigation the government learned,
through the work of a cooperating witness, that Pulido was involved
in a number of illegal ventures. The ventures included, among
other things, buying fraudulently obtained gift cards and providing
protection for parties, hosted by another individual, Matthew West,
that included drugs and prostitution.
In 2006, the government set up a sting operation in which
undercover agents posed as both buyers and sellers of large amounts
of cocaine. The agents approached Pulido about providing
protection for the shipment of cocaine. Pulido recruited two
Boston Police officers, Nelson Carrasquillo and, later, Carlos
Pizarro, to participate.
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The sting operation resulted in two transactions. The
first transaction involved the transfer of approximately 40
kilograms of cocaine from one van to another at a garage leased by
Pulido in Jamaica Plain. During this first transaction, the
government contends that Pulido possessed a firearm, a fact that
Pulido disputes. The second transaction involved the
transportation of approximately 100 kilograms of cocaine from
western Massachusetts to Boston. During the course of these
transactions, Pulido had discussions with the undercover agents
about establishing a "long relationship" and providing protection
for future shipments of cocaine totaling an additional 1,000
kilograms of cocaine.
Pulido, Pizarro, and Carrasquillo were charged in a four
count indictment, with Pulido charged under all four counts.
Counts 1, 2, and 4 charged drug offenses under 21 U.S.C. §§ 846 &
841(b)(1)(A). Count 3 charged Pulido with using or carrying a
firearm during and in relation to a drug trafficking crime, in
violation of 18 U.S.C. § 924(c)(1)(A). Both Pizarro and
Carrasquillo pled guilty and received sentences of thirteen years
and eighteen years respectively.
Pulido proceeded to trial. On November 8, 2007, after
three days of trial, but prior to the introduction of drug quantity
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evidence,1 Pulido pled guilty to all four counts, offering an
Alford2 plea for Count 3. The district court conducted a change of
plea colloquy, with Pulido represented by attorney Rudolph Miller.
At the colloquy the district court confirmed that Pulido
was entering "a straight up plea" and that Pulido was "not pleading
with a plea agreement with the government." Moreover, when the
district court asked "[h]as the government said, look, if you plead
guilty [the district court] will do this or do that?," Pulido
responded "No, no sir. Nothing like that." When the district court
asked the government whether there had been a recommended sentence,
the government similarly responded "No, your Honor."
During the colloquy, the district court informed Pulido
that the highest guideline range he faced with respect to the drug
charges if he were awarded a two-level reduction for acceptance of
responsibility was 292 to 325 months. However, at various times
before and after stating this range, the district court informed
Pulido that "I have to add five years on and after on the gun
charge. No question about that."
1
The district court noted that it was its practice to submit
evidence as to drug quantity to the jury.
2
See North Carolina v. Alford, 400 U.S. 25, 37 (1970) ("An
individual accused of crime may voluntarily, knowingly, and
understandingly consent to the imposition of a prison sentence even
if he is unwilling or unable to admit his participation in the acts
constituting the crime.").
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Shortly thereafter, on November 30, 2007, Miller moved to
withdraw as counsel, stating that the attorney-client relationship
had broken down and was beyond repair. The motion was granted the
same day and new counsel was appointed.
About five months later, on April 29, 2008, Pulido filed
a motion to withdraw his guilty plea and requested an evidentiary
hearing. Pulido claimed that his plea was not knowing and
voluntary because (1) his former counsel, Miller, promised Pulido
that he had obtained the government's promise to recommend a
fifteen year sentence from the government, and (2) he was
misinformed by the district court about the mandatory minimum
sentence that applied to him. Pulido also moved for leave to file
under seal an unredacted motion and affidavit, as well as a letter
from his former counsel, Miller, to the Board of Bar Overseers.
Pulido asserted that these documents supported his motion to
withdraw his guilty plea. The government filed a response stating,
in part, that it had no objection to an evidentiary hearing
provided that Pulido would take the stand and subject himself to
cross-examination. The government also filed, among other things,
an affidavit from Miller stating that "[t]here was no negotiated
plea deal and hence no recommended sentence."
On May 6, 2008, the district court denied Pulido's motion
to withdraw his guilty plea and motions to seal in two separate
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electronic orders. The district court did not conduct an
evidentiary hearing.
