United States v. Gates

United States Court of Appeals
For the First Circuit

No. 10-2163

UNITED STATES OF AMERICA,

Appellee,

v.

FREDERICK GATES,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Lynch, Chief Judge,
Selya and Howard, Circuit Judges.

Todd A. Bussert, with whom Frost Bussert, LLC was on brief,
for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.

March 1, 2013
 SELYA, Circuit Judge. Appalled by his conviction and

sentence on drug-trafficking charges, defendant-appellant Frederick

Gates seeks to wipe the slate clean. His appeal presents, among

other issues, important questions of first impression in this

circuit about the operation of the Speedy Trial Act (STA), 18

U.S.C. § 3161.

The defendant's arguments are forcefully advanced but,

when their reverberations subside, they prove to be untenable.

Accordingly, we affirm the judgment below.

I. TRAVEL OF THE CASE

On February 27, 2008, a federal grand jury sitting in the

District of Maine indicted the defendant for conspiring to

distribute cocaine base (crack cocaine) and for the substantive

offense of possessing the drug with the intent to distribute it.

See 21 U.S.C. §§ 841(a)(1), 846. In a superseding indictment, the

grand jury expanded the temporal scope of the charged conspiracy.

The defendant initially maintained his innocence.

Through a succession of court-appointed attorneys, he filed a

salmagundi of pretrial motions, including motions to suppress

certain evidence and to dismiss the indictment on speedy trial

grounds. When all of these motions came to naught, see United

States v. Gates (Gates I), No. 08-42-P-H, 2008 WL 5382285 (D. Me.

Dec. 19, 2008) (motions to suppress); United States v. Gates (Gates

-2-
II), 650 F. Supp. 2d 81 (D. Me. 2009) (motion to dismiss), the case

went to trial.

On the second trial day, the defendant shifted direction

and entered a conditional guilty plea. Fed. R. Crim. P. 11(a)(2).

The tendered plea reserved the right to contest the district

court's earlier denials of his motions to suppress and to dismiss.

The district court accepted the conditional plea and ordered the

preparation of a presentence investigation report (PSI Report).

The probation department issued a draft of the PSI Report

on November 12, 2009. At that juncture, the defendant had a change

of heart: he moved pro se to withdraw his guilty plea and requested

a new (court-appointed) attorney. The district court appointed

replacement counsel — the defendant's fifth attorney — who filed an

amended motion for withdrawal of the plea. The government opposed

the motion and, in due course, the court rejected the defendant's

importunings. See United States v. Gates (Gates III), 698 F. Supp.

2d 212, 219 (D. Me. 2010). The court sentenced the defendant to

serve 240 months in prison. This timely appeal ensued. In this

court, the defendant is represented by yet another court-appointed

attorney (his sixth).

II. ANALYSIS

The defendant's asseverational array has four main

elements. We address them sequentially.

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 A. Suppression.

Prior to trial, the defendant moved to suppress the

fruits of both a motor vehicle stop and a residential search. The

district court referred these motions to a magistrate judge. See

28 U.S.C. § 636(b)(1)(B); Fed. R. Crim. P. 59(b)(1). Following an

evidentiary hearing, the magistrate judge recommended that both

motions be denied. See Gates I, 2008 WL 5382285, at *13. The

district court, over the defendant's objections, adopted the

recommended decision.1 On appeal, the defendant assigns error to

this ruling.

In reviewing a district court's denial of a motion to

suppress, we assess factual findings for clear error. United

States v. Fagan, 577 F.3d 10, 12 (1st Cir. 2009). This deferential

standard requires us to "proceed circumspectly and with regard for

the district court's superior vantage point." United States v.

Espinoza, 490 F.3d 41, 46 (1st Cir. 2007). Conversely, the

district court's answers to abstract questions of law engender de

novo review. See Fagan, 577 F.3d at 12.

