United States v. Isom

United States Court of Appeals
For the First Circuit

No. 08-1263

UNITED STATES OF AMERICA,

Appellee,

v.

DERRICK ISOM,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]

Before

Boudin, Tashima,* and Howard,
Circuit Judges.

Todd A. Bussert, with whom Law Office of Todd A. Bussert,
was on brief, for appellant.
Donald C. Lockhart, Assistant United States Attorney with
whom Robert Clark Corrente, United States Attorney, Kenneth P.
Madden, and Sandra R. Hebert, Assistant United States Attorneys,
were on brief, for appellee.

September 2, 2009

*
Of the Ninth Circuit, sitting by designation.
 HOWARD, Circuit Judge. In December 2006, appellant

Derrick Isom ("Isom") pled guilty to two criminal counts involving

possession and distribution of cocaine base, also known as crack.1

In November 2007, Isom moved to withdraw his guilty plea. After a

hearing, the district court denied the motion and subsequently

sentenced Isom to 300 months' imprisonment. On appeal, Isom argues

that the district court erroneously denied the motion to withdraw.

Alternatively, he claims that several legal defects rendered his

guilty plea invalid ab initio. For its part, the government urges

us to enforce the appeal-waiver provision of Isom's plea agreement

and dismiss this appeal. Although the matter is complicated by

some unusual twists in the case of a co-defendant, we affirm Isom's

conviction.

I. Factual Background2

The federal indictment against Isom and one-time co-

defendant Khalid Mason was issued in October 2006, but the trail of

this case stretches back to December 2003, when a paid informant

told Providence, Rhode Island police that he had purchased crack

1
Count I charged conspiracy to distribute and to possess with
intent to distribute fifty grams or more of cocaine base. Count II
charged possession with intent to distribute fifty grams or more of
cocaine base.
2
We take the facts from unopposed aspects of the plea
agreement, plea colloquy, the prosecution's version of facts
presented at Isom's change of plea hearing, the presentence
investigation report and other related hearings. United States v.
Vargas, 560 F.3d 45, 47 (1st Cir. 2009).

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cocaine from Isom and Mason. According to the informant, the two

were conducting a substantial narcotics operation from a home on

Pavilion Avenue in Providence and another in Pawtucket, Rhode

Island. Following a period of surveillance, the police obtained a

search warrant for both locations in January 2004. As they

prepared to execute the warrant on the Pavilion Avenue house, the

officers saw Isom leaving. He left the scene in his car, placing

a cell phone call to Mason as he fled. Isom was arrested later the

same day. The search of 214 Pavilion Avenue yielded slightly more

than 303 grams of crack cocaine, packaging materials, $2360 in

cash, and personal items suggesting that Khalid Mason lived there.

The search of the Pawtucket residence uncovered personal

information linking Isom to the apartment, and over $9500 in a

jacket belonging to Isom.

A federal grand jury indicted Isom and Mason in October

2006.3 Trial was eventually set for January 2007. On November 30,

2006, Isom and his attorney signed a plea agreement. In addition

to Isom's agreement to plead guilty to both charged counts, the

government agreed, inter alia, to structure its sentence

enhancement submission4 such that only one of three prior felony

3
A state prosecution was dismissed in November 2006,
approximately one month after the federal indictment issued. The
government was unable to provide the trial court with an answer as
to the reason for the passage of time between the state arrest and
the federal prosecution.
4
See 21 U.S.C. §851

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drug convictions would be included, resulting in a minimum sentence

of twenty years, rather than life imprisonment. For his part, Isom

stipulated that he "conspired with Khalid Mason to possess in

excess of 303 grams of cocaine base, 'crack,' with the intent to

distribute." And finally, the plea agreement included the

following passage:

Defendant understands that Defendant may have
the right to file a direct appeal from the
sentence imposed by the Court. Defendant
hereby waives defendant's right to file a
direct appeal, if the sentence imposed by the
Court is within the guideline range determined
by the Court or lower. This agreement does
not affect the rights or obligations of the
United States as set forth in 18 U.S.C. §
3742(b), and the government retains its right
to appeal any of the Court's sentencing
determinations.

