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<pre> [NOT FOR PUBLICATION - NOT TO BE CITED AS PRECEDENT] <br> <br> United States Court of Appeals <br> For the First Circuit <br> ____________________ <br> <br>No. 98-1091 <br> <br> UNITED STATES OF AMERICA, <br> <br> Appellee, <br> <br> v. <br> <br> JORGE J. SOLANO-MORETA, <br> a/k/a WES, a/k/a CABALLO, a/k/a PEDRO, <br> <br> Defendant, Appellant. <br> <br> ____________________ <br> <br> <br> APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br> FOR THE DISTRICT OF PUERTO RICO <br> <br> [Hon. Salvador E. Casellas, U.S. District Judge] <br> <br> ____________________ <br> <br> Before <br> <br> Torruella, Chief Judge, <br>Hall, Senior Circuit Judge, <br> and Lynch, Circuit Judge. <br> <br> ____________________ <br> <br> Rafael Anglada-Lpez for appellant. <br> Miguel A. Pereira, Assistant U.S. Attorney, with whom <br> Guillermo Gil, U.S. Attorney, was on brief, for appellee. <br> <br> ____________________ <br> <br> December 1, 1998 <br> ____________________ <br>
LYNCH, Circuit Judge. Jorge J. Solano-Moreta <br> contends, among other things, that the district court erred in <br> denying his requests to withdraw his guilty plea. We affirm his <br> conviction. <br> I <br> On June 7, 1995, thirty-seven defendants, including <br> Solano-Moreta, were indicted in connection with a violent drug <br> conspiracy. On May 29, 1996, the day that he was scheduled to <br> go to trial, Solano-Moreta, the alleged leader of the <br> organization, pled guilty to engaging in a continuing criminal <br> enterprise in violation of 21 U.S.C. 848(a) and (b) and to <br> carrying firearms in relation to a drug trafficking crime in <br> violation of 18 U.S.C. 924(c)(1) and (2). <br> Ultimately, only eight of the defendants went to <br> trial. On August 8, 1996, the jury convicted three of these <br> defendants and acquitted five. <br> Solano-Moreta filed a motion to withdraw his guilty <br> plea in early December 1996, asserting that an agreement outside <br> the bounds of the plea agreement had induced his plea and that <br> his former counsel had not moved to challenge audiotapes or <br> explained the plea agreement fully. The court held evidentiary <br> hearings on December 19 and December 27, 1996 and denied the <br> motion on January 23, 1997. <br> When Solano-Moreta appeared for sentencing, he again <br> informed the court that he wished to withdraw his plea; with the <br> assistance of new counsel, another motion to that effect was <br> filed on May 21, 1997. In addition to requesting <br> reconsideration of the court's previous rulings, this motion <br> added further claims of involuntariness, claimed that previous <br> counsel had an unexplored conflict of interest, and asserted <br> that the indictment was defective. On December 10, 1997, after <br> yet another evidentiary hearing, the motion was denied. <br> Pursuant to the terms of a Federal Rule of Criminal <br> Procedure 11(e)(1)(C) plea agreement, which the court accepted <br> at sentencing, Solano-Moreta was sentenced to 540 months <br> imprisonment. <br> II <br> Solano-Moreta focuses his arguments on appeal on the <br> district court's denial of his plea withdrawal motions. In <br> considering whether a defendant has made an affirmative showing <br> of a "fair and just reason" for withdrawal of a guilty plea <br> before sentencing, Fed. R. Crim. P. 32(e), the district court <br> must consider all of the circumstances, focusing particularly on <br> the plausibility of the reasons prompting the change of plea, <br> the timing of the defendant's motion, the existence or <br> nonexistence of an assertion of innocence, and whether the plea <br> "appropriately may be characterized as involuntary, in derogation <br> of the requirements imposed by Fed. R. Crim. P. 11, or otherwise <br> legally suspect." United States v. Sanchez-Barreto, 93 F.3d 17, <br> 23 (1st Cir. 1996), cert. denied, 117 S. Ct. 711 (1997); see <br> also United States v. Pellerito, 878 F.2d 1535, 1537 (1st Cir. <br> 1989). If these factors tilt in favor of the defendant, the <br> court must also assess the prejudice to the government. SeeUnited States v. Parrilla-Tirado, 22 F.3d 368, 371 (1st Cir. <br> 1994). <br> A district court's ruling on such a motion is reviewed <br> only for "demonstrable abuse of discretion." Sanchez-Barreto, 93 <br> F.3d at 23. In addition, "[t]he trial court's subsidiary <br> factfinding in connection with plea-withdrawal motions can be <br> set aside only for clear error." Pellerito, 878 F.2d at 1538. <br> As a preliminary matter, although Solano-Moreta makes <br> numerous allegations that ineffective assistance by two of his <br> three previous counsel prevented him from withdrawing his plea <br> or