1. The Motor Vehicle Stop. Consistent with the standard

of review, we recount the facts relevant to the motor vehicle stop

as supportably found by the district court. At around 11:00 a.m.

1
For ease in exposition, we do not distinguish hereafter
between the magistrate judge and the district judge. Rather, we
take an institutional view and refer to them collectively as "the
district court."

-4-
on September 19, 2007, the defendant was operating a Chevrolet

Tahoe with Maine license tags on Interstate Route 85 in Gaston

County, North Carolina. A patrol officer, William Hall, clocked

the defendant's vehicle at a speed of 77 miles per hour (12 miles

above the posted limit).

Hall initiated a traffic stop. He approached the Tahoe

and asked the defendant, who appeared nervous, for his driver's

license. He then inquired about the defendant's destination.

Hall called for backup and for a canine unit. After

reinforcements arrived, another officer, Brent Roberts, approached

the passenger; in the process, he observed a white object behind

the driver's seat that he thought might be a set of digital scales

and a substance that appeared to be marijuana residue in the center

console.

Officer Hall ran a computerized criminal history search,

which revealed that the defendant had a significant record. At

approximately 11:21 a.m., Hall instructed the defendant to step out

of the vehicle. When the defendant complied, Hall issued him a

warning for the speeding violation. Hall indicated that he would

"like to run [his] canine around [the] car," and the defendant

consented. Hall also conducted a pat-down search, which turned up

a large sum of cash and several cell phones.

The dog subsequently "alerted" to the front passenger

side of the vehicle, thus indicating the presence of contraband.

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When this occurred, the defendant's passenger admitted to having

smoked marijuana and produced a small bag of it.

The defendant says that the avails of this vehicle stop

ought to have been suppressed. We do not agree.

Judicial review of investigatory stops, commonly known as

Terry stops, see Terry v. Ohio, 392 U.S. 1, 19-21 (1968), demands

a two-tiered evaluation.2 First, the stop must be justified at its

inception. See United States v. Ruidíaz, 529 F.3d 25, 28 (1st Cir.

2008). Second, actions undertaken during the stop must be

reasonably related in scope to the stop itself "unless the police

have a basis for expanding their investigation." United States v.

Henderson, 463 F.3d 27, 45 (1st Cir. 2006).

In the Terry milieu, reasonable suspicion is the

touchstone for an initial stop. Ruidíaz, 529 F.3d at 28. While

reasonable suspicion is a fluid concept that lacks precise

definition, it is common ground that "reasonable suspicion requires

more than a mere hunch but less than probable cause." Id. at 29.

An inquiring court must examine the totality of the circumstances

"to see whether the detaining officer ha[d] a particularized and

objective basis for suspecting legal wrongdoing." United States v.

2
North Carolina lies within the geographic borders of the
Fourth Circuit whereas Maine lies within the First Circuit. The
parties squabble over whether Fourth Circuit precedents, rather
than First Circuit precedents, should apply to this issue. This
contretemps suggests a false dichotomy: the legitimacy of a Terry
stop is a matter of federal constitutional law. Geography does not
matter.

-6-
Arvizu, 534 U.S. 266, 273 (2002) (internal quotation marks

omitted).

At the second tier, the court must scrutinize "whether

the officer's subsequent actions were fairly responsive to the

emerging tableau." United States v. Chhien, 266 F.3d 1, 6 (1st

Cir. 2001). Although such actions ordinarily must bear some

relation to the purpose of the initial stop, an officer "may shift

his focus and increase the scope of his investigation by degrees if

his suspicions mount during the course of the detention." Id.

In the case at hand, the defendant does not challenge the

officers' actions during the vehicle stop. Instead, he confines

his attack to the first tier of the Terry framework and asserts

that Hall did not have reasonable suspicion to make the initial

stop. The alleged speeding, he says, was merely a pretext. This

assertion need not detain us.

In his motion to suppress, the defendant explicitly

"concede[d] that based upon his speed Officer Hall had a reasonable

articulable suspicion to effect a traffic stop of his vehicle."