On May 14, 2008, Pulido moved to recuse the district
court judge. The basis of the motion was a sentencing memorandum
that the district court issued a week earlier, on May 7, 2008, in
separate case involving Matthew West. The sentencing memorandum
stated, in relevant part:
Together with a thoroughly corrupt police
officer, Roberto Pulido ("Pulido"), West ran
an unlicensed after-hours bar and strip club
rife with prostitution. Looking to get the
goods on Pulido (and perhaps other officers),
the F.B.I. used an undercover informant to
solicit West, seeking to purchase cocaine.
United States v. West, 552 F. Supp. 2d 74, 83 (D. Mass. 2008)
(emphasis added). The motion to recuse was denied two days later
on May 16, 2008, without a hearing and without a response by the
government.
Prior to sentencing, the defense submitted a sentencing
memorandum and moved the court to impose a below guidelines
sentence of 20 years, or 240 months. In support, the defense
submitted, among other things, a written report of a
neuropsychological evaluation of Pulido, which concluded that his
criminal conduct and moral decline was largely due to his heavy
steroid use. The defense also submitted numerous letters
supporting Pulido, police department commendations, and information
about Pulido's educational, employment, and personal history.
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On May 16, 2008, the district court sentenced Pulido.
The district court, following the PSR, calculated Pulido's
guidelines sentencing range ("GSR") by setting his criminal history
category at I and setting a base offense level of 36, based on 140
kilograms of cocaine. After adding a two-level enhancement for his
role as an organizer or leader of the criminal activity, see
U.S.S.G. § 3B1.1(c), a two level enhancement for his abuse of a
position of trust, see U.S.S.G. § 3B1.3, and a two level reduction
for acceptance of responsibility, see U.S.S.G. § 3E1.1, the
district court calculated Pulido's base offense level as 38, which
resulted in a GSR of 235 to 293 months, with an additional
five-year term (60 months) of imprisonment to be imposed
consecutively due to the mandatory minimum for the firearm charge.
This resulted in a GSR of 295 to 353 months.
The district court adopted the government's
recommendation of a sentence of 312 months, or 26 years. The
district court, addressing Pulido, then stated that "the conduct
related to these crimes, seem[s] utterly without redeeming
qualities" and that, although Pulido was "abusing steroids . . .
that's not an excuse." The district court concluded that "your
conduct puts you so far beyond the comradeship of those people who
wear that badge." The defense later raised the issue that the drug
quantity in this case was not indicative of Pulido's culpability,
since he was neither a buyer or seller of the drugs. The district
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court responded "I take it into account. . . . But it did not
particularly resonate with the Court and played [a] minimal role in
my determination of the sentence." Pulido now appeals.
II. Discussion
Pulido presents four issues on appeal. We address each
in turn.
A. Denial of Motion to Withdraw Guilty Plea
Pulido first argues that the district court erred when it
denied his motion to withdraw his guilty plea without an
evidentiary hearing.
Federal Rule of Criminal Procedure 11 provides that a
defendant may withdraw his or her guilty plea prior to sentencing
for any "fair and just reason." Fed. R. Crim. P. 11(d)(2)(B). We
have identified several factors to determine whether there is "fair
and just reason" to permit a withdrawal of a guilty plea, "the most
significant being whether the plea was voluntary, intelligent and
knowing, within the meaning of Rule 11." United States v.
Marrero-Rivera, 124 F.3d 342, 347 (1st Cir. 1997) (emphasis added).
Other factors include (1) the plausibility and weight of the
reasons offered by the defendant; (2) the timing of the request;
(3) whether there is a serious claim of actual innocence;
(4) whether the parties reached (or breached) a plea agreement; and
(5) any countervailing prejudice to the government if the defendant
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is allowed to withdraw his plea. See United States v. Sousa, 468
F.3d 42, 46 (1st Cir. 2006); Marrero-Rivera, 124 F.3d at 347.
"Absent errors of law, we review the decision to deny a
motion to withdraw a guilty plea only for 'demonstrable abuse of
discretion.'" United States v. Alvarez-Del Prado, 222 F.3d 12, 15
(1st Cir. 2000) (quoting United States v. Martínez-Molina, 64 F.3d
719, 732 (1st Cir. 1995)). However, an evidentiary hearing on a
motion to withdraw a guilty plea is "required when a defendant
alleges facts which, if taken as true, would entitle him to
relief." See United States v. González, 202 F.3d 20, 29 (1st Cir.
