United States v. Caramadre

United States Court of Appeals
For the First Circuit

Nos. 14-1019
14-1196
15-1125

UNITED STATES OF AMERICA,

Appellee,

v.

JOSEPH CARAMADRE,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]
[Hon. Patricia A. Sullivan, U.S. Magistrate Judge]

Before

Howard, Chief Judge,
Selya, Circuit Judge, and
Laplante,* District Judge.

Randy Olen, with whom Alan M. Dershowitz and Robert F. Weber
were on brief, for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Peter F. Neronha, United States Attorney, was on brief, for
appellee.

December 7, 2015

______________
* Of the District of New Hampshire, sitting by designation.
 SELYA, Circuit Judge. A federal grand jury returned an

indictment charging defendant-appellant Joseph Caramadre with

masterminding one of the most avaricious frauds in Rhode Island

history. Caramadre went to trial, but things did not go well for

him and, after four days, he entered into a plea agreement with

the government. The district court accepted his changed plea.

Some months later (but before sentencing), Caramadre

experienced a change of heart. Represented by new counsel, he

sought to retract his guilty plea. Following a multi-day

evidentiary hearing, the district court denied his motion.

Sentencing ensued.

Caramadre's appeals, taken collectively, advance an

infinity of arguments, characterized by clangorous sound and

unrestrained fury. But fiery rhetoric alone is not enough to

breathe life into moribund arguments and, after close scrutiny, we

conclude that Caramadre's appeals are without merit. Accordingly,

we affirm the judgment below.

I. BACKGROUND

We sketch the origin and travel of the case, assuming

the reader's familiarity with a number of other judicial opinions.

See, e.g., W. Reserve Life Assur. Co. of Ohio v. ADM Assocs., LLC,

737 F.3d 135 (1st Cir. 2013); United States v. Caramadre, No. 11-

186, 2014 WL 409336 (D.R.I. Feb. 3, 2014); United States v.

Caramadre, No. 11-186, 2013 WL 7138109 (D.R.I. Nov. 26, 2013);

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United States v. Caramadre, No. 11-186, 2013 WL 7138106 (D.R.I.

Nov. 6, 2013); United States v. Caramadre, 957 F. Supp. 2d 160

(D.R.I. 2013); W. Reserve Life Assur. Co. of Ohio v. ADM Assocs.,

LLC, 116 A.3d 794 (R.I. 2015).

Under the government's theory of the case, Caramadre —

a lawyer and accountant — and his codefendant, Raymour

Radhakrishnan, engaged for well over a decade in a scheme to

defraud various financial institutions. Caramadre and

Radhakrishnan implemented the scheme by fraudulently obtaining the

identifying information of terminally ill individuals through

material misrepresentations and omissions. They then invested in

variable annuities and corporate bonds with death-benefit

features, using the identities of these unwitting individuals as

measuring lives. When a terminally ill individual died, Caramadre

and Radhakrishnan cashed in the annuities and bonds and captured

the profits.1

Based on the scope of the fraud alleged in the sixty-

six-count indictment and the large number of anticipated

government witnesses, the trial was expected to last over three

months. On November 19, 2012 — four days into the trial — Caramadre

and Radhakrishnan entered into plea agreements and admitted their

1 A good example of how the scheme worked is found in W.
Reserve Life Assur. Co., 737 F.3d at 136-39.

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guilt to two counts: one count of wire fraud and one count of

conspiracy to commit wire fraud, mail fraud, and identity theft.

The district court accepted their pleas, and the government later

dismissed the remaining counts.2

Nearly two months passed. Caramadre's attorneys then

moved to withdraw from their representation of him, and his new

counsel informed the district court that Caramadre intended to

seek leave to retract his guilty plea. Caramadre filed such a

motion on February 28, 2013. The government objected, and the

district court held a protracted evidentiary hearing. The court

denied the motion from the bench at the conclusion of the hearing

and followed up with a fuller exposition in a written rescript

issued on August 1, 2013. See Caramadre, 957 F. Supp. 2d at 186.

On December 16, 2013, the district court sentenced

Caramadre to a six-year term of immurement. The court had

previously referred the question of restitution to a magistrate

judge. Prior to the imposition of the prison sentence, the

magistrate judge conducted an evidentiary hearing and recommended

restitution of approximately $46,000,000. See Caramadre, 2013 WL

7138109 at *2; Caramadre, 2013 WL 7138106 at *19. Over Caramadre's

2 Caramadre's plea agreement was entered into pursuant to
Fed. R. Crim. P. 11(c)(1)(C) and required that the court agree to
be bound by its stipulations (including a ten-year cap on any
prison sentence). The district court acquiesced.

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protest, the district court adopted the magistrate judge's

recommendation. See Caramadre, 2014 WL 409336, at *1.

Caramadre timely appealed and, on September 8, 2014, he

tendered his opening brief to this court. The brief referred to

statements allegedly made by the district court at an unrecorded

and untranscribed chambers conference held on January 15, 2013.

Because those statements were not part of the record, we struck

his brief and ordered him to refile it without reference to

anything supposedly said at the conference. Caramadre complied.

But that was not the end of the matter: Caramadre moved

in the district court for a statement of what had transpired at

the January 15 conference. See Fed. R. App. P. 10(c). On January

5, 2015, the district court rejected Caramadre's version of what

had occurred and substituted its own recollection. See United

States v. Caramadre, No. 11-186 (D.R.I. Jan. 5, 2015) (unpublished

order). Caramadre again appealed, sparking a new round of

appellate briefing.

Caramadre's appeals raise a golconda of issues. We

discuss here only those claims of error that possess a patina of

plausibility. The rest are either patently meritless,

insufficiently developed, or both. Consequently, we reject them

out of hand.

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II. PLEA-WITHDRAWAL MOTION

Caramadre offers several arguments in support of his

assertion that the district court erred in denying his motion to

withdraw his guilty plea. These include claims that the court

employed the wrong legal standard in deciding the motion, that the

court abused its discretion in balancing the relevant factors, and

that the court "exhibited bias and prejudged the motion." We find

none of these claims persuasive.

A. Legal Standard.

The logical starting point is Caramadre's claim that the

district court used an "erroneous" legal standard when ruling on

the motion to withdraw. This claim presents a pure question of

law and, thus, engenders de novo review.3 See United States v.