This concession corresponds to the officer's account and no more is

exigible to render the stop legitimate. See Whren v. United

States, 517 U.S. 806, 812-13 (1996) (holding that the appropriate

Fourth Amendment test is one of objective reasonableness); Ruidíaz,

529 F.3d at 29 (same). That ends this aspect of the matter: a

party cannot concede an issue in the district court and later, on

-7-
appeal, attempt to repudiate that concession and resurrect the

issue. To hold otherwise would be to allow a litigant to lead a

trial court down a primrose path and later, on appeal, profit from

the invited error. We will not sanction such tactics. Cf.

Merchant v. Ruhle, 740 F.2d 86, 92 (1st Cir. 1984) (warning against

permitting the use of "agreeable acquiescence to perceivable error

as a weapon of appellate advocacy").

2. The Residential Search. We turn next to the

defendant's motion to suppress evidence seized during a search of

his home in Maine. To set the stage, we rehearse the relevant

facts as supportably found by the district court.

On August 29, 2007, local authorities arrested the

defendant in Maine on a charge of operating a motor vehicle under

the influence of intoxicants. A state magistrate released him on

bail conditions, which provided among other things that he would

not use or possess any alcoholic beverages or illegal drugs and

that he would "submit to searches of [his] person, vehicle and

residence . . . upon articulable suspicion."

The defendant was arrested again some six weeks later —

this time on charges of disorderly conduct and resisting arrest.

He was again released on bail, subject to the alcohol and drug

conditions described above. His new bail conditions, however,

contained a significant change: they stipulated that he would

"submit to searches of [his] person, vehicle and residence . . . at

-8-
any time without articulable suspicion or probable cause" (emphasis

supplied).

On November 13, 2007, these bail conditions remained in

effect. On that date, police officers in Lewiston, Maine observed

the defendant leaving a convenience store with a brown bag that

appeared to contain a six-pack or a twelve-pack of a beverage. A

uniformed police officer, Brian Rose, stopped the defendant when he

was approximately 100 feet away from his apartment. Rose confirmed

the defendant's bail conditions with him and found that the

defendant was carrying beer. Rose and other officers arrested the

defendant for this bail violation. Rose then told the defendant

that the officers planned to search his residence pursuant to his

bail conditions. The defendant replied with words to the effect

of, "Yeah, whatever." Without objection, one of the officers took

the defendant's apartment key and used it to gain access to his

residence. The ensuing search turned up drugs and drug-related

paraphernalia.

Before us, the defendant castigates the residential

search as unlawful and insists that the discovered contraband

should have been suppressed. This remonstrance ignores the

district court's supportable finding that the defendant consented

to the search. See Gates I, 2008 WL 5382285, at *12. Without a

showing that his consent was unlawfully obtained, the defendant

cannot be heard to complain that the search itself was illegal.

-9-
See Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973); United

States v. Stierhoff, 549 F.3d 19, 23 (1st Cir. 2008).

In all events, the district court took a belt-and-

suspenders approach: it also supportably found that the search was

independently justified by the extant bail conditions. After all,

the defendant had agreed, as part of his bail conditions incident

to the charges of disorderly conduct and resisting arrest, to

submit to searches of his person and residence at any time, even in

the absence of articulable suspicion. We see no reason why we

should not give the plain language of such a bail condition force

and effect. Cf. Samson v. California, 547 U.S. 843, 852-57 (2006)

(holding that a suspicionless search of a parolee did not violate

the Fourth Amendment where the parolee had previously submitted to

a parole condition authorizing such searches); United States v.

Barner, 666 F.3d 79, 81, 84-86 (2d Cir. 2012) (approving

warrantless search when parole condition provided that parolee's

"person, residence and property [were] subject to search and

inspection" (alteration in original)).

