United States v. Serrano-Delgado

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<pre> [NOT FOR PUBLICATION - NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit ____________________ No. 98-1092 UNITED STATES OF AMERICA, Appellee, v. YAMIL SERRANO-DELGADO, Defendant, Appellant. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Salvador E. Casellas, U.S. District Judge] ____________________ Before Torruella, Chief Judge, Hall, Senior Circuit Judge, and Lynch, Circuit Judge. ____________________ Bruce J. McGiverin for appellant. Miguel A. Pereira, Assistant U.S. Attorney, with whom Guillermo Gil, U.S. Attorney, Jos A. Quiles-Espinosa, Senior Litigation Counsel, and Nelson Prez-Sosa and Rebecca Kellogg de Jess, Assistant U.S. Attorneys, were on brief, for appellee. ____________________ December 1, 1998 ____________________ LYNCH, Circuit Judge. Yamil Serrano-Delgado contends that the district court erred in denying his requests to withdraw his guilty plea and that his counsel provided ineffective assistance. We affirm his conviction. I Serrano-Delgado was one of thirty-seven defendants indicted in connection with a violent drug conspiracy. (For a further recitation of the factual background, see United Statesv. Solano-Moreta, No. 98-1091, a companion case that we also decide today.) On June 25, 1996, twelve days before trial began, Serrano-Delgado pled guilty to conspiracy to distribute controlled substances in violation of 21 U.S.C. 841(a)(1). Serrano-Delgado first communicated his desire to withdraw his guilty plea to the district court in late August 1996, after the acquittal of five of his co-defendants at trial. In a formal motion filed on November 8, 1996, Serrano-Delgado contended that he had pled guilty based on prior counsel's alleged advice that no one was ever acquitted in federal court, that he was legally innocent of the conspiracy charged, and that the court failed to comply with the dictates of Rule 11 when it accepted his guilty plea. After an evidentiary hearing and the post-hearing receipt of various supporting documents, the district court denied Serrano-Delgado's motion on February 14, 1997. Before sentencing, both Serrano-Delgado and his counsel filed a second set of motions to withdraw the plea, arguing, among other things, that Serrano-Delgado's former counsel advised him that in exchange for his guilty plea the government would guarantee that Puerto Rico authorities would not pursue charges against him. After another hearing, the court once again denied the relief requested. Serrano-Delgado was sentenced to 264 months imprisonment in accordance with the terms of his Federal Rule of Criminal Procedure 11(e)(1)(C) plea agreement. II Serrano-Delgado focuses his arguments on appeal on the district court's denial of his withdrawal motions. For a discussion of the standard by which a district court decides such a motion and the standard by which this court reviews the district court's decision, see Solano-Moreta, No. 98-1091. Serrano-Delgado's attempt to demonstrate that the district court abused its discretion in denying his motions is unavailing. The district court found after a thorough consideration of Serrano-Delgado's contentions that the timing of his motion weighed against him, that the evidence of his imprisonment and hospitalization during some of the relevant time period was "not sufficient to make a successful claim of innocence regarding his role in the charged conspiracy," that his plea was knowing, voluntary, and intelligent despite his low level of formal education and evidence of learning disabilities and psychological problems, and that he was properly advised of the elements of the conspiracy charge to which he pled guilty. The court also found that defendant was not misled into believing that the plea agreement prevented his prosecution in the Puerto Rico courts. The district court's refusal to permit the withdrawal of the plea here was well within its discretion. Giving the deference due to the district court's findings, see Solano- Moreta, No. 98-1091, we agree that Serrano-Delgado's delay in filing his motion does not indicate a "swift change of heart," United States v. Tilley, 964 F.2d 66, 72 (1st Cir. 1992) (internal quotation marks omitted), and that he has not demonstrated defects in the Rule 11 proceeding or a misunderstanding of the terms of the plea agreement, see United States v. Sanchez-Barreto, 93 F.3d 17, 23 (1st Cir. 1996) (noting that the defendant carries the burden of persuasion), cert. denied, 117 S. Ct. 711 (1997). We further agree that, although Serrano-Delgado has come forward with some evidence that suggests that he was not actively involved in the acts undertaken by the conspiracy during certain (but not all) relevant periods, the suggestion that this amounts to legal innocence is not powerful enough to outweigh the factors that cut against him. We also conclude that Serrano-Delgado has not shown that the district court, which had presided over the trial of eight co-defendants, erred in accepting at sentencing the plea agreement's stipulation that his admitted participation in the conspiracy made him responsible for at least 150 kilograms of cocaine. See generally United States v. Marrero-Rivera, 124 F.3d 342, 354 (1st Cir. 1997); Sanchez-Barreto, 93 F.3d at 25. Finally, although Serrano-Delgado claims that he was ineffectively assisted by counsel during one of his plea withdrawal hearings, we decline to address this claim on direct appeal. The claim, involving the attorney who represented Serrano-Delgado through the district court's entry of final judgment, was never presented to the district court and the record is insufficiently developed to warrant review at this juncture. See United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993) ("[T]he trial judge, by reason of his familiarity with the case, is usually in the best position to assess both the quality of the legal representation afforded to the defendant in the district court and the impact of any shortfall in that representation."). Although on occasion we have reviewed an ineffective assistance claim without the benefit of the district court's views, this case does not fall into any exception to our normal rule. See id. Accordingly, this claim (along with any other claims of ineffective assistance) may, if Serrano-Delgado chooses, be presented on collateral review under 28 U.S.C. 2255. See United States v. Tuesta-Toro, 29 F.3d 771, 776 (1st Cir. 1994) ("Ordinarily, a collateral proceeding . . . is the proper forum for fact-bound ineffective assistance claims."). We have considered all of defendant's arguments properly presented on direct appeal and find them without merit. Defendant's conviction is affirmed without prejudice to his right to renew his ineffective assistance claims in a collateral proceeding.</pre>

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United States v. Serrano-Delgado

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