Gates, 709 F.3d 58, 69 (1st Cir. 2013).

It is common ground that a defendant has no absolute

right to withdraw a guilty plea. See United States v. Ramos-

Mejía, 721 F.3d 12, 14 (1st Cir. 2013); Gates, 709 F.3d at 68.

When a defendant moves to withdraw a guilty plea after the court

has accepted it but before the court has sentenced him, he may do

so only if he "can show a fair and just reason for requesting the

withdrawal." Fed. R. Crim. P. 11(d)(2)(B); see Gates, 709 F.3d at

3 We bypass the government's assertion that this claim is
procedurally defaulted and, therefore, subject to plain error
review. Under any standard of review, the claim fails.

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68; United States v. Marrero-Rivera, 124 F.3d 342, 347 (1st Cir.

1997). The burden rests with the defendant to make this showing.

See Marrero-Rivera, 124 F.3d at 347.

Critical to the plea-withdrawal inquiry is whether the

original guilty plea was knowing, intelligent, and voluntary. See

United States v. Aker, 181 F.3d 167, 170 (1st Cir. 1999) (citing

Fed. R. Crim. P. 11). Other factors, however, may weigh in the

balance. The court may consider, for example, "the plausibility

and weight of the reason given for the withdrawal, the timing of

the request, whether the defendant is now colorably asserting legal

innocence, and whether the original plea was pursuant to a plea

agreement." Id. If these factors, taken together, tilt in favor

of allowing withdrawal, the court must then weigh the prejudice

that the government would suffer if the plea were to be vacated.

See Gates, 709 F.3d at 69; United States v. Doyle, 981 F.2d 591,

594 (1st Cir. 1992).

In the case at hand, the district court expressly

acknowledged that the "fair and just reason" standard controlled

its inquiry. Caramadre, 957 F. Supp. 2d at 166. It proceeded to

identify and evaluate all of the relevant factors. See id. at

166, 181-86. Caramadre nonetheless persists in his claim of error,

hanging his hopes on two sentences in the district court's lengthy

rescript: "As the above discussion makes pellucid, Caramadre

entered into a knowing, intelligent, and voluntary plea, and thus

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no just reason exists for allowing him to withdraw it. Still, for

completeness sake, the Court will briefly address the additional

factors enumerated by the First Circuit." Id. at 181. Caramadre

urges that these sentences demonstrate that the court conflated

the "generous" fair and just reason for permitting withdrawal of

a guilty plea with the "stricter" standard for holding a plea

invalid.

This is nonsense on steroids. Rule 11 considerations

are a paramount concern in a plea-withdrawal inquiry. See United

States v. Santiago Miranda, 654 F.3d 130, 136 (1st Cir. 2011);

United States v. Richardson, 225 F.3d 46, 51 (1st Cir. 2000)

(quoting United States v. Cotal-Crespo, 47 F.3d 1, 3 (1st Cir.

1995)). Thus, the court below appropriately focused, at the outset

of its inquiry, on whether Caramadre's plea was knowing,

intelligent, and voluntary.

Here, moreover, Caramadre's plea-withdrawal motion —

which alleged that his plea had been involuntary and that he was

not competent to have tendered it — invited this very focus.

Caramadre cannot now fault the district court for accepting this

invitation and beginning its analysis with the very factors that

he himself had stressed.

In any event, the district court did not simply examine

Rule 11 considerations and stop there. Although the court stated

that it would address the other factors "briefly," Caramadre, 957

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F. Supp. 2d at 181, this was nothing more than self-deprecating

litotes. What followed was a thorough analysis of the other

factors. See id. at 181-86.

The short of it is that Caramadre's contention that the

district court premised its decision entirely on the validity of

his plea (and, thus, used an erroneous legal standard) turns a

blind eye to a generous portion of the district court's reasoning.

Reading the district court's rescript as a whole, Caramadre's claim

is fanciful. We summarily reject it.4

B. Abuse of Discretion.

In the absence of legal error, we review decisions

denying plea-withdrawal motions solely for abuse of discretion.

See United States v. Merritt, 755 F.3d 6, 9 (1st Cir. 2014).

Within this rubric, findings of fact are reviewed for clear error.

See Gates, 709 F.3d at 69. The defendant bears the devoir of

persuasion. See Merritt, 755 F.3d at 9.

4 Caramadre places heavy reliance on Ninth Circuit precedent
holding that "a defendant need not prove that his plea is invalid
in order to meet his burden of establishing a fair and just reason
for withdrawal." United States v. Ortega-Ascanio, 376 F.3d 879,
884 (9th Cir. 2004); accord United States v. Mayweather, 634 F.3d
498, 504 (9th Cir. 2010); United States v. Garcia, 401 F.3d 1008,
1012 (9th Cir. 2005). We do not think that these precedents are
inconsistent with the legal standard articulated in our own cases
and faithfully applied by the court below. Even if the Ninth
Circuit's standard differs from our own, any such divergence would
not constitute a compelling reason for disturbing a district
court's application of binding circuit precedent.

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 Caramadre's primary argument is that the district court

abused its discretion in balancing the factors relevant to whether

he should be allowed to withdraw his plea. In his view, the

district court did not appreciate that a "perfect storm" of events

"overbore his will and induced him to enter a guilty plea" that

was involuntary. This argument has several subsets, which we

discuss below.

1. The Rule 11 Colloquy. The most heated among these

sub-arguments is Caramadre's claim that the change-of-plea

colloquy was too scanty with respect to the district court's

inquiry into his medications and history of depression. At the

change-of-plea hearing, the district court asked Caramadre if he

was being treated for mental illness. He responded that he had

been treated for depression "both lately and for the last 20

years." One of Caramadre's lawyers then proffered a list of

Caramadre's current medications. The court reviewed this list and

asked Caramadre to confirm that he fully understood all the

proceedings and that his medications did not impede his

understanding. Caramadre and his counsel confirmed both points.

Before us, Caramadre complains that the court failed to

probe deeply enough into the effects of his medications.

Relatedly, he suggests that his counsel should not have vouched

for his clarity of mind without consulting his physicians.