2000). Specifically, a defendant is entitled to an evidentiary
hearing unless the facts alleged are "'contradicted by the record
or are inherently incredible and to the extent that they are merely
conclusions rather than statements of fact.'" United States v.
Crooker, 729 F.2d 889, 890 (1st Cir. 1984) (quoting Otero-Rivera v.
United States, 494 F.2d 900, 902 (1st Cir. 1974)); see also
Machibroda v. United States, 368 U.S. 487, 496 (1962) (remanding
for evidentiary hearing on motion to vacate sentence and withdraw
guilty plea under § 2255 where allegations in support of the
motion, "while improbable, cannot at this juncture be said to be
incredible.").
Pulido argues that his motion alleges sufficient facts to
support his claim that his guilty plea was not voluntary and
knowing, such that he has asserted a "fair and just reason" to
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withdraw his guilty plea. See Fed. R. Crim. P. 11(d)(2)(B).
Accordingly, Pulido contends that he was entitled to an evidentiary
hearing, and that the district court erred in denying his motion
without one. Pulido argues, in particular, that his guilty plea
was not voluntary and knowing because his prior counsel, Miller,
erroneously represented to him that the government agreed to
recommend a sentence of fifteen years if he pled guilty
immediately. See McAleney v. United States, 539 F.2d 282, 284 (1st
Cir. 1976) (affirming allowance of withdrawal of plea where defense
counsel told his client that prosecutor agreed to a recommended
sentence of three years, but no such promise was made). For
support, Pulido points to the redacted affidavit he submitted with
his motion, where he asserts that Miller, during the course of the
proceedings, "told me . . . that the prosecutors had offered to
recommend a sentence of no more than 15 years, the minimum
mandatory sentence in the case, if I pled guilty immediately."
He also points to a letter his former counsel provided to
the Board of Bar Overseers in response to a complaint from Pulido,
excerpts of which were included in Pulido's motion.3 According to
Pulido, in the letter Miller stated that he obtained for Pulido
"the option of a drastically reduced sentence" because he was able
3
The letter itself was never filed. Pulido moved to file a
redacted version of the letter under seal, but on May 6, 2008, the
district court denied the motion as moot after it denied Pulido's
motion to withdraw.
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to get the government "to agree not to pursue the upcoming
testimony of the thousand kilos if Pulido pled guilty." Miller
further stated that "[i]f Pulido had waited until the government
witness concluded his direct testimony he would have positively
faced a 30 to life sentence. At this point, he faced a mandatory
15."
Finally, Pulido emphasizes that he admitted to
enhancements for his role in the offense and for abuse of a
position of trust. Pulido contends that he would not have made
these concessions in the absence of a plea agreement with the
government.
Based on our review of Pulido's allegations and the
record, we conclude that Pulido was not entitled to an evidentiary
hearing because his allegations were "contradicted by the record."
Crooker, 729 F.2d at 890 (quotation marks omitted). Pulido's claim
that his former counsel promised him that the government would
recommend a mandatory minimum of fifteen years is contradicted by
his representations to the district court at the change of plea
colloquy:
THE COURT: Now, it's obvious that on his
behalf he's had discussions with the
government and the government through him with
you. I mean, you've talked, there isn't a
bargain, things have been talked about here.
But I take it a recommendation has not been
talked about.
GOVERNMENT: No, your Honor.
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COURT: So you understand that when we come to
sentence you, you don't know, you haven't got
a full-scale plea bargain. There was this
business about them recommending the two
levels off if you plead guilty today and I'll
let the jury go. And while I'm not going to
hold them to that, I really do take that into
account. But that's about the only thing I've
heard on their part. They're going to make
some recommendation what they think is
appropriate under the law. Do you understand
that?
MR. PULIDO: Yes, I do.
THE COURT: So, but for these general
discussions back and forth, this is a, what's
called a straight up plea. You're not pleading
with a plea agreement with the government. Do
you understand that?
MR. PULIDO: Yes, I do. Yes.
THE COURT: So, let me ask you this. Other than
what I've been told and I've just been talking
about, has anybody promised you anything to
get you to plead guilty?
MR. PULIDO: Promised me? No. No, sir.
THE COURT: Well, what were you talking about?
What were you thinking of?
MR. PULIDO: No one's promised me anything,
sir, no.
THE COURT: Well, has anyone suggested to you
what was going to happen to you if you pleaded
guilty? I mean, other than your attorney,
that's absolutely private between you.