from going to trial in the first instance, we decline to <br> address the ineffective assistance claim on direct appeal. The <br> district court ruled on some of Solano-Moreta's specific claims <br> of ineffectiveness and made factual findings relevant to the <br> performance of counsel in the course of deciding the motions for <br> withdrawal of the guilty pleas. Nevertheless, we conclude after <br> a careful review that the record on the various ineffective <br> assistance claims is not fully developed. (We note, as well, <br> that Solano-Moreta has not aided matters by presenting several <br> of his arguments on this topic to this Court in a cursory <br> manner.) Accordingly, we decline to address the ineffective <br> assistance claims. See United States v. Tuesta-Toro, 29 F.3d <br> 771, 776 (1st Cir. 1994) ("Ordinarily, a collateral proceeding <br> . . . is the proper forum for fact-bound ineffective assistance <br> claims."). <br> Putting these claims aside, then, we find that the <br> district court did not abuse its discretion in denying Solano- <br> Moreta's motions to withdraw his guilty plea. The court <br> determined in two well-reasoned written opinions that all of the <br> relevant factors weighed against permitting withdrawal. The <br> court found that Solano-Moreta's plea was fully voluntary and <br> that his reasons for withdrawal were implausible. The court <br> specifically held that no outside agreement binding on the <br> government existed (and that, even if Solano-Moreta's counsel <br> told him otherwise, any reliance on those statements was not <br> reasonable); that there was no support in the record for his <br> claim that the indictment was defective; that he understood the <br> plea agreement; and that there was no showing that his <br> competence to plead was affected by prescription medication or <br> any physical or psychological condition. The court also found <br> that Solano-Moreta's requests to counsel to move for withdrawal <br> immediately after his guilty plea did not somehow cure his <br> unreasonable delay in filing his motion, since, even if he <br> "considered [moving for withdrawal] . . . prior to December 1996, <br> it was always disregarded [as] he explored a more convenient <br> path or legal strategy." Finally, the court declined to credit <br> any claim of innocence based on its observation that Solano- <br> Moreta had perjured himself. <br> Solano-Moreta repeats here many of the same arguments <br> he advanced to the district court, but he provides no basis for <br> this court to question the district court's factual findings or <br> its weighing of the factors. "Confronted with an attempt at <br> plea retraction, the trial judge must make an idiocratic, <br> particularistic, factbound assessment -- an assessment which is <br> facilitated because the judge has overseen pretrial proceedings, <br> conducted the Rule 11 inquiries, accepted the original guilty <br> plea, and heard at first hand the reasons bearing on its <br> withdrawal." Pellerito, 878 F.2d at 1538. Many of the findings <br> at issue here are based on the district court's observation of <br> the demeanor of the defendant and the credibility of various <br> witnesses. In this case, we will not second-guess these first- <br> hand observations, especially since the district court's <br> consideration of Solano-Moreta's claims was particularly careful <br> and thorough. <br> Finally, we also reject Solano-Moreta's challenge to <br> the district court's acceptance of his plea agreement at <br> sentencing. "Before accepting a plea agreement that contains a <br> specific sentence under Fed. R. Crim. P. 11(e)(1)(C), a <br> sentencing court is required to satisfy itself either that: <br> 'the agreed sentence is within the applicable guideline range; <br> or (2) the agreed sentence departs from the applicable guideline <br> range for justifiable reasons.'" United States v. Carrozza, 4 <br> F.3d 70, 87 (1st Cir. 1993) (quoting U.S.S.G. 6B1.2(c)). <br> Ignoring the second of the two options provided by 6B1.2(c) of <br> the guidelines, Solano-Moreta rests his challenge on the bare <br> assertion that the stipulated sentence exceeded the guideline <br> range set forth in the pre-sentence report. Accordingly, he has <br> made no showing that the district court erred in accepting the <br> plea agreement and imposing the 540-month sentence that he <br> acceded to when he signed it. Nor has he made any showing that <br> the court erred in refusing to "mitigat[e]" his sentence. <br> We have considered all of defendant's arguments <br> properly presented on direct appeal and find them without merit. <br> Defendant's conviction is affirmed.</pre>
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