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 We start with first principles. Where, as here, a

defendant confirms during a change-of-plea colloquy that he is

taking medication, the district court has a duty to inquire into

the effects of the medication and the defendant's capacity to plead

guilty. See United States v. Savinon-Acosta, 232 F.3d 265, 268

(1st Cir. 2000). The dispositive feature of this inquiry is

whether the medication is in fact causing such an impairment. See

id. A district court often may satisfy this basic obligation when

it queries a defendant about whether the medication he is taking

has impaired his ability to understand the proceedings. See United

States v. Morrisette, 429 F.3d 318, 322 (1st Cir. 2005); Cody v.

United States, 249 F.3d 47, 53 (1st Cir. 2001); see also United

States v. Román-Orench, ___ F. App'x ___, ___ (1st Cir. 2015) [No.

13-2082, slip op. at 4]. But context is crucial, and in some

situations the court's obligation does not end there. Thus, the

"better practice" is for a district court "to identify which drugs

a defendant is taking, how recently they have been taken and in

what quantity, and (so far as possible) the purpose and

consequences." Savinon-Acosta, 232 F.3d at 268.

Here, the district court inquired into what medications

Caramadre was taking and Caramadre's ability to understand the

proceedings. The court also elicited from Caramadre an assurance

that his medications were not preventing him from participating

fully in the change-of-plea colloquy. In addition, the court had

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some other assurances. For one thing, Caramadre's behavior during

the change-of-plea colloquy corroborated his statements to the

court. For another thing, Caramadre's lawyer vouched for his

client's ability to understand the proceedings. A district court

may reasonably rely on the assurances of the defendant and his

counsel to help to ascertain the defendant's mental clarity.5 See

id. at 269. Finally, the court's duty to delve into the specifics

of a defendant's medications is relaxed to some degree where, as

here, there are no "other identifiable red flags in [the

defendant's] performance at the hearing." United States v. Kenney,

756 F.3d 36, 47 (1st Cir.), cert. denied, 135 S. Ct. 770 (2014).

To be sure, Caramadre had an impressive list of

medications, along with a history of depression and anxiety. Given

these facts, we think that the district court's handling of this

issue was marginal at best. A deeper dive into the effects of the

5
We do not accept Caramadre's suggestion that a lawyer must
consult with his client's mental health providers before making
such a representation to the court. Caramadre can cite no
authority for such a proposition because none exists. This is not
surprising: a lawyer works closely with a criminal defendant and
is typically in a good position to make an informed lay judgment
about whether the defendant understands the proceedings and
appreciates their import. See United States v. Pellerito, 878
F.2d 1535, 1542 & n.5 (1st Cir. 1989); see also Miranda-González
v. United States, 181 F.3d 164, 167 (1st Cir. 1999) (noting that
district court "took great pains to ensure fairness" in asking
both the prosecutor and defense counsel about the defendant's
ability to enter a guilty plea "in light of the disclosures
concerning his medication and recent psychiatric history").

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medications and Caramadre's psychiatric history may well have been

warranted. But our standard of review is deferential, see

Morrisette, 429 F.3d at 322, and in all events, two other sets of

considerations impel us to find that any error was harmless.

First, Caramadre has never made an explicit claim that

either his medication regime or his history of depression and

anxiety actually impaired his ability to understand the change-

of-plea colloquy. Though he vigorously assails the manner in which

the district court conducted that colloquy, his assignments of

procedural error are untethered to any actual consequences. As

such, they cannot ground his claim that the district court abused

its discretion in denying his plea-withdrawal motion. See Savinon-

Acosta, 232 F.3d at 268 (explaining that "merely technical failures

to comply with Rule 11 are often found harmless"); United States

v. Pellerito, 878 F.2d 1535, 1542 (1st Cir. 1989) (explaining that

"[t]here must be some evidence that the medication affected [the

defendant's] rationality").

Second, the lengthy evidentiary hearing that the

district court conducted on Caramadre's plea-withdrawal motion

yielded fully supportable findings that refuted his claim that

either his medications or his mental health history tainted his

plea. As discussed in greater detail infra, the doctors who

submitted affidavits regarding Caramadre's mental state in the

period leading up to his guilty plea failed to cast any plausible

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doubt on his rationality. Furthermore, Caramadre's former

attorneys testified extensively about his overall lucidity and

clarity of mind.

That completes this phase of our inquiry. Viewing the

record as a whole, we can discern no reversible error in the

district court's Rule 11 colloquy.

2. Caramadre's Stated Reasons. Caramadre next advances

a slew of arguments underpinning his claim that the district court

improvidently rejected his stated reasons for seeking to withdraw

his plea. We briefly address the least frivolous of these

arguments — that he was not competent at the time of the plea

hearing, that his counsel provided ineffective assistance, and

that he believed that he would be dissembling if he entered a

guilty plea — and otherwise rely on the district court's cogent

analysis. See Caramadre, 957 F. Supp. 2d at 181-86.

Caramadre argues that his mental state was too fragile

to permit him to enter a valid plea. He attributes his instability

both to his depressed mental state and to his wife's emotional

breakdown on the second day of trial. He claims that the

confluence of these conditions catapulted him into a "downward

spiral," rendering him incompetent to enter a guilty plea.

To succeed on such a claim, Caramadre must show more

than a mere "sensitiv[ity] to external considerations."

Pellerito, 878 F.2d at 1541. Rather, he must show that his

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decision to change his plea occurred under so much duress that it

could no longer be considered a product of free will. See id.

In an attempt to carry this burden, Caramadre submitted

affidavits from two of his doctors, an affidavit from his wife's

doctor, and an affidavit from a psychiatric consultant. The

district court reviewed these submissions and found them wanting.

See Caramadre, 957 F. Supp. 2d at 169-71. After careful

consideration, we conclude that this finding was well within the

encincture of the court's discretion.

The affidavits of Caramadre's doctors were of little

force. While they purported to describe his mental state during

the four days of trial, neither doctor had evaluated Caramadre (or

even spoken to him) during that period. By the same token, the

doctor who cared for Mrs. Caramadre ventured no opinion regarding

Caramadre's mental health.

The affidavit of Caramadre's retained expert was more to

the point: that physician stated that it was "reasonable to

conclude" that Caramadre was not competent to plead. But even

this witness did not opine that Caramadre in fact lacked the

capacity to plead.