B. Speedy Trial.

The defendant assails the district court's refusal to

dismiss the indictment on speedy trial grounds.3

3
In his motion to dismiss, the defendant also alleged a
violation of his constitutional right to a speedy trial. See U.S.
Const. amend. VI. The district court rejected this plaint, see
Gates II, 650 F. Supp. 2d at 88, and the defendant does not renew
it on appeal.

-10-
 The STA provides generally that, upon motion, an

indictment must be dismissed if the defendant's trial has not

commenced within 70 days from the latter of the return of the

indictment or the defendant's first appearance before a judicial

officer. 18 U.S.C. § 3161(c)(1). This 70-day limit is not

absolute; the STA contemplates that certain periods of time shall

be excluded. See id. § 3161(h). In this venue, the defendant

complains that several periods of time were improperly excluded

under the STA.

We review excludability determinations for abuse of

discretion. United States v. Vega Molina, 407 F.3d 511, 532 (1st

Cir. 2005). We are mindful, however, that a material error of law

invariably constitutes an abuse of discretion. United States v.

Snyder, 136 F.3d 65, 67 (1st Cir. 1998).

In this case, the parties agree that the speedy trial

clock began to tick on March 5, 2008 — the day after the

defendant's arraignment. The defendant's trial commenced on

September 22, 2009 (some 566 days later). Both sides agree that a

minimum of 41 days was non-excludable. The district court excluded

the rest of the intervening time in a series of orders. The

defendant's claim of error attempts to challenge some of those

orders.

Although the defendant's argument on appeal is sprawling,

the record below frames the legitimate parameters of the debate.

-11-
In his motion to dismiss, the defendant explicitly challenged the

exclusion of only two periods: March 24 to April 11, 2008 (the time

between the filing of the motion to extend the pretrial motions

deadline and the filing of the first suppression motion), and

February 12 to March 25, 2009 (the time between the court's

disposition of the suppression motions and the defendant's first

attorney's motion to withdraw). The district court excluded both

periods by granting defense counsel's motions for extensions of

time.4 Generally speaking, exclusions of this type are permitted

under the STA, which authorizes, inter alia, exclusions of:

Any period of delay resulting from a
continuance granted by any judge on his own
motion or at the request of the defendant or
his counsel or at the request of the attorney
for the Government, if the judge granted such
continuance on the basis of his findings that
the ends of justice served by taking such
action outweigh the best interest of the
public and the defendant in a speedy trial.
No such period of delay resulting from a
continuance granted by the court in accordance
with this paragraph shall be excludable under
this subsection unless the court sets forth,
in the record of the case, either orally or in
writing, its reasons for finding that the ends
of justice served by the granting of such
continuance outweigh the best interests of the
public and the defendant in a speedy trial.

4
With respect to the first period, the district court
excluded the time in two separate orders (the first excluded the
time from March 24 to April 4 and the second excluded the time from
April 4 to April 11).

-12-
18 U.S.C. § 3161(h)(7)(A). In keeping with this provision, the

three challenged exclusion decisions incorporated specific ends of

justice findings.

In support of his motion to dismiss, the defendant

proffered an affidavit stating that he did not receive any timely

advice about his speedy trial rights and had not been asked to

consent to his attorney's requests for the periods of delay. The

district court denied the motion to dismiss, concluding that

defense counsel may waive a defendant's rights under the STA and

that, therefore, the challenged periods were properly excluded.

Gates II, 650 F. Supp. 2d at 84-85.

Before us, the defendant again complains that his

attorney's consent was impuissant because his attorney opted to

seek additional time without first securing his permission. This

complaint hinges on the proposition that a defendant's personal

consent is always required for continuances that entail a waiver of

speedy trial rights. We reject this proposition; a defendant's

lawyer may seek a continuance and the concomitant exclusion of time

for STA purposes without first securing the defendant's personal

consent. We explain briefly.

The plain text of the STA authorizes courts to grant

continuances "at the request of the defendant or his counsel." 18

U.S.C. § 3161(h)(7)(A) (emphasis supplied). We are confident that

this statutory provision says what it means and means what it says.