II. Change of Plea Hearing

As the sole target of this appeal is Isom's guilty plea,

we revisit the change of plea hearing in some detail.

Isom's change of plea hearing took place on December 15,

2006. The hearing began with a lengthy discussion between Isom,

his attorney (a federal public defender) and the judge concerning

Isom's complaints about his representation. Isom's grievances fell

into a two general categories: first, that his attorney both

failed to obtain all discovery to which Isom was entitled and

failed to provide him with all discovery the government had turned

over; second, that she failed to provide him with research

-4-
materials on certain legal issues. The district court pursued both

areas of contention.

The government detailed the discovery it had provided,

which included interview reports ("DEA-6s"), a compact disc with a

recording of Isom's post-arrest statement to police, and all other

reports on the case. Defense counsel informed the court that she

met with Isom five times after his arrest, both before and after

receiving discovery from the government.

After the court expressed its view that Isom had received

all discovery to which he was entitled, Isom suggested that he had

insufficient time to review the materials. The court addressed

this complaint by noting that some five weeks had passed between

Isom's receipt of the material and the plea hearing.

This was followed by one of several instances in which

the court reminded Isom that he still had the choice to plead not

guilty, or to plead guilty without the agreement. Isom's response

forms the linchpin of one of his appellate arguments: "[I]f you

feel as though she's done her job, and that's all she was supposed

to do, then I can't argue the fact. So if it means I need to

plead, and I need to take the plea that was right for me, then, you

know, that's what I'll do." The judge also reiterated Isom's

options when Isom complained about the agreement's appeal-waiver

provision.

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 Isom then shifted gears somewhat, stating that the

information he lacked "had nothing to do with discovery." He said

that his attorney "would tell me she was going to do something and

she didn't do it." When pressed, Isom told the court that his

attorney did not fulfill her promise to provide him with relevant

caselaw, and, more generally, that she failed to adequately explore

the legal weaknesses in the government's case. As to the first

contention, the district court explained to Isom that it was not

his lawyer's role to "educate [him] to [her] level of understanding

of the law." As to the second issue, the Court asked defense

counsel whether she examined "all aspects" of Isom's case, to

ensure that Isom's constitutional rights were protected. Defense

counsel answered affirmatively and informed the court that she also

had consulted with another attorney in the public defender's office

to be certain she hadn't overlooked anything. The judge, satisfied

with counsel's answer, told Isom that he hadn't "heard anything

that leads me to believe that the Public Defenders' Office hasn't

done everything that they should do, and, frankly, more than you

would get in . . . many other places to ensure that your rights

were protected . . . ."

The judge-defendant colloquy, which encompassed

approximately fifteen transcript pages, ended with the following

exchange:

COURT: Now, I think we have spent more than
enough time on this. I am convinced, Mr.

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 Isom, that this is an example of what happens
from time to time where a defendant is unhappy
with the situation that he finds himself in,
and so he wants to avoid making the hard
decision that you have to make and wants to
blame the lawyer for that. It's time for you
to make a decision about what you want to do.
All right?

ISOM: Okay.

COURT: I've explained to you the choices that
you have. First, among them is you don't have
to plead guilty. All right? No one is making
you do that. So if you'd like me to just
enter you a plea of not guilty, and we'll go
to trial and all of your rights will be
protected, and we'll go to trial, but I want
to know what you want to do.

ISOM: No, your Honor. I'll plead guilty.
I'll take the plea, and I'll just go do my
time.

After Isom was sworn and stated that he intended to plead

guilty, the issue of his defense re-emerged in the following

exchange:

COURT: I want to ask you, are you satisfied
with the representation that you've received?

ISOM: Yeah.

COURT: Well, earlier you told me that you
weren't.

ISOM: Yeah. Your Honor, with all respects to
the court. I just -- like -- I'm tired of
fighting, and I'm not going to keep trying to
make the situation no worse for myself. Like,
I'm done. She did her job. You said she did
her job. I'm fine.

COURT: All right. I will say for the record,
as I did before, that I am satisfied that the
federal defender's Office and Ms. McElroy has

-7-
 provided you with adequate representation in
this case and done what they should have done
in terms of explaining to you the situation
and your options about pleading guilty or not
pleading guilty.
Now having said all of that, I want to
make clear, again, with respect to this plea
agreement, that you have had the chance to
review the terms of the plea agreement, read
it, you understand it; is that correct?