We think it is significant that the district court, in

refusing to find Caramadre incompetent to plead based on these

four affidavits, did not view them in a vacuum. The court

appropriately considered, for example, Caramadre's own

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participation in negotiating the terms of the plea agreement, see

United States v. Ramos, 810 F.2d 308, 313 (1st Cir. 1987); the

conclusions of Caramadre's principal lawyer about his client's

mental clarity, see Savinon-Acosta, 232 F.3d at 269; and the

court's own observations of Caramadre over a prolonged period, see

United States v. Buckley, 847 F.2d 991, 998-1000 (1st Cir. 1988);

see also Román-Orench, ___ F. App'x at ___ [slip op. at 5].

Balancing the tepid evidence contained in the affidavits

against the court's first-hand knowledge of what had transpired,

we descry no abuse of discretion in its determination that

Caramadre's assertion of incompetence was not a fair and just

reason for withdrawing his plea. When all is said and done,

Caramadre is simply complaining that the district court weighed

his proffered evidence less heavily than he would have liked. That

is not enough: a district court does not abuse its discretion when

it evaluates a body of evidence, chooses between two inferences

which, though conflicting, are both rational, and offers plausible

reasons for its choice. See Pellerito, 878 F.2d at 1538.

The case law supplies a final check. When the results

of the evidentiary hearing are considered, Caramadre's case is not

materially different from the mine-run of analogous cases. See,

e.g., Santiago Miranda, 654 F.3d at 137-39 (upholding plea where

defendant argued involuntariness based on prescription drug abuse,

lack of sleep, and familial pressure); United States v. Sousa, 468

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F.3d 42, 46 (1st Cir. 2006) (upholding plea despite defendant's

argument that "distressing news" about wife's terminal illness

impaired his capacity to plead); Aker, 181 F.3d at 170-71

(upholding plea notwithstanding defendant's claim of depression

over wife's death and inability to sleep); Pellerito, 878 F.2d at

1541-42 (upholding plea where defendant claimed "an agitated

emotional state" along with abuse of anti-anxiety drugs).

Normally, such situations are fact-specific and, thus, are apt to

be grist for the district court's mill. See Merritt, 755 F.3d at

9 (noting that "a district court's close relationship to the plea

process affords it a superior coign of vantage"); Pellerito, 878

F.2d at 1538 (noting that, when "[c]onfronted with an attempt at

plea retraction, the trial judge must make an idiocratic,

particularistic, factbound assessment"). Based on the teachings

of the case law, we will not second-guess the trier's informed

determination of the voluntariness of the defendant's plea without

good reason. See United States v. Austin, 948 F.2d 783, 786 (1st

Cir. 1991). In this instance, we discern no good reason: the

district court reviewed all of the evidence and supportably found

that neither Caramadre's history of depression and anxiety nor his

wife's breakdown comprised a fair and just reason allowing him to

retract his plea. See Caramadre, 957 F. Supp. 2d at 168-74.

Caramadre has offered nothing that would give us a principled basis

to second-guess this finding.

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 3. Ineffective Assistance of Counsel. Caramadre goes

on to contend that he should have been allowed to withdraw his

guilty plea because his first set of attorneys provided ineffective

assistance to him. Once he perceived his attorneys' ineptitude at

trial, his thesis runs, he "sudden[ly]" came to the realization

that he had no choice but to plead guilty and throw himself upon

the mercy of the court. This contention is hopeless.

The court below accurately rehearsed the standard for

assessing an ineffective assistance of counsel claim in the context

of a plea-withdrawal motion. See Caramadre, 957 F. Supp. 2d at

174-75. In fine, the challenger must demonstrate that counsel's

performance fell below an objective threshold of reasonable care

and that this deficient performance prejudiced him. See Turner v.

United States, 699 F.3d 578, 584 (1st Cir. 2012); see generally

Strickland v. Washington, 466 U.S. 668, 687 (1984). In the plea-

withdrawal context, the prejudice element requires a showing of "a

reasonable probability that, but for counsel's errors, he would

not have pleaded guilty and would have insisted on going to trial."

Moreno-Espada v. United States, 666 F.3d 60, 64 (1st Cir. 2012)

(quoting United States v. Colón-Torres, 382 F.3d 76, 86 (1st Cir.

2004)); see United States v. Isom, 85 F.3d 831, 837 (1st Cir.

1996).

Although the district court correctly explained that

"[c]ounsel's alleged ineffectiveness is only relevant to the

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extent it affected Caramadre's decision to plead guilty,"

Caramadre, 957 F. Supp. 2d at 174 n.9, its analysis focused on the

trial performance of Caramadre's lawyers (specifically, their

purported failure to investigate witnesses and cross-examine them

adequately). This focus was misplaced: when a defendant pleads

guilty and later tries to withdraw his plea, the ineffective

assistance of counsel inquiry must focus on his lawyer's

preparation, advice, and overall performance in counseling the

defendant about whether to plead guilty. See Austin, 948 F.2d at

786-87; United States v. DeSimone, 736 F. Supp. 2d 477, 486 (D.R.I.

2010).

This is not to suggest that trial performance is wholly

irrelevant to the ineffective assistance of counsel inquiry in the

guilty plea context. A lawyer's trial performance may be so

deficient that it compels a defendant to plead under duress. But

such trial performance is relevant to the ineffective assistance

inquiry only to the extent that it affects the knowing and

voluntary nature of a defendant's decision to plead guilty.

Given this legal landscape, the district court's focus

on the trial performance of Caramadre's lawyers was misplaced.

Caramadre did not tie his counsel's trial performance to the

voluntariness of his guilty plea and, thus, the meat of his

argument — that he would not have pleaded guilty had his counsel

performed better at trial — is inapposite. By his framing of this

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issue, Caramadre attempted to shoehorn a claim of ineffective

assistance at trial into a plea-withdrawal inquiry. That attempt

necessarily fails.6 See Isom, 85 F.3d at 837; Austin, 948 F.2d at

786.

Caramadre's assignment of error collapses when we

reorient the ineffective assistance of counsel inquiry along the

proper axis. The record does not support a claim that, but for

his attorneys' poor advice about the desirability of a plea,

Caramadre "would not have pleaded guilty and would have insisted

on going to trial." Moreno-Espada, 666 F.3d at 64 (quoting Colón-

Torres, 382 F.3d at 86). Nor does Caramadre explain why the advice

he was given was deficient. So, too, he wholly neglects to explain

why, given better advice, he would have wanted the trial to

continue.