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So read, the thrust of the provision comports with the well-settled

principle that express consent by counsel is controlling with

respect to scheduling and trial management matters without any

requirement that the defendant personally acquiesce. See New York

v. Hill, 528 U.S. 110, 115 (2000); Taylor v. Illinois, 484 U.S.

400, 417-18 (1988); cf. Gonzalez v. United States, 553 U.S. 242,

250 (2008) (explaining that "[t]o hold that every instance of

waiver requires the personal consent of the client himself or

herself would be impractical"). In such instances, "the defendant

is deemed bound by the acts of his lawyer-agent and is considered

to have notice of all facts, notice of which can be charged upon

the attorney." Hill, 528 U.S. at 115 (internal quotation marks

omitted). Several courts have applied this principle in the STA

context. See, e.g., United States v. Bryant, 134 F.3d 364 (4th

Cir. 1998) (unpublished table decision) (stating, in STA context,

that the district judge was entitled to conclude that the

defendant's counsel spoke for him); United States v. Fields, 39

F.3d 439, 443 (3d Cir. 1994) (finding fault with defendant's

argument that "he would have us order the dismissal of his

indictment based on continuances that his own attorney sought");

United States v. Troy, 564 F. Supp. 2d 42, 47 (D. Me. 2008)

(noting, in STA context, that "[t]he adversary process could not

function effectively if every tactical decision required client

approval" (internal quotation marks omitted)).

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 We agree with these authorities. We hold, therefore,

that in the ordinary course and within the confines of the STA

exclusion provisions, defense counsel has the power to seek an STA

continuance without first informing his client or obtaining his

client's personal consent. See Hill, 528 U.S. at 115 (holding that

attorney's statement, without any showing of client's explicit

consent, could waive speedy trial right under Interstate Agreement

on Detainers).

To be sure, there may be exceptional circumstances in

which an attorney's naked imprimatur can be called into question.

Such circumstances could include, say, a lawyer's intentional foot-

dragging for his own purposes and to his client's detriment. Cf.

United States v. Pringle, 751 F.2d 419, 429 (1st Cir. 1984)

(stating that the STA "is as much aimed at the delay caused by

judicial congestion and mismanagement as it is aimed at the

deliberate stalling of counsel"). Similarly, a defendant's

contemporaneous objection to his lawyer's request for an extension

of time would be a datum for the district court to consider in its

analysis of the ends of justice.

In all events, there are safeguards within the STA

framework that protect against this potential for a miscarriage of

justice. In requiring the district court to make findings that

"the ends of justice [are] served" by granting a continuance, the

STA demands that the court consider "the best interest of the

-15-
public" as well as the defendant's stake in a speedy trial. 18

U.S.C. § 3161(h)(7)(A). To ensure the effectiveness of this

safeguard, the STA limns the factors that a judge must consider in

determining whether to grant a continuance. See id.

§ 3161(h)(7)(B). It also identifies impermissible rationales. See

id. § 3161(h)(7)(C) ("No continuance . . . shall be granted because

of general congestion of the court's calendar, or lack of diligent

preparation or failure to obtain available witnesses on the part of

the attorney for the Government."). In our view, these statutory

limitations on the district court's ability to grant STA

continuances provide a prophylaxis that is adequate to guard

against potential abuses by defense counsel.

With respect to the three exclusion orders challenged

below, we discern no error in the district court's ends of justice

determinations. In connection with the exclusion of the first

block of time, the defendant says that exclusion was improper

because of the prosecution's belated responses to discovery

requests. It is true that in moving to exclude the period from

March 24 to April 11, 2008, defense counsel represented that he

needed more time to review discovery provided by the government.