MR. PULIDO: No.
THE COURT: But, I mean, has the government
said, look, if you plead guilty [the district
court] will do this or do that?
MR. PULIDO: No, no sir. Nothing like that.
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This exchange shows that Pulido repeatedly denied that there was
any agreement with, or promise by, the government to recommend
anything, let alone a fifteen year sentence. See United States v.
Torres-Rosario, 447 F.3d 61, 67 (1st Cir. 2006) (holding that a
court is "entitled to give weight to [the defendant's] assurances
at his change of plea [colloquy]" absent a "good reason for
disregarding them"); see also Blackledge v. Allison, 431 U.S. 63,
74 (1977) (stating that a defendant's "declarations in open court
carry a strong presumption of verity").
Pulido counters that there is no conflict. Pulido claims
that when the district court asked whether he understood that there
was no plea agreement with the government, he took that to mean
that there was no written plea agreement. In addition, when the
district court asked him, "[h]as the government said, look, if you
plead guilty [the district court] will do this or do that?," he
understood the question as only asking whether the government said
to Pulido the district court "will do this or do that." Thus,
Pulido argues that his "no" answer is consistent with his claim
that it was Miller who told Pulido that the government would
recommend a fifteen year sentence. For the same reason, Pulido
contends that his "no" answer to the district court's question of
whether "anyone suggested to you what was going to happen to you if
you pleaded guilty? I mean, other than your attorney" also does
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not conflict with his claim that Miller relayed to him that he
obtained a fifteen year recommendation from the government.
Although these specific questions and answers do not
contradict Pulido's allegations, the rest of the colloquy, when
read as a whole, shows a conflict. See United States v. Isom, 85
F.3d 831, 835 (1st Cir. 1996) (noting that, on review of the denial
of a motion to withdraw guilty plea, we "review[] the totality of
the circumstances surrounding the Rule 11 hearing, rather than
apply a 'talismanic test.' What is critical is the substance of
what was communicated by the trial court, and what should
reasonably have been understood by the defendant, rather than the
form of communication" (quoting United States v. Cotal-Crespo, 47
F.3d 1, 4-5 (1st Cir. 1995))). As the above quoted exchange shows,
when asked if he entered a "straight up plea," Pulido responded
"yes." When asked if "anybody promised you anything to get you to
plead guilty?" (which the district court asked prior to asking
whether anyone "other than your attorney" promised him anything)
Pulido responded "no," and further stated, after a conference with
Miller, that "[n]o one's promised me anything, sir, no." In
addition, although Pulido interprets the question "has the
government said, look, if you plead guilty [the district court]
will do this or that[?]" to exclude representations from Miller as
to any plea agreement, his answer, "no, no sir. Nothing like
that," suggests that he understood the question much more broadly.
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Thus, when read as a whole, Pulido's representations at the change
of plea colloquy belie his claim that Miller told Pulido that
Miller had secured a recommendation of fifteen years.
Pulido argues that even if the colloquy conflicts with
this claim, he is still entitled to an evidentiary hearing. Pulido
cites case law where we have held that because "most defendants
would be expected to deny any impropriety" during a plea colloquy,
"courts have generally concluded that the Rule 11 record is
'evidential on the issue of voluntariness . . . not conclusive.'"
See United States v. McCarthy, 433 F.2d 591, 593 (1st Cir. 1970)
(citation omitted) (emphasis added). However, as we noted in
Torres-Rosario, a court is "entitled" to rely upon the defendant's
assurances at the colloquy unless "there is good reason for
disregarding them," such as "the case in which both a plea and
colloquy were achieved through undisclosed threats of violence."
447 F.3d at 67. No such "good reason" is alleged in this case.
Moreover, we have typically disregarded representations at a plea
colloquy "only when the allegations were highly specific and
usually accompanied by some independent corroboration." United
States v. Butt, 731 F.2d 75, 80 n.5 (1st Cir. 1984) (citing cases
in the § 2255 context) (emphasis added). As shown below, Pulido's
allegations have no "independent corroboration" to support
disregarding his representations at the change of plea colloquy.
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Thus, we not only view his plea colloquy as "evidential," but
sufficiently "conclusive" to contradict his claims.