That ends this aspect of the matter. Caramadre has not

offered any support for the proposition that his attorneys were

deficient in advising him about his guilty plea. Nor did he make

any developed argument to this effect before the district court.

6At any rate, the district court concluded that Caramadre's
lawyers had performed ably, see Caramadre, 957 F. Supp. 2d at 175,
and perscrutation of the record supports that conclusion. Even if
Caramadre's arguments can somehow be construed as suggesting that
his lawyers' trial performance rendered his plea involuntary, we
reject this suggestion.

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Any such argument is, therefore, doubly waived. See United States

v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

4. The Truth, the Whole Truth, and Nothing but the

Truth. Caramadre has one last shot in his sling. Alford pleas

aside,7 a defendant who wishes to plead guilty to a criminal charge

must admit that he committed the acts upon which the charge is

predicated. See United States v. Broce, 488 U.S. 563, 570 (1989).

That admission must be truthful; mere lip service is not enough.

Here, Caramadre admitted his guilt when he changed his plea. In

his plea withdrawal motion, however, he reversed course and claimed

that he had lied with the knowledge and encouragement of his

lawyers. The district court rejected this claim, see Caramadre,

957 F. Supp. 2d at 185, and so do we.

Caramadre attempts to bolster his version of events by

describing two communications that he had with his attorneys. For

one thing, prior to the change-of-plea hearing, Caramadre sent an

e-mail to one of his former lawyers inquiring about the possibility

of an Alford plea, which "would eliminate m[y] needing to lie."

7 An Alford plea occurs when a defendant enters a guilty plea
without admitting guilt. See United States v. Bierd, 217 F.3d 15,
17 n.1 (1st Cir. 2000). This procedure draws its name from the
Supreme Court decision that sanctioned it. See North Carolina v.
Alford, 400 U.S. 25 (1970). There, the Court held that "[a]n
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." Id. at 37.

- 21 -
For another thing, Caramadre says that he told one of his former

attorneys on the night before he changed his plea that he would

"be lying" if he admitted guilt.

Confessing to the commission of a felony does not always

come easily (particularly for a person who, like Caramadre, had

been holding himself out as a pillar of the community and living

a life of high-profile respectability). It is, therefore, not

uncommon for persons accused of reprehensible crimes to waffle

even when discussing the extent of their involvement with their

counsel. That may well be what happened here: in conversations

with his counsel, Caramadre equivocated from time to time about

his guilt.

The cheese became binding, however, when the change-of-

plea hearing began and Caramadre faced the district court. That

is, literally and figuratively, the moment of truth — and in this

instance, Caramadre unhesitatingly agreed under oath with the

prosecutor's version of the relevant events and unambiguously

admitted his guilt. When Caramadre sang a much different song

during the plea-withdrawal hearing, the district court determined

that he was prevaricating then and that he had told the truth at

the change-of-plea hearing. This determination was nothing more

or less than a credibility call and, as such, is deserving of

considerable deference. See, e.g., United States v. Patrone, 948

- 22 -
F.2d 813, 816 (1st Cir. 1991); United States v. Green, 887 F.2d

25, 28 (1st Cir. 1989).

In addition, the court's determination was consistent

with the testimony of Caramadre's former attorneys. They

vouchsafed that, based on their investigation and Caramadre's

admissions to them over the course of their extended representation

of him, they were convinced that he was factually guilty and that

his admissions of guilt at the change-of-plea hearing were genuine.

To cinch the matter, Caramadre's former attorneys "emphasized [to

Caramadre] the importance and necessity of telling the truth and

not lying to the [c]ourt" at the change-of-plea hearing.

Caramadre, 957 F. Supp. 2d at 185. The district court credited

the former attorneys' testimony, see id., and the record contains

no compelling reason for rejecting that assessment.

In an effort to blunt the force of this reasoning,

Caramadre posits that his case is analogous to United States v.

DeSimone, 736 F. Supp. 2d 477 (D.R.I. 2010). There, the defendant

did not agree with the recitation of the facts contained in his

plea agreement and asked his attorney whether he had to lie in

order to plead guilty. See id. at 479-80. The attorney "left

[the] [d]efendant with the impression that lying to the [c]ourt

was necessary to get his plea accepted." Id. at 486. The defendant

proceeded with his plea but later sought to retract it. The

- 23 -
district court allowed him to do so, concluding that "a fair and

just reason" existed for withdrawing the plea. Id.

The court below distinguished DeSimone on a number of

grounds.8 See Caramadre, 957 F. Supp. 2d at 185. We agree that

the two cases are not fair congeners. Unlike in DeSimone,

Caramadre did not take issue with the prosecution's version of the

facts when he changed his plea; and more importantly, Caramadre's

former lawyers testified that they had instructed him not to lie.

The district court not only found this testimony credible but also

accepted the lawyers' testimony that they would not have allowed

Caramadre to plead guilty if they thought that doing so would

require him to prevaricate. See Caramadre, 957 F. Supp. 2d at

185.

C. Bias.

Caramadre insists that the district court's refusal to

permit him to withdraw his guilty plea was infected by judicial

bias. He concentrates his fire principally on the "text and tenor"

8
Indeed, the court went a step further: it suggested that
Caramadre had familiarized himself with the DeSimone case and had
deliberately professed his innocence to his attorneys as a way of
negating his guilty plea and later obtaining a new trial, severed
from his codefendant. See Caramadre, 957 F. Supp. 2d at 184-85.
We take no view of this suggestion: regardless of whether or not
Caramadre sought to mimic DeSimone, there was no abuse of
discretion in the district court's determination that whatever
professions of innocence Caramadre may from time to time have made
did not add up to a fair and just reason for withdrawing his plea.

- 24 -
of the district court's rescript. We begin our discussion with

the government's contention that Caramadre's bias claim has been

waived and then proceed to address the components of that claim.