ISOM: Yes.

Isom was then asked about specific disagreements he had

with the government's recitation of facts it would prove if the

case went to trial. He said, "[F]or the most part, she, basically,

explained exactly what I was guilty of and my role in the

situation." The judge also asked whether Isom agreed that the

drugs and apartment were his. Although he began his answer,

"Basically, no," he continued:

What I'm agreeing to was there was a
conspiracy, and I used to buy cocaine from Mr.
Mason, and I used to resell that cocaine. And
this is, basically what my lawyer was
explaining to me that the conspiracy showed I
was guilty of. That apartment was not my
apartment. The quantity of drugs I had no
knowledge of until I was charged with those
drugs. I agree that the Government had,
basically, made its case, and I was guilty of
distributing them drugs, and I was in
conspiracy and the aiding and abetting, I
agree to it. I just - - I didn't have the
knowledge that the quantity of drugs were
there. That wasn't to my knowledge. All's I
knew was that I could get drugs from that
residence at any given time, and I could make
money off them.

-8-
 After Isom indicated that he had no further comment on

the recitation of facts, the court accepted his guilty plea. At

the government's request, Isom's sentencing was scheduled to take

place after Mason's trial, to afford Isom the opportunity to offer

cooperation with an eye towards lowering his sentence. As will be

shown below, however, that opportunity never arrived, due to

certain events in Mason's case upon which Isom bases his appeal.

III. Khalid Mason's case

Prior to trial, Mason moved to suppress the drugs seized

from 214 Pavilion Avenue.5 The stated basis for the motion was

that the affidavit supporting the warrant application contained

deliberate falsehoods which were part of a conspiracy between

Providence Police Sergeant Scott Partridge, a local attorney (who

had briefly represented Mason after his indictment), and the

attorney's law partner and paralegal. The gist of the scheme was

that criminal defendants, or persons on their behalf, would pay the

attorney and his cohorts either to bribe officials to drop the

charges or plant evidence on third parties to enable the defendant

to benefit through "cooperating" with authorities by providing

information about the ersatz crime. Mason, 497 F. Supp. 2d at 330.

5
See United States v. Mason, 497 F. Supp. 2d 328 (D. R.I.
2007).

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Isom theorizes that he and Mason were victims of the scheme and

that the seized drugs were planted.6

While the district court noted that Mason's claim had an

air of credibility because the attorneys and paralegal had all been

indicted for a similar scheme, id. at 330-31,7 the suppression

motion was denied after a two-day hearing, as Mason was unable to

implicate the affiant – Sergeant Partridge -- in the overall

scheme, or in connection with any wrongdoing in Mason's case. Id.

at 332 n. 3. The court concluded that there was "no credible

evidence" that Partridge lied on the warrant affidavit. Id. at

332. Although denying the suppression motion, the court expressed

great concern about "shoddy police work" uncovered during the

suppression hearing. Id. Of particular concern was the

"astonishing" testimony from Partridge and his partner that they

"failed to contemporaneously document any single fact, aspect, or

event in the ongoing investigation of Mason, Isom and the 214

Pavilion Avenue residence." Id. at 333.

6
The "planted drugs" scenario is how Isom's appellate brief
describes Mason's suppression claim. Yet Mason and his father
testified at the suppression hearing that they paid the paralegal
a "substantial amount of money" based on her assertion that the
attorney "could make the charges go away" by bribing the officer
with cash and a trip to the Super Bowl. Mason, 497 F. Supp. 2d at
331.
7
The attorneys, paralegal and several others eventually pled
guilty in Massachusetts federal court. See United States v.
Cicilline, No. 1:07-cr-10008-NMG, (D. Mass. filed Jan. 24, 2007).