Pulido points to a letter by Miller to the Board of Bar
Overseers as further substantiating his claims. In particular,
Pulido contends that Miller's statement in the letter that he
obtained "the option of a drastically reduced sentence" supports
Pulido's allegation that Miller obtained a recommendation of a
fifteen year sentence from the government. Not so. The references
that Pulido himself quotes only state that Miller obtained "a
drastically reduced sentence" by getting the government "to agree
not to pursue the upcoming testimony of the thousand kilos if
Pulido pled guilty." Contrary to Pulido's contention, no mention
is made in the letter of Miller obtaining a specific recommendation
from the government, only of preventing the government from
entering additional evidence of drug weight. Likewise Miller's
mention in the letter that Pulido "faced a mandatory 15" does not
support Pulido's allegation that Miller secured a recommendation of
only "15."4
4
At oral argument, Pulido contended that the discrepancy between
(1) Miller's statement that he was able to get the government "to
agree not to pursue the upcoming testimony of the thousand kilos if
Pulido pled guilty," and (2) the government statements at the
change of plea colloquy that it reserved its right to present
evidence of the additional 1,000 kilograms of cocaine during
sentencing, supports his claim that his guilty plea was not knowing
and voluntary. Pulido argues that this discrepancy shows that
Miller misunderstood the government's position, and thus
misinformed that position to Pulido, such that his plea was not
knowing and voluntary.
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Moreover, Pulido's claim that he would not have made
concessions at the change of plea colloquy in the absence of a plea
agreement fails to corroborate his claim. Apart from his explicit
denial of any plea agreement at the change of plea colloquy, there
was an equally strong reason to make such concessions, one
supported by the record -- to prevent the introduction of evidence
at trial that Pulido was responsible for an additional 1,000
kilograms of cocaine. This is confirmed by Miller's statement in
his letter that "[i]f Pulido had waited until the government
witness concluded his direct testimony he would have positively
faced a 30 to life sentence." (emphasis added).
In the alternative, Pulido contends that his guilty plea
was not voluntary and knowing because the district court provided
him misinformation; in particular, that the district court told him
that he faced a minimum sentence of 292 months, but did not include
However, that is not the precise claim that Pulido made either
in his motion to withdraw or in his brief. Pulido contended in his
motion and his brief that Miller made a specific misrepresentation
-- that the government would agree to recommend a fifteen year
sentence. Thus, his argument as to this new, broader
"misrepresentation" is arguably waived. See United States v.
Giggey, 551 F.3d 27, 36-37 (1st Cir. 2008) ("[E]xcept in
extraordinary circumstances, arguments not raised in a party's
initial brief and instead raised for the first time at oral
argument are considered waived." (quoting United States v.
Pizarro-Berríos, 448 F.3d 1, 5 (1st Cir. 2006))). More
importantly, Pulido would not have been prejudiced by any such
misrepresentation. As it turned out, the government, in fact, did
not introduce evidence of the additional 1,000 kilograms at
sentencing. See Fed. R. Crim. P. 11(h) ("A variance from the
requirements of this rule is harmless error if it does not affect
substantial rights.").
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the 60 month consecutive sentence for the firearm count. See
United States v. Santo, 225 F.3d 92, 99 (1st Cir. 2000) (holding
that a district court's understatement of the minimum mandatory
sentence because of an error about drug weight warranted withdrawal
of guilty plea).
We disagree. During the plea colloquy the district court
informed Pulido that:
If you plead guilty here today, and all we're
talking about really, the only thing that's
going to make any difference from 360 to life
is whether I'm going to give you a discount
for pleading guilty. They say that if you
plead guilty they'll recommend two levels off
and that takes you down to 292 to 365 in terms
of months.
Here, Pulido contends that the district court neglected to inform
him that the recommended 292 month minimum does not include the 60
month mandatory consecutive sentence under the firearm charge.
However, in prefacing the discussion of this range, the district
court stated:
THE COURT: I'm trying to make clear how I go
about sentencing.
Now, the two levels off can't be off the five
years on the gun charge. They're off the drug
charges, and then the five years goes on and
after because Congress has told me that.
Do you understand that?
MR. PULIDO: Yes.
THE COURT: Now let's get to these. And what
I'm going to ask him to do is, I'm going to
ask him to assume the worst because you're
facing the potential worst. Assume the
enhancements that you say you will agree to
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and assume another thousand kilos is
attributable to you. And then I want him to
tell me, if I factor those things in, and
don't take anything off, what the range is.