1. Waiver and Standard of Review. Almost seven months

elapsed between the denial of Caramadre's plea-withdrawal motion

and his sentencing. During this period, he never sought to have

the district court recuse itself. The government's argument that

this inaction constituted a waiver of the bias claim has some

support in the case law. See, e.g., United States v. DiPina, 230

F.3d 477, 486 (1st Cir. 2000) (finding waiver when defendant had

neither moved for recusal nor otherwise raised claim of judicial

bias in district court). But other cases indicate that plain error

review may be appropriate when a party raises a bias-based recusal

argument for the first time on appeal. See, e.g., United States

v. Reynolds, 646 F.3d 63, 74 (1st Cir. 2011); United States v.

Cruz-Mercado, 360 F.3d 30, 36 (1st Cir. 2004).

We are sensitive to a judge's unflagging duty to be

impartial. Given the importance of impartiality, we think that

the better rule is that a claim of judicial bias, raised for the

first time on appeal, should be reviewed for plain error.

Consequently, we reject the government's waiver argument and hold

instead that Caramadre's bias-based recusal claim engenders plain

error review.

- 25 -
 Plain error review requires a four-part showing: "(1)

that an error occurred (2) which was clear or obvious and which

not only (3) affected the defendant's substantial rights, but also

(4) seriously impaired the fairness, integrity, or public

reputation of judicial proceedings." United States v. Duarte, 246

F.3d 56, 60 (1st Cir. 2001).

2. Merits. Judges have a duty to sit unless some

compelling reason for recusal exists. See United States v. Snyder,

235 F.3d 42, 46 (1st Cir. 2000). Not every hint of bias is

disqualifying: after all, a judge is expected to make judgments,

a process which entails forming opinions about the credibility of

witnesses and the intrinsic merit (or lack of merit) of cases that

he hears. See Liteky v. United States, 510 U.S. 540, 550-51

(1994). In order for us to find disqualifying bias and overrule

a judge's decision (explicit or implicit) that no sound basis for

his recusal exists, an appellant must show that the judge's actions

were "so extreme as to display [a] clear inability to render fair

judgment." Id. at 551.

To support his bias-based recusal claim, Caramadre

relies on a string of strongly worded statements excerpted from

the district court's rescript denying his motion to withdraw.

Specifically, he points to the following:

 the district court's characterization of his plea-withdrawal

motion as "entirely meritless, bordering on frivolous";

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  the district court's conclusion that none of the evidence

presented by Caramadre — including his medical affidavits —

"even remotely support[ed]" his claim of incompetence;

 the district court's dismissive treatment of Caramadre's

ineffective assistance of counsel claim;

 the district court's intimation that Caramadre was suggesting

that his former attorneys deliberately undermined his defense

in order to pressure him into pleading guilty;

 the district court's statement that Caramadre's plea-

withdrawal motion was "an incredibly cynical and disturbing

effort to manipulate the court and the criminal justice

system"; and

 the district court's suggestion that the actions of

Caramadre's new counsel might subject him to disciplinary

review.

These statements, taken collectively, show that the

district court did not think much of Caramadre's plea-withdrawal

motion. Admittedly, the court couched its findings and conclusions

in blunt language. But trial judges are not required either to

mince words or to sugar-coat their views. See Logue v. Dore, 103

F.3d 1040, 1045 (1st Cir. 1997). Blunt language, without more,

does not translate into a showing of judicial bias. See United

States v. Rodríguez-Rivera, 473 F.3d 21, 27-28 (1st Cir. 2007).

- 27 -
 The Supreme Court has taught that "remarks during the

course of trial that are critical or disapproving of, or even

hostile to, counsel, the parties, or their cases" are usually

insufficient to prove bias. Liteky, 510 U.S. at 555. The same is

true of a court's "expressions of impatience, dissatisfaction,

annoyance, and even anger." Id. at 555-56. The case at hand falls

within these general rules, not within the long-odds exceptions to

them. Though the court below employed forceful rhetoric, its

comments, without exception, are supported by a reasonable view of

the record evidence. The court did not cross the Liteky line.

This conclusion is borne out by contrasting the district

court's rhetoric with words and conduct that have been held

insufficient to require recusal. See, e.g., United States v.

Ofray-Campos, 534 F.3d 1, 32-34 (1st Cir. 2008) (finding no

judicial bias though judge, inter alia, interrupted counsel during

opening and closing statements, told counsel to "shut up" during

a sidebar conference, and made demeaning remarks about counsel's

performance); Rodríguez-Rivera, 473 F.3d at 26-29 (finding no

judicial bias though judge, inter alia, reprimanded counsel in

open court, commented unfavorably on counsel's objections, and

"made a series of unpredictable and adverse rulings" against the

defendant); DiPina, 230 F.3d at 486 (finding no judicial bias

though judge characterized defendant's legal arguments as

- 28 -
"worthless" and remarked on his "criminal conduct"). By

comparison, the rhetoric challenged here easily passes muster.

We summarize succinctly. While Caramadre has directed

a barrage of epithets at the district court, he has fallen far

short of showing that the court was biased against him. Put

another way, the district court's unflattering assessment of

Caramadre's litigation strategy and substantive claims does not

sink to the level of disqualifying bias. On this record, we simply

cannot find that the district court's words displayed an inability

to render a fair judgment. Cf. Christian Recorder—Proverbs (Mar.

22, 1862) ("Sticks and stones will break my bones, but words will

never harm me."). We conclude, therefore, that there was no error,

plain or otherwise, in the district court's failure to recuse

itself sua sponte.

3. Rule 10(c). This brings to the fore Caramadre's

appeal of the district court's disposition of his Rule 10(c)

motion. Caramadre asseverates that statements made by the district

court during an unrecorded and untranscribed chambers conference

held on January 15, 2013, show that the court pre-judged his plea-

withdrawal motion and exhibited bias against him.

We set the stage. Caramadre's version of what transpired

at the chambers conference is contained in an affidavit of

successor counsel, appended to his Rule 10(c) motion. The district

- 29 -
court discarded this account and substituted its own summary of

what was said and done.

Caramadre challenges the court's substituted version.

Relying on his lawyer's affidavit, he attributes certain

statements to the court. A representative sampling follows:

 that the first week of trial had been a "complete, unmitigated

disaster" for Caramadre;

 that the government had made a "compelling, overwhelming

presentation of evidence of guilt" during the four days of

trial;

 that had the trial continued, it would have been from

Caramadre's point of view, "a train wreck for the next three

months"; and

 that Caramadre had changed his plea because "he was getting

killed at trial."