But the record reflects that the government complied with most of

its discovery obligations within 30 days of the defendant's

arraignment. The fact that defense counsel needed more time does

not suggest, let alone demonstrate, that the government was

-16-
unreasonably tardy in fulfilling its responsibilities. We find no

clear evidence of prosecutorial misconduct and no special

circumstances suggesting that the district court should have looked

behind defense counsel's consent in order to promote the ends of

justice. Cf. id. § 3161(h)(7)(B) (stating that the factors "which

a judge shall consider in determining whether to grant a

continuance" include "[w]hether the failure to grant such a

continuance . . . would deny counsel . . . the reasonable time

necessary for effective preparation").

The defendant's then-counsel offered equally plausible

reasons for excluding the second period of time identified in the

motion to dismiss. The district court considered those reasons and

found them sufficient. See id. § 3161(h)(7)(A). There is nothing

in the record, fairly read, that compels us to find an abuse of

discretion.

The defendant does not go quietly into this bleak night.

He questions some of the reasons offered in support of these and

other exclusions. He says, for example, that untoward delays were

caused, at least in part, by defense counsel's vacation plans,

prosecutorial stalling, and the district court's "languid approach"

to scheduling.

We need not tarry over the attorney's vacation plans.

Defense lawyers are not automatons; they are not expected to work

365 days a year. A reasonable vacation constitutes a plausible

-17-
basis for excluding a relatively brief period of time under the

STA. See, e.g., United States v. Trotman, 406 F. App'x 799, 806

(4th Cir. 2011); see also Pringle, 751 F.2d at 432 (stating that

the legislative history of the STA "indicates that scheduling

conflicts of either defense or government counsel were intended by

Congress to be legitimate grounds for granting a continuance").

The defendant's other complaints are no more powerful.

We recognize that, in extreme cases, delaying tactics by a

prosecutor or a court's chronic inattention to its docket might be

so rebarbative as to comprise the special circumstances needed to

override defense counsel's waiver of his client's speedy trial

rights and impel the trial court to find that a requested

continuance is at odds with the ends of justice. But we have

perused the record in this case with care and we conclude that

neither the government's conduct nor the district court's

management of its busy calendar was beyond the pale.

In an effort to change the trajectory of the debate, the

defendant tries to widen the field of battle. He challenges for

the first time on appeal the excludability of several additional

time periods. This challenge comes too late. We hold that an

appellant who seeks to contest the exclusion of periods of time not

challenged in the district court has waived his right to challenge

such periods on appeal.

-18-
 This conclusion is supported by both statutory text and

relevant precedent. The plain language of the STA provides that

"[f]ailure of the defendant to move for dismissal prior to trial

. . . shall constitute a waiver of the right to dismissal under

[the STA]." 18 U.S.C. § 3162(a)(2). The statute further provides

that "[t]he defendant shall have the burden of proof of supporting

such motion," id., which includes the burden of identifying STA

violations in the district court, see Zedner v. United States, 547

U.S. 489, 502-03 (2006). To avoid a finding of waiver, therefore,

a defendant must raise any potential STA violations before the

district court in a motion to dismiss. Cf. United States v.

Connor, 926 F.2d 81, 84 (1st Cir. 1991) (holding that a defendant

waives the contention that a particular period was not excludable

under the STA where the period post-dates the filing of his motion

to dismiss and he does not renew his motion).

In fashioning this holding, we do not write on a pristine

page. Three other courts of appeals have concluded, as we do, that

exclusions of time not specifically challenged in a motion to

dismiss are deemed waived. See, e.g., United States v. Vallone,

698 F.3d 416, 448 (7th Cir. 2012); United States v. Oberoi, 547

F.3d 436, 458 (2d Cir. 2008), vacated on other grounds, 130 S. Ct.

1878 (2010); United States v. White, 129 F. App'x 197, 201 (6th

Cir. 2005). We ourselves have previously hinted broadly at the

same conclusion. See United States v. Valdivia, 680 F.3d 33, 41-42

-19-
(1st Cir. 2012) (stating that where an appellant seeks to contest

the exclusion of periods of time not challenged below, "there is a

strong basis for finding the argument waived").