-10-
 Isom, having already pled guilty, also testified at the

suppression hearing. In addition to relating his contacts with the

scheming attorney, Isom also reiterated and expanded upon his

dissatisfaction with his own attorney, and stated that he "never

dealt with [Mason] in a conspiracy" and the crack cocaine seized at

214 Pavilion Avenue was not his. On the other hand, he freely

admitted that he had had a drug-dealing relationship with Mason,

disputing only that it was operative at the time of his arrest in

January 2004. In addition to directly conflicting with his plea

agreement, Isom's testimony also contradicted a letter he had

previously sent to probation officers in connection with their

preparation of Isom's Presentence Investigation Report following

his guilty plea. Seemingly seeking credit for acceptance of

responsibility, Isom had written, "I fully and freely acknowledge

that I conspired with Khalid Mason to possess cocaine base with the

intent to distribute on January 16, 2004."8

The Mason saga did not end with the denial of the

suppression motion, however. Mason's trial was scheduled to begin

on August 20, 2007. Approximately one week in advance of trial --

but after the jury had been seated -- Partridge informed

prosecutors that he had located in his home attic a box containing

surveillance reports, notes and other reports related to the Mason

8
Isom's objection to the Presentence Investigation Report did
not take issue with the offense facts which were similar in all
material respects to those presented at his change of plea hearing.

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- Isom investigation.9 Instead of a trial, the government on

August 20, 2007 filed a motion to dismiss the indictment against

Mason with prejudice. The trial court expressed skepticism as to

whether such a drastic step was necessary, but ultimately granted

the motion.10

IV. Isom's motion to withdraw plea

Shortly after Mason's case was dismissed, Isom moved to

continue his sentencing from its scheduled September date. His

motion referenced the events in Mason's case, and indicated that a

motion to withdraw might be forthcoming. In fact, such a motion

was filed in November. In addition to professing his innocence,

Isom set forth three reasons in support of the motion: 1) that he

entered his guilty plea without the government fully complying with

its discovery obligations; 2) evidence discovered after the plea

meant that the plea was not entered into knowingly, voluntarily or

9
Isom does not dispute the government's contention that the
documents located by Partridge were not exculpatory, but instead,
tended to corroborate Partridge's version of events. He does,
however, suggest that the circumstances of their discovery calls
their authenticity into question.
10
Because Sergeant Partridge's discovery of the evidence at his
home was so at odds with his insistence that he had never taken any
notes or compiled any reports, the district court referred the
matter to the United States Attorney's Office for investigation.
After recusal by the District of Rhode Island office, the U.S.
Attorney for the District of New Hampshire cleared Partridge of
criminal wrongdoing, finding instead that his lack of diligence and
confusion about record retention policies contributed to his
failure to recall the existence of the evidence. See U.S.
Attorney, District of N.H., Report of Investigation,
http://www.usdoj.gov/usao/nh/ReportPartridge.pdf (August 1, 2008).

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intelligently; and 3) Partridge's conduct was so outrageous that it

deprived Isom of his state and federal substantive due process

rights.

After a hearing, the court rejected Isom's arguments and

denied the motion to withdraw. During the hearing, the judge noted

that the evidence against Isom included materials not within

Partridge's sphere of influence, including a recorded confession

taken after Isom's federal indictment,11 Isom's letter to the

probation office, and his statement at his change of plea hearing,

where he stated, "I sold drugs with Khalid Mason." The district

court also pointed out that, even under Isom's theory -- that

Partridge lied at the suppression hearing about taking notes -–

Partridge did not so testify until after Isom's plea. Therefore,

the court concluded, Partridge's alleged credibility problem could

not have affected the decision to plead, as the credibility issue

did not yet exist. Moreover, the judge indicated that since the

late-discovered documents were not exculpatory -- an assessment

that Isom did not dispute -- it was unlikely that Isom would be

successful in challenging the search warrant application if his

plea were to be vacated, as Partridge's inaccurate testimony about

11
In a recorded conversation with police -- not including
Partridge -- Isom described a box on the front porch of 214
Pavilion Avenue in which Mason left crack cocaine for Isom to take
if he needed it to sell, and where Isom would leave the money to
pay for it.

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his record-keeping was "separate and distinct" from his

truthfulness on the warrant application.