Federal Rule of Appellate Procedure 10(c) provides:

If the transcript of a hearing or trial is
unavailable, the appellant may prepare a statement of
the evidence or proceedings from the best available
means, including the appellant's recollection. The
statement must be served on the appellee, who may serve
objections or proposed amendments within 14 days after
being served. The statement and any objections or
proposed amendments must then be submitted to the
district court for settlement and approval. As settled
and approved, the statement must be included by the
district clerk in the record on appeal.

As a threshold matter, the government suggests that,

because Caramadre appealed the district court's Rule 10(c) ruling

- 30 -
separately, we lack jurisdiction over that appeal. We do not

agree. The district court's Rule 10(c) order was a final order,

filed after Caramadre's conviction and sentence had already been

appealed. It was, therefore, appealable under 28 U.S.C. § 1291.

This makes perfect sense: the core purpose of Rule 10(c) would be

frustrated if a district court's version of events was inoculated

against judicial review. See Bergerco, U.S.A. v. Shipping Corp.

of India, Ltd., 896 F.2d 1210, 1214-15 (9th Cir. 1990); cf. United

States v. Mori, 444 F.2d 240, 246 (5th Cir. 1971) (explaining that

a district court may consider a motion to correct the record under

Federal Rule of Appellate Procedure 10(e) "even after appeal has

been taken").

We review a district court's disposition of a Rule 10(c)

motion for abuse of discretion. Cf. United States v. Pagán-Ferrer,

736 F.3d 573, 582 (1st Cir. 2013), cert. denied, sub nom. Vidal-

Maldonado v. United States, 134 S. Ct. 2839 (2014) (reviewing

denial of Rule 10(e) motion for abuse of discretion). The movant

(here, Caramadre) must establish that "the trial court's account

is patently unreasonable or deliberately false," Rogan v. Menino,

175 F.3d 75, 80 (1st Cir. 1999), and that this account prejudiced

the presentation of his claims on appeal, see In re Cambridge

Literary Props., Ltd., 271 F.3d 348, 349 (1st Cir. 2001).

Caramadre upbraids the district court for relying on its

own recollection of the chambers conference rather than accepting

- 31 -
the version of events proffered by Caramadre's counsel. Relatedly,

he submits that the district court improvidently expanded the

record by adding explanations for why it made certain statements.

Caramadre's insistence that the district court had no

right to set forth its own version of events reads Rule 10(c) in

too grudging a manner. In terms, the rule provides that once an

appellant has "prepare[d] a statement of the evidence or

proceedings from the best available means," the statement must "be

submitted to the district court for settlement and approval." Fed.

R. App. P. 10(c). The phrase "settlement and approval" is generous

in its scope, and nothing prohibits a court from drawing on its

own memory of events in the "settlement and approval" process.

Indeed, it would be folly for a judge to close his eyes to case-

related matters within his personal knowledge. We hold, therefore,

that a district court may rely on its own recollection of relevant

events in settling and approving a proposed Rule 10(c) statement.

See United States v. Kenney, 911 F.2d 315, 317-18 (9th Cir. 1990);

see also United States v. Brown, 202 F.3d 691, 696-97, 697 n.8

(4th Cir. 2000) (noting approvingly that in weighing parties'

competing versions of what occurred at a hearing, district court

necessarily relied on its own recollection).

Caramadre also argues that the district court was

obliged to adopt his version of the facts because his counsel's

notes were "contemporaneously recorded" and the government never

- 32 -
challenged their accuracy. But a rule to this effect would reduce

the district court's role to that of a rubber stamp, and we do not

think that the law imposes so counterintuitive a requirement. A

case in point is United States v. Keskey, 863 F.2d 474, 478 (7th

Cir. 1988), in which the Seventh Circuit rejected a similar

argument. Simply put, the district court was not obliged to

elevate the lawyer's notes over its own recollection.

Caramadre's contention that the district court had no

authority to elaborate on what was said is likewise unavailing.

Common sense suggests that, in the Rule 10(c) settlement and

approval process, a district court must have the power to

contextualize what was said. And though the district court's Rule

10(c) statement goes beyond mere contextualization, that overreach

makes no difference here: even were we to accept lock, stock, and

barrel the version of events limned in Caramadre's Rule 10(c)

statement, Caramadre's claim of judicial bias would fail. The

carefully culled statements reflect nothing more than the district

court's decidedly negative evaluation of Caramadre's attempt to

withdraw his plea. Those statements are insufficient to

demonstrate that the district court harbored a disqualifying bias

against Caramadre. See supra Part II(C)(2).

III. SENTENCING

Caramadre attempts to challenge his sentence on two

grounds. He asserts both that the district court engaged in

- 33 -
vindictive sentencing and that its order for $46,000,000 in

restitution is insupportable. The government submits that these

claims are barred by the waiver-of-appeal provision contained in

Caramadre's plea agreement,9 and we agree. We explain briefly.

Our case law makes pellucid that "[a] defendant who

waives his right to appeal and thereafter attempts to avoid the

effect of the waiver must confront the waiver head-on." United

States v. Miliano, 480 F.3d 605, 608 (1st Cir. 2007). Such waivers

are "presumptively valid," subject to three "stringent criteria."

United States v. Teeter, 257 F.3d 14, 23, 25 (1st Cir. 2001).

First, the plea agreement must clearly "elucidat[e] the waiver and

delineat[e] its scope." Id. at 24. Second, the court's inquiries

at the change-of-plea colloquy must "suffice[] to ensure that the

defendant freely and intelligently agreed to waive [his] right to

appeal." Id. at 24. Third, pretermitting the right to appeal

must not result in a "miscarriage of justice." Id. at 25.

9 There is a strong argument that the appeal waiver in
Caramadre's plea agreement likewise bars appellate review of the
district court's denial of the plea withdrawal motion. See United
States v. Alcala, 678 F.3d 574, 578 (7th Cir. 2012) (holding as a
matter of first impression that district court's denial of motion
to withdraw a guilty plea fell within scope of appellate waiver);
United States v. Toth, 668 F.3d 374, 378-79 (6th Cir. 2012)
(applying appeal waiver to defendant's motion to withdraw and
collecting cases from other circuits). We have not, however,
explored that terrain here because the government never made this
argument and thus has waived any application of the appeal waiver
to the district court's denial of Caramadre's plea withdrawal
motion.