(emphasis added). Thus, in discussing the guideline range, the
district court made clear that it was discussing the drug charges
in isolation (what the district court referred to as "these"),
noting that the "five years goes on and after" due to the firearm
charge.
At other times in the change of plea colloquy the
district court also distinguished between the drug charges and the
firearm charge. For example, earlier in the colloquy, the district
court stated "let's talk about the drug charges," going over the
drug quantity Pulido was willing to admit to and Pulido's admission
that he abused a position of trust. The district court then
pivoted and turned to "the gun charge, let's talk about that,"
noting that "I have to add five years on and after" for it. Much
later in the colloquy, in discussing the impact of the Alford plea,
the district court stated to Pulido that "in my mind, though I have
listened to you and I'll hear everything as to the drugs," he
planned to note that Pulido "pleaded guilty to the gun charge,
[where] he gets five years on and after."
Thus, when the colloquy is viewed as a whole, the
district court (1) separated its discussion of the drug charges
from the gun charge, (2) repeatedly represented that it would have
to add five additional years to any sentence due to the firearm
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charge, and (3) only represented a minimum of 292 months with
respect to the drug charges. Although we have acknowledged that
the "guidelines are complicated," see United States v. Yates, 973
F.2d 1, 5 (1st Cir. 1992), we do not find that the district court
misinformed Pulido. Accordingly, the colloquy contradicts Pulido's
assertion that he was, in fact, misinformed.
We conclude by noting that other considerations also
support the district court's denial of Pulido's motion to withdraw
his guilty plea. First, although Pulido entered an Alford plea
with respect to the firearm charge, he did not maintain his
innocence as to his involvement in the two cocaine transactions.
See United States v. Torres-Rosa, 209 F.3d 4, 9 (1st Cir. 2000)
("The absence of an assertion of innocence counsels against
allowing the plea to be withdrawn."). Second, although Pulido
changed counsel between his change of plea and his motion, he did
not provide any reason for the five month delay in filing his
motion. See, e.g., Sousa, 468 F.3d at 46-47 ("Sousa's five month
delay in moving to withdraw his plea also counsels against
permitting withdrawal."); United States v. Rodríguez-León, 402 F.3d
17, 26 (1st Cir. 2005) (three month delay "with no explanation"
supported denial of motion to withdraw guilty plea).
For all of these reasons, we find that the district court
did not commit reversible error in denying Pulido's motion to
withdraw his guilty plea without conducting an evidentiary hearing.
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B. Denial of Motion to Recuse
Pulido also challenges the denial of his motion to recuse
based on the district court's statement in a different, though
related, case, that he was "a thoroughly corrupt police officer."
West, 552 F. Supp. 2d at 83. Defendant contends that this
statement, made prior to his sentencing, required the district
court judge to recuse himself.
Recusals are governed by 28 U.S.C. § 455(a), which
provides that a judge "shall disqualify himself in any proceeding
in which his impartiality might reasonably be questioned."
(emphasis added). The statute "forbids not only the reality of
partiality but its objective appearance as well." United States v.
Snyder, 235 F.3d 42, 45 (1st Cir. 2000) (quoting Liteky v. United
States, 510 U.S. 540, 548 (1994)).
We review a ruling on a motion to recuse for abuse of
discretion, although "in close cases doubts ordinarily ought to be
resolved in favor of recusal." Id. at 46 (quoting In re United
States, 158 F.3d 26, 30 (1st Cir. 1998)). In conducting that
review, this Court will sustain the district court's ruling "unless
we find that it cannot be defended as a rational conclusion
supported by [a] reasonable reading of the record." United States
v. Vázquez-Botet, 532 F.3d 37, 47 (1st Cir. 2008) (internal
quotation omitted).
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This is not a close case. Pulido argues that the
district court's description of him as a "thoroughly corrupt police
officer" in the West sentencing memorandum made it reasonably
apparent to the public -- and to Pulido -- that the judge's mind
was already closed to evidence that might mitigate Pulido's crimes,
thereby mandating the court's recusal. In fact, according to
Pulido, the district court revealed its antipathy towards him
during sentencing when it stated "[Y]ou are one that, in the
conduct related to these crimes, seem[s] utterly without redeeming
qualities."