The finding of waiver lays to rest the defendant's claims

that periods of time not specifically identified in his motion to

dismiss were improperly excluded. Waived arguments are for the

most part unreviewable, see United States v. Rodriguez, 311 F.3d

435, 437 (1st Cir. 2002); and the waived arguments here fall within

the general rule, not within the long-odds exception to it.

The upshot is that defense counsel proposed, and on his

client's behalf consented to, exclusions of time for STA purposes.

The defendant, through new counsel, subsequently moved to dismiss

the indictment, specifically challenging two (and only two) of

these excluded periods. The district court denied this motion. We

conclude that the district court complied with the STA's exclusion

provisions in granting these contested continuances and, therefore,

appropriately denied the motion to dismiss. The defendant's

challenges to other excluded periods were not raised below and are

waived. Viewed through the prism of these conclusions, the

district court did not err in denying the defendant's motion to

dismiss.

C. Plea Withdrawal.

Approximately two months after pleading guilty but prior

to sentencing, the defendant sought both a withdrawal of his guilty

-20-
plea and a change of counsel. The court appointed new counsel (the

defendant's fifth court-appointed lawyer), who filed an amended

motion for withdrawal of the guilty plea. The court denied the

motion, emphasizing the voluntariness of the plea and the

dubiousness of the defendant's claim of innocence. Gates III, 698

F. Supp. 2d 212. The defendant assigns error to this ruling.

A defendant does not have an absolute right to withdraw

a guilty plea. See United States v. Negrón-Narváez, 403 F.3d 33,

36 (1st Cir. 2005). But a district court may allow withdrawal of

a previously entered guilty plea as long as a "fair and just

reason" for rescinding the plea exists. Fed. R. Crim. P.

11(d)(2)(B); see United States v. Pellerito, 878 F.2d 1535, 1537

(1st Cir. 1989). In appraising such a motion, a court ordinarily

should begin by considering whether the plea, when entered, was

voluntary, intelligent, and informed. See United States v.

McDonald, 121 F.3d 7, 11 (1st Cir. 1997); United States v.

Gonzalez-Vazquez, 34 F.3d 19, 23 (1st Cir. 1994). From that

starting point, the inquiry customarily should expand to factors

such as the strength of the reasons proffered by the defendant as

a basis for withdrawing his plea, the timing of the motion, and the

force of any assertion of legal innocence. See United States v.

Doyle, 981 F.2d 591, 594 (1st Cir. 1992). "If the combined weight

of these factors tilts in the defendant's favor," then the court

-21-
should consider "the quantum of prejudice, if any, that will inure

to the government" should the motion be granted. Id.

"[O]ther than for errors of law, we will disturb the

trial judge's refusal to allow plea withdrawals only for

demonstrable abuse of discretion." Pellerito, 878 F.2d at 1538.

In the plea-withdrawal context, as elsewhere, questions of law are

subject to de novo review. United States v. Padilla-Galarza, 351

F.3d 594, 597 & n.3 (1st Cir. 2003). Findings of fact, however,

can only be set aside if they are clearly erroneous. Id.

The defendant suggests that his guilty plea was neither

voluntary nor knowing because he made it based on his counsel's

false assurances about sentencing outcomes. This suggestion rests

on his insistence that his counsel assured him that pleading guilty

would position him favorably to receive credit for his acceptance

of responsibility, see USSG §3E1.1, and a term of imprisonment at

or near the mandatory minimum, see 21 U.S.C. § 841(b)(1)(A).

Pertinently, defense counsel acknowledged that he had

explained to the defendant that one "benefit of a plea is [that] we

will have in play the issue of acceptance of responsibility, and

that will make a difference in terms of where the advisory

guidelines intersect with the statutory minimum." Defense counsel

elaborated on this point, noting that the defendant might be

"preclude[d]" from receiving any credit for acceptance of

responsibility because he did not plead guilty until mid-trial, and

-22-
that the issue of acceptance of responsibility would be "in

contention at sentencing." These statements were accurate. See,

e.g., USSG §3E1.1, comment. (n.2). They did not amount to false

assurances, especially in light of the fact that the defendant

confirmed at the change-of-plea hearing that no one made any

promises to him regarding sentencing.