Additionally, the court stated that any attempt to use

the evidence-planting scheme as a basis for suppression would

likely fail for Isom, for the same reasons as it did for Mason --

it could not be tied to the events in Isom's case. And to the

extent that Isom claimed that although he conspired with Mason, he

did not do so at the time of the drug seizure, the government noted

that the indictment covered a period of time beginning before

January 2004.12

Finally, the court rejected Isom's claim of actual

innocence, first pointing to Isom's admissions, and then to the

fact that if Isom had truly believed he was innocent -- and was not

just seeking to capitalize on Mason's good fortune -- he would not

have waited until seven months after his plea to seek its vacatur.

V. Legal arguments

A. The appeal-waiver clause

As previously noted, Isom argues that his motion to

withdraw his plea should have been granted, and alternatively, that

his plea was legally invalid. The government's first argument in

response is that we need not reach the substance of Isom's appeal

because of the waiver clause in his plea agreement. We disagree,

12
The indictment alleged that Isom, Mason and others conspired
"Beginning on or about a date unknown to the grand jury and
continuing until on or about January 16, 2004 . . . ."

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concluding that while the waiver clearly barred an appeal by Isom

of his sentence, it does not clearly extend to the issue central to

this appeal -- the validity of the plea itself.

We review the validity of an appellate waiver in a plea

agreement under the rubric set forth in United States v. Teeter,

257 F.3d 14, 25 (1st Cir. 2001). Appellate waivers are binding if:

1) the plea agreement clearly delineates the scope of the waiver;

2) the district court inquired specifically at the plea hearing

about the waiver of appellate rights; and 3) the denial of the

right to appeal would not be a substantial miscarriage of justice.

See United States v. Edelen, 539 F.3d 83, 85 (1st Cir. 2008)

(applying "Teeter test").

The ultimate purpose of this examination is to ensure

that the defendant knowingly and voluntarily agreed to the plea's

terms, Teeter, 257 F.3d at 24, but "[e]ven a knowing and voluntary

appeal waiver only precludes appeals that fall within its scope."

United States v. McCoy. 508 F.3d 74, 77 (1st Cir. 2007). As noted

above, the critical language in Isom's agreement is as follows:

"Defendant understands that Defendant may have the right to file a

direct appeal from the sentence imposed by the Court. Defendant

hereby waives defendant's right to file a direct appeal, if the

sentence imposed by the Court is within the guideline range

determined by the Court or lower." The government focuses on the

second sentence, and argues that Isom has waived his right to file

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any direct appeal, as he received a sentence below the guideline

range that the district court eventually determined. This

argument, however, ignores the first sentence of the quoted

language which, to the contrary, suggests that Isom only waived his

right to appeal his sentence. Some ambiguity is evident even in

the relevant portion of the plea colloquy:

COURT: Now, we talked earlier about appeal
rights, and part of this plea agreement, which
you have said you do want to got forward with,
is that you will forfeit your right to appeal
with respect to the sentence if the Court
imposes a -- you waive your right of direct
appeal if the sentence imposed by the Court is
within the guideline range or lower. You
understand that?

ISOM: Yes.

(emphasis added).

Under the basic contract principles which we apply to the

construction of plea agreements, we construe such ambiguities

against the government. United States v. Newbert, 504 F.3d 180,

185 (1st Cir. 2007); see United States v. Acosta-Roman, 549 F.3d 1,

3 (1st Cir. 2008) ("[T]he scope of the waiver is simply a matter of

what the parties agreed to in the particular case.") (citing McCoy,

508 F.3d at 77). Here, as evidenced by the trial court's

hesitance, the waiver language quoted above leaves the scope of the

waiver unclear, and "the government must shoulder a greater degree

of responsibility for lack of clarity in a plea agreement."

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Newbert, 504 F.3d at 185 (citing United States v. Giorgi, 840 F.2d

1022, 1026 (1st Cir. 1988)) (footnote omitted).

The government argues that in Edelen we approved and

applied the identical waiver language present here. While it is

true that the defendant in Edelen was subject to the same waiver

language -- which we said "couldn't be clearer" -- the substance of

that appeal involved claims of sentencing errors, 539 F. 3d at 84-

85, and thus the ambiguity we are concerned with here played no

role in that case.