Although any appearance of partiality is forbidden, the
Supreme Court has held that "opinions formed by the judge on the
basis of facts introduced or events occurring in the course of the
current proceedings, or of prior proceedings, do not constitute a
basis for a bias or partiality motion unless they display a
deep-seated favoritism or antagonism that would make fair judgment
impossible." Liteky, 510 U.S. at 555 (emphasis added). Here, the
district court had the benefit of the West trial, which discussed
Pulido's criminal activities extensively, the guilty pleas of
Pulido's co-defendants, Pizarro and Carrasquillo, the three days of
Pulido's interrupted trial, and Pulido's own change of plea
colloquy, to support its statement that he was a "thoroughly
corrupt police officer." As for the district court's statements
during sentencing, the district court was referring to Pulido's
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"conduct," which the district court had ample evidence to comment
on, and, in any event, the district court had discretion to place
greater emphasis on Pulido's crimes rather than the mitigating
evidence submitted on his behalf. See United States v. Deppe, 509
F.3d 54, 62 (1st Cir. 2007).
Considering the evidence and the pleas reviewed by the
district court, we find no likely appearance of partiality. Thus,
no abuse of discretion occurred.
C. Consideration of § 3553(a) Factors
Pulido also contends that the district court committed
reversible procedural error by failing to consider mitigating
evidence during sentencing. Pulido had submitted as mitigating
evidence a written report of a neuropsychological evaluation which
concluded, among other things, that his conduct was largely due to
his heavy steroid use. Pulido also submitted numerous supportive
letters, police department commendations, and information about
Pulido's educational, employment, and personal history.
After the district court accepted the government's
recommendation, and imposed a twenty-six year sentence, the
district court stated the following:
Now, Mr. Pulido. The crimes of which you
stand convicted are striking in the evil that
they work upon our society. And you are the
author of those crimes. You involved the
other people. You did seek a criminal
life-style. We may talk about averages. We
may talk about other offenders. But you are
the one that, in the conduct related to these
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crimes, seem utterly without redeeming
qualities.
I accept that you were abusing steroids. As
Ms. Conrad argued on your behalf, that's not
an excuse; that does not take away from the
danger to the community that you posed by your
voluntary use of steroids.
This city gave you a badge. It gave you other
equipment, but it gave you a badge. A badge
that stand for during that period your part in
one of the oldest police departments in the
nation.
With that badge it is expected that you have a
sense of duty. A famous American once said
that duty is the noblest word in the English
language. You have no sense of duty. You are
in the commission of these crimes utterly dead
to a sense of duty.
The people who wear that badge have a sense of
honor. We don't speak much about honor in
society today, where we talk mostly about
salaries. But those people have a sense of
honor that goes with that badge.
You are dead to that sense of honor. You are
not one of that number. Your conduct puts you
so far beyond the comradeship of those people
who wear that badge.
This is a fair and just sentence.
The defense later raised the issue that the drug weight here was
not indicative of Pulido's culpability, since he was neither a
buyer or seller. The district court responded "I take it into
account. . . . But it did not particularly resonate with the Court
and played [a] minimal role in my determination of the sentence."
Typically, the reasonableness of a sentence within the
guidelines range is reviewed under the "deferential
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abuse-of-discretion standard." Gall v. United States, 128 S. Ct.
586, 591 (2007). However, "failing to consider the § 3553(a)
factors" constitutes procedural error. Id. at 597. Pulido argues
that the district court failed to consider certain mitigating
evidence related to the § 3553(a) factors, and thus committed
procedural error.5
There was no error. Pulido argues that a fair reading of
the sentencing record as a whole, including the parties' memoranda
and the transcript of the sentencing hearing, demonstrates that the
district court did not consider the mitigating evidence presented
by the defense. See Rita v. United States, 127 S. Ct. 2456, 2468
(2007) ("Where the defendant or prosecutor presents nonfrivolous
reasons for imposing a . . . sentence, . . . the judge will
normally . . . explain why he has rejected those arguments.");
United States v. Scherrer, 444 F.3d 91, 97 (1st Cir. 2006) (en
banc) (Lipez, J., concurring) ("[W]hen the defendant or the
government advances specific arguments for leniency or severity,
grounded in the defendant's history or the circumstances of the
offense, it is reasonable to expect a district court to explain why
those specific arguments are or are not persuasive.").
We disagree with Pulido's reading of the record. As the
above shows, while the district court acknowledged the abuse of
5
The parties dispute whether the issue is preserved, or whether
plain error review applies. Since we find no error, plain or
otherwise, we do not need to resolve this dispute.