- 34 -
 Caramadre's plea agreement stated in pertinent part

that: "Defendant hereby waives [his] right to appeal the

convictions and sentences imposed by the Court, if the sentences

imposed by the Court are at or below the government's maximum

recommended sentence." This language is direct and to the point;

it clearly elucidates the waiver. What is more, the district court

took pains at the change-of-plea hearing to ensure that Caramadre

understood the effect of the waiver. Nor does Caramadre argue

that his term of immurement exceeded the boundaries adumbrated in

the plea agreement (which limited any prison sentence to a maximum

of ten years). Withal, Caramadre tries to skirt the waiver in

three different ways. None of his arguments is convincing.

Caramadre's first sortie is stillborn. He argues that

the plea agreement as a whole is invalid because he should have

been allowed to withdraw his plea. We already have explained why

the premise of this argument is wrong, see supra Part II, so we

say no more about it.

Caramadre's most loudly bruited claim implicates the

scope of the appeal waiver. He posits that the plea agreement did

not foreclose him from appealing the restitution order. In

support, he notes the lack of any explicit reference to restitution

in the waiver-of-appeal provision; and he points to language

elsewhere in the plea agreement stating that the amount of

restitution would be determined in the future. Thus, Caramadre

- 35 -
says, the restitution order does not fall within the scope of the

waiver-of-appeal provision.

This claim, though forcefully presented, runs headlong

into our decision in United States v. Okoye, 731 F.3d 46 (1st Cir.

2013). There, the plea agreement included a waiver-of-appeal

provision similar to Caramadre's: neither provision made any

explicit mention of restitution. See id. at 48. We nonetheless

concluded that the waiver provision applied to a restitution order

imposed as part of the defendant's sentence. See id. at 49-50.

We explained that the plea agreement as a whole "unambiguously

established that [the defendant's] sentence would include

'restitution in the amount of loss'" and, thus, the appeal waiver

extended to the restitution award. Id. at 49.

Okoye and this case are on all fours. Caramadre resists

this obvious congruence, though, trying to distinguish Okoye on

the ground that the plea agreement there contemplated a specific

amount of restitution whereas the plea agreement here stated that

the amount of restitution was yet to be determined. This is a

distinction without a difference. That Caramadre's plea agreement

did not specify a specific restitutionary amount has no bearing at

all on whether restitution should properly be considered part of

Caramadre's "sentence."

At the expense of carting coal to Newcastle, we add that

the waiver-of-appeal provision applies even more clearly here than

- 36 -
in Okoye. There, the waiver provision stated that the defendant

"[would] not file a direct appeal nor collaterally challenge any

prison sentence of 27 months or less." Id. at 48 (emphasis in

original). The use of the modifying adjective "prison" gave rise

to a colorable argument that the portion of the sentence to which

the waiver applied did not include restitution. The defendant

made this argument, and the Okoye court debunked it. See id. at

49-50. This argument is not available to Caramadre; the waiver-

of-appeal provision contains no comparable modifier.

That restitution is a part of Caramadre's sentence

scarcely can be doubted. See 18 U.S.C. § 3663A(a)(1); United

States v. Salas-Fernández, 620 F.3d 45, 47 & n.2 (1st Cir. 2010).

Here, moreover, Caramadre's plea agreement affirms that the

government was "free to recommend any combination of supervised

release, fines, and restitution which it deems appropriate." The

clear implication of this statement is that restitution would be

part of Caramadre's sentence.10

In a last-ditch effort to elude the grasp of the appeal

waiver, Caramadre invokes the miscarriage of justice exception.

10
We have declined to hold that an appeal waiver that omits
any mention of restitution necessarily applies to restitution
orders. See United States v. Sánchez-Maldonado, 737 F.3d 826,
827-28, 828 n.1 (1st Cir. 2013). But a court may conclude, based
on a holistic view of such a plea agreement and the attendant
circumstances, that a particular waiver-of-appeal provision was
meant to extend to restitution orders. This is such a case.

- 37 -
See Teeter, 257 F.3d at 25-26. This assignment of error need not

detain us.

The miscarriage of justice exception is to be applied

"sparingly and without undue generosity." Id. at 26. It is not

intended to redress "mere 'garden-variety' claims of error."

United States v. Rivera-López, 736 F.3d 633, 635 (1st Cir. 2013)

(quoting Teeter, 257 F.3d at 26). Caramadre's claim of vindictive

sentencing is reminiscent of the bias claims that we already have

rejected, see supra Part II(C), and he has made no showing that

this claim comes within the narrow confines of the miscarriage of

justice exception.

In the first place, the plea agreement capped

Caramadre's exposure with respect to incarceration at ten years.

This was considerably below the top of his guideline sentencing

range. Even so, the district court sentenced him to only a six-

year prison term. Surely, that was not a miscarriage of justice.

His plaint that the restitution amount is similarly

excessive is unimpressive. That amount was calculated by the

magistrate judge after a three-day evidentiary hearing and

confirmed by the district court. To cinch the matter, the

$46,000,000 total, though large, has ample footing in the record.

To be sure, Caramadre has left no doubt but that he

considers his sentence "unjust." But a defendant's

dissatisfaction with his sentence, no matter how profound, cannot

- 38 -
constitute a basis for circumventing a waiver-of-appeal provision

to which he agreed. See United States v. Edelen, 539 F.3d 83, 86-

87 (1st Cir. 2008). To allow Caramadre to frustrate his appeal

waiver in the circumstances of this case would cheat the government

of one of the salient benefits of the bargain that it struck with

Caramadre.

IV. CONCLUSION

To recapitulate, Caramadre — ably represented by

experienced counsel — elected to plead guilty to serious charges.

When he thereafter had a change of heart and sought to retract his

guilty plea, the district court gave him every opportunity to

demonstrate a fair and just reason for doing so. The district

court's determination that Caramadre failed in this effort was

neither infected by legal error nor constituted an abuse of

discretion. The sentencing determinations that followed are

insulated from review because Caramadre, appropriately warned,

waived his right to appeal his sentence as part of the plea

agreement that he negotiated and signed.

We need go no further. For the reasons elucidated above,

Caramadre's appeals are futile. He has reaped what he has sown.

Affirmed.

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