Finally, we note the plethora of cases in which appeal

waivers contain language which clearly, unambiguously, and without

any apparent linguistic gymnastics, encompass issues beyond

sentencing. See, e.g., Acosta-Roman, 549 F.3d at 3-4 ("The waiver

provision in Acosta's plea agreement states that he waived his

right to appeal his conviction and sentence . . . .") (emphasis

added); Teeter, 257 F.3d at 26 ("defendant waives to the full

extent of the law any right to appeal . . . the conviction and

sentence, or the manner in which it was determined") (emphasis

added); United States v. Soto-Cruz, 449 F.3d 258, 260 (1st Cir.

2006) ("defendant waive[d] and surrender[ed] his right to appeal

the conviction and sentence") (emphasis added).

Here, by contrast, we lack confidence that Isom waived

anything more than his right to appeal his sentence. Accordingly,

we decline to apply the appeal-waiver clause of Isom's plea

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agreement to this specific appeal. As will be shown below,

however, Isom does not prevail on the merits of his appeal.

B. Motion to withdraw guilty plea

A defendant may withdraw a guilty plea before sentence is

imposed if he shows "a fair and just reason for requesting the

withdrawal." United States v. Sousa, 468, F. 3d 42, 46 (1st Cir.

2006); Fed. R. Crim. P. 11(d)(2)(B). The factors to be considered

are whether the plea was voluntary, intelligent, knowing and in

compliance with Rule 11; the strength of the reasons offered in

support of the motion; whether there is a serious claim of actual

innocence; the timing of the motion; and any prejudice to the

government if the withdrawal is allowed. United States v. Padilla-

Galarza, 351 F.3d 594, 597 (1st Cir. 2003) (citing United States

v. Marrero-Rivera, 124 F.3d 342, 347 (1st Cir. 1997)).

As Isom moved to withdraw his guilty plea prior to

sentencing, we review the denial of the motion for abuse of

discretion. Sousa, 468 F.3d at 46. The district court's

factfinding supporting its denial of the motion can be set aside

only for clear error. Marrero-Rivera, 124 F.3d at 347. If the

court's "account of the evidence 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."

Id. (quoting Cumpiano v. Banco Santander Puerto Rico, 902 F.2d 148,

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152 (1st Cir. 1990)). Our review of the record finds no abuse of

discretion.

We have regularly noted that the "core concerns of Rule

11" -- whether the plea was voluntary, intelligent, and knowing -–

are the most important factors to consider. E.g., United States v.

Negron-Navarez, 403 F. 3d 33, 36 (1st Cir. 2005) (focus is on Rule

11 factors); United States v. Rodriguez-Leon, 402 F.3d 17, 22 (1st

Cir. 2005) ("most significant factor"); United States v.

Richardson, 225 F.3d 46, 51 (1st Cir. 2000) (same).

In this case, the district court engaged in a lengthy

discussion with Isom after Isom expressed his concerns about his

representation and his belief that he was not provided with

appropriate discovery. While we will address those particular

issues in more depth, with respect to the "core concerns" of Rule

11, it is enough for us to note that on several occasions Isom

explicitly stated that he was "ready" or "always willing" to plead

guilty, and that on at least three occasions, the judge reminded

Isom that he did not have to plead guilty. Moreover, after Isom

unequivocally responded to the court's inquiry by stating his

intent to plead guilty, all of the factors in Fed. R. Crim. P.

11(b)(1)-(3) were addressed. Specifically, Isom confirmed that he

had received and reviewed the indictment and understood the charges

contained therein, as well as understanding the elements of the

offenses after they were explained by the prosecutor.

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 Next, as described in Part II, above, although Isom

expressed some disagreement with the government's version of

provable facts, he ultimately acknowledged that the prosecutor

"basically explained exactly what I was guilty of and my role in

the situation" and that "I agree that the Government had, basically

made its case, and I was guilty of distributing them drugs, and I

was in conspiracy and the aiding and abetting, I agree to it."

Additionally, Isom agreed that his decision to plead was

voluntary, and that no promises or threats were made to induce him

to do so. And finally, the Court explained the consequences of

pleading guilty, including the loss of due process protections at

trial and potential resulting civil rights losses, and the Court

also described the effects of the sentencing guidelines and

statutory minimum sentences. Against this factual backdrop, we are

satisfied that Isom's plea met the concerns embodied in Fed. R.