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steroids evidence that Pulido argued mitigated the offense, it did
not find this evidence persuasive. Nor did the district court find
persuasive Pulido's argument that drug weight is not indicative of
Pulido's guilt. Moreover, the district court noted earlier in the
proceeding that it had "read all the letters that have been
submitted save for those that have just been handed to me and I'm
going to take the time to read those." Thus, the record shows that
the district court considered all of the mitigating evidence.
More importantly, we have held that a sentencing court is
not required to address the § 3553(a) factors "one by one, in some
sort of rote incantation when explicating its sentencing decision,"
nor must the court "afford each of the section 3553(a) factors
equal prominence." United States v. Dixon, 449 F.3d 194, 205 (1st
Cir. 2006). Here, the district court chose to emphasize some
factors over others; in particular, it emphasized that (1) the
egregious nature of Pulido's criminal conduct, (2) the fact that he
committed those crimes while a Boston police officer, and (3) the
danger which his crimes posed to society, all warranted a sentence
of twenty-six years. See 18 U.S.C. § 3553(a)(1) (sentence should
reflect the nature and circumstances of the offense and the history
and characteristics of the defendant); id. § 3553(a)(2)(A)
(sentence should reflect the seriousness of the offense, promote
respect for the law, and provide just punishment for the offense);
id. § 3553(a)(2)(B) (sentence should afford adequate deterrence to
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criminal conduct); id. § 3553(a)(2)(C) (sentence should protect the
public from further crimes of the defendant). Thus, we view the
district court's decision as "'entail[ing] a choice of emphasis,
not a sin of omission,' [which] is 'not a basis for a founded claim
of sentencing error.'" United States v. Rodríguez, 525 F.3d 85,
110 (1st Cir. 2008) (quoting Deppe, 509 F.3d at 62); see also
United States v. Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir. 2007)
(en banc) ("[A] court's reasoning can often be inferred by
comparing what was argued by the parties or contained in the
pre-sentence report with what the judge did."). Accordingly, no
procedural error occurred.
D. Imposition of Consecutive Mandatory Minimum
The fourth issue concerns whether it was plain error for
the district court to impose the mandatory minimum sentence for the
firearm count under 18 U.S.C. § 924(c), when Pulido was also
subject to a mandatory ten-year sentence under 21 U.S.C.
§ 841(b)(1)(A) because his offenses involved more than five
kilograms of cocaine. Because Pulido failed to object on this
ground at sentencing, the parties agree that we review for plain
error. See United States v. Olano, 507 U.S. 725, 732 (1993).
18 U.S.C. § 924(c)(1)(A) provides, in relevant part,
that:
Except to the extent that a greater minimum
sentence is otherwise provided by this
subsection or by any other provision of law,
any person who, during and in relation to any
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crime of violence or drug trafficking crime
. . . uses or carries a firearm, or who, in
furtherance of any such crime, possesses a
firearm, shall, in addition to the punishment
provided for such crime of violence or drug
trafficking crime--
(I) be sentenced to a term of imprisonment of
not less than 5 years . . .
(emphasis added).
In United States v. Parker, 549 F.3d 5 (1st Cir. 2008),
cert. denied, 129 S. Ct. 1688 (2009), we held that the "except
clause" highlighted above did not apply when the defendant was
subject to a mandatory ten-year term of imprisonment "by virtue of
the amount of drugs recovered." Id. at 10-12. In so holding, we
were in accord with the majority of other circuits who have
interpreted the "except clause." See id. at 11 n.4 (citing cases
from the Fourth, Fifth, Sixth, and Eighth Circuits).6 Because
Parker is on point, Pulido cannot show an error, let alone a plain
one, and his claim fails.
III. Conclusion
For the foregoing reasons, we affirm the district court
in all respects.
6
Since the filing of the briefs, the Second Circuit issued United
States v. Williams, 558 F.3d 166 (2d Cir. 2009), which takes the
opposite approach. There, the Second Circuit held that the "except
clause" applied "where the defendant is subject to a longer
mandatory minimum sentence for a drug trafficking offense that is
part of the same criminal transaction or set of operative facts as
the firearm offense." Id. at 168. Pulido argues that Parker was
wrongly decided, and contends that the reasoning of the Second
Circuit in Williams is more persuasive. However, Parker remains
the law of this circuit, and is directly on point.
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Affirmed.
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