Crim. P. 11.

Beyond the Rule 11 factors, Isom argues on appeal that

the motion should have been granted because Isom was asserting his

innocence; because of government discovery delays; and because

Partridge's testimony at Mason's suppression hearing damaged

Partridge's credibility. We disagree. First, as the district

court noted, Isom's claim of innocence flies in the face of several

admissions to the contrary. The district court also supportably

-20-
found that Isom received all discovery to which he was entitled.13

Moreover, the court found -- and defense counsel did not contest --

that the newly discovered evidence was not exculpatory. Finally,

even putting aside the fact that the district court stated that it

would not have ruled any differently than it did in Mason if Isom

had filed a suppression motion, Isom does not explain how the

discovery of the inculpatory surveillance notes cast doubt on his

guilt, nor can we discern any reason from the record. While

Partridge's overall credibility might have been dented by the turn

of events -- either because he was dishonest about the notes when

he testified at Mason's suppression hearing, or generally sloppy

about their safekeeping, or both -- there was evidence implicating

Isom that did not involve Partridge, including Isom's own

statements after he was federally indicted in 2006.14 Accordingly,

we find that the district court did not abuse its discretion in

denying Isom's motion to withdraw his plea.15

13
Echoing the comments made at the change of plea hearing, see
Sec. II, supra, the government's objection to Isom's motion to
withdraw contains a lengthy list of discovery materials provided to
Isom three weeks prior to the date he signed the plea agreement,
which was at least two weeks before the plea hearing itself.
14
Isom suggests for the first time on appeal that his 2006
confession was obtained in violation of his Sixth Amendment rights.
That argument was not raised in the district court, and thus we do
not consider it. See United States v. Hernandez-Rodriguez, 443
F.3d 138, 143 n. 5 (1st Cir. 2006) (theories not raised in the
district court cannot be raised for the first time on appeal).
15
Both the district court and the government relied on the 11-
month passage of time between the plea and the motion to withdraw

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C. Validity of the plea

Apart from Isom's claim that the district court should

have granted his motion to withdraw his guilty plea, Isom argues on

appeal that his guilty plea was invalid. He sets forth three

reasons in support of his position. First, he argues that the

district court erred in finding -- as required by Fed. R. Crim. P.

11(b)(3) -- that there was a factual basis for the plea.16 Next,

echoing the argument made in support of the motion to withdraw,

Isom claims that his plea was neither knowing nor intelligent. In

a related vein, Isom also argues that his plea was not voluntary,

because of the district court's "coercive tactics." We find all

three claims unavailing.17

it as an indication that Isom was simply employing sharp tactics.
Given that the motion was filed so soon after the events in Mason's
case, we do not entirely agree with this characterization. In one
respect, however, the delay works to Isom's detriment: his claim
of innocence did not depend on the events in the companion case,
but could have been raised earlier.
16
The court found that Isom's plea "was supported by an
independent basis in fact containing each of the essential elements
of the offense."
17
The government suggests that we review Isom's claim for plain
error only. Isom does not posit a standard of review, but argues
that his claim survives plain error review. While Rule 11(h) calls
for harmless error review, where Isom did not object to the alleged
Rule 11-related error in the district court, he must satisfy plain
error review. United States v. Rivera-Maldonado, 560 F.3d 16, 19
(1st Cir. 2009) (citing United States v. Vonn, 535 U.S. 55, 59
(2002)). Regardless, the result here is the same under either
standard. Indeed, we conclude that the district court committed no
error.

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 Isom's first argument, that there was no factual basis

for his plea, is premised on the claim that he never admitted that

any dealings with Mason involved "50 or more grams" of crack

cocaine, as the indictment alleged, and as the government stated it

would prove if the case went to trial. The record tells a

different story. After hearing the government's version of the

facts, which tied Isom to the approximately 303 grams of crack

seized from 214 Pavilion Avenue, Isom equivocated on his knowledge

of the quantity seized. In the end, while pointing out that he did

not know the precise amount seized, he said that he was "guilty of

distributing them drugs, and I was in conspiracy and the aiding and

abetting, I agree to it. I just - - I didn't have the knowledge

that the quantity of the drugs were there. . . . I could get drugs

from that residence at any given time and make money off them."

Given this admission and the others detailed above, the fact that

Isom did not know the precise amount seized on January 16, 2004,

does not constitute a denial of the government's allegations.

Moreover, as noted above, the Presentence Investigation Report

contains the same facts, to which Isom filed no objection.18

18
Isom also argues that, unless the defendant admits to the
drug quantity in a case where the drug quantity qualifies the
defendant for an enhanced sentence based on criminal history, there
is no factual basis for the plea, because drug quantity is an
element in such cases. He asserts that our cases holding that drug
quantity is not an element of the offense and therefore need not be
proven beyond a reasonable doubt, see United States v. Sanchez-
Badillo, 540 F.3d 24, 34 (1st Cir. 2008), cert. denied, 129 S. Ct.
953 (2009), are either inapposite or are "incorrect and flawed."

-23-
 Although not a model of clarity, Isom's next argument is

that his plea was invalid because it was not "knowing or

intelligent." The most specific claim is that he did not

understand the law, or the law as it applied to the facts. While

awareness of the elements of the charged offenses is a prerequisite

to pleading guilty, cf. United States v. McMullin, 568 F.3d 1, 8

n.7 (1st Cir. 2009), the district court went to great lengths to

address Isom's concerns. The change of plea hearing -- both before

and after Isom was sworn in -- contains numerous examples of the

court explaining to Isom the nature of the charges against him.

Acordingly, we reject Isom's argument that his plea was "neither

knowing nor intelligent."

Isom's final assertion is that the district court's

"involvement" in the plea process amounted to "coercion" that

rendered his plea involuntary. Rule 11(c)(1) prohibits the court

from participating in plea discussions between the government and

defense. Rather than focusing on participation, Isom points to

various statements made by the court during the lengthy colloquy.

For example, he assails the court's comments about his attorney's

responsibility to "educate him." While Isom argues that the court

was expressing the view that "it did not matter" if Isom understood

the law, the record does not support this interpretation. Indeed,

In light of our holding that the record establishes a factual basis
for the plea, we need not consider this argument.

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Isom has pointed to no authority suggesting that the court's

statement -- that counsel has no duty to educate the client to the

same level as the attorney -- is incorrect. On the contrary,

Isom's own brief cites to a provision of the Rhode Island Rules of

Professional Conduct describing the lawyer's duty to "explain a

matter to the extent reasonably necessary to permit the client to

make informed decisions . . . ." The record reflects that Isom's

expectations went well beyond that duty, and that the court's

comments were no more than an attempt to temper those expectations.

Isom also complains that the court's favorable comments

about his attorney's performance amounted to improper participation

in plea negotiations. We disagree. The court's comments

expressing satisfaction with defense counsel's efforts at

representation and explaining the charges against Isom came in

response to Isom's complaints, and to the discovery issue as

related by attorneys for Isom and the government. Isom fails to

explain how the court's responses to the issues that arose during

the plea hearing amounted to "participation," in violation of Rule

11(c)(1), See United States v. Pagan-Ortiz, 372 F.3d 22, 27 (1st

Cir. 2004) (threshold question is whether comments were made during

plea negotiations). Nor do they amount to coercion, where the

judge did not threaten Isom with consequences if he did not plead

guilty, express a preference as to one penalty over another, or

attempt to shape the terms of the plea. See United States v.

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Bierd, 217 F.3d 15, 21 (1st Cir. 2000) ("The rule against judicial

participation in plea bargaining protects the parties against

implicit or explicit pressure to settle criminal cases on terms

favored by the judge. It does not establish a series of traps for

imperfectly articulated oral remarks.") (quoting United States v.

Frank, 36 F.3d 898, 903 (9th Cir. 1994)).

Accordingly, we reject Isom's claim that his plea was

invalid.

VI. Conclusion

For the reasons set forth herein, we hold that the

appeal-waiver provision of Isom's plea agreement does not bar an

appeal challenging the validity of his guilty plea. On the merits,

we hold that his plea was valid and affirm the district court's

denial of his motion to withdraw his guilty plea. The district

court's judgment is affirmed.

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