The remainder of the change-of-plea transcript is equally

inhospitable to the defendant's revisionist account of history.

The transcript demonstrates that the district court made a thorough

inquiry into the voluntary and knowing character of the guilty

plea, ensuring that the defendant understood both his right to

proceed with trial and the possible consequences of a guilty plea.

The court made transparently clear that the plea entailed no

guaranteed sentencing outcome.

This brings us to the defendant's claim of innocence and

his assertion that the district court acted arbitrarily in

impugning it. We discern no impropriety. Merely voicing a claim

of innocence has no weight in the plea-withdrawal calculus; to be

given weight, the claim must be credible. See United States v.

Sanchez-Barreto, 93 F.3d 17, 24 (1st Cir. 1996).

In this instance, the defendant's claim of innocence was

not credible; it contradicted the change-of-plea colloquy in which

he acknowledged that he committed the charged offenses. The

defendant listened to the prosecutor's opening statement and the

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testimony of the government's initial witnesses, heard the

prosecutor vouch for that version of the case, accepted the

accuracy of that version, and admitted his culpability.

A defendant is normally bound by the representations that

he himself makes in open court at the time of his plea. See, e.g.,

Padilla-Galarza, 351 F.3d at 598; United States v. Butt, 731 F.2d

75, 80 (1st Cir. 1984). As we have said, such statements "are more

likely to be reliable than later versions prompted by second

thoughts." Padilla-Galarza, 351 F.3d at 598. In this case, the

record contains nothing that would prompt us to depart from this

salutary principle.5

The short of it is that the defendant's arguments for

withdrawing his plea were weak and his claim of innocence was

unpersuasive. It follows that the district court acted well within

the ambit of its discretion in concluding that the defendant had

not shown a fair and just reason for withdrawing his guilty plea.

D. Sentencing.

The defendant's remaining claims of error implicate his

sentence. In addressing these claims, we review the district

court's interpretation and application of the sentencing guidelines

de novo. See United States v. Parrilla Román, 485 F.3d 185, 190

5
Indeed, the defendant's claim of innocence is undermined by
other record evidence. It seems to be no accident that the
defendant chose to plead guilty shortly after the highly
incriminating trial testimony of his alleged coconspirator (Brandon
Johnson).

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(1st Cir. 2007). Subsidiary findings of fact, however, engender

clear-error review. Id. If we are satisfied that no procedural

irregularities occurred, we appraise the sentence imposed for abuse

of discretion — a standard that is tantamount to review for

reasonableness. Gall v. United States, 552 U.S. 38, 46 (2007).

The defendant posits that his due process rights were

violated because the district court used unreliable and

unsubstantiated information in constructing his guideline

sentencing range (GSR). In this regard, he trains his sights on

the court's reliance on information contained in the proffer of one

of the government's cooperating witnesses, Kristy Nadeau. This

untrustworthy information, he says, unfairly influenced the court's

drug-quantity finding (and, thus, the court's calculation of the

GSR).

The facts are straightforward. Nadeau's proffer

vouchsafed that $16,100 seized from her apartment constituted drug

proceeds that belonged to the defendant. The district court

credited this statement, interpolated money into drugs, and used

the resultant figure in deducing the total drug quantity

attributable to the defendant.

We descry no clear error. The usual rules of evidence do

not apply in sentencing proceedings. See United States v. Zapata,

589 F.3d 475, 485 (1st Cir. 2009). The district court may base

sentencing determinations on any evidence that it reasonably deems

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to be reliable. See United States v. Cintrón-Echautegui, 604 F.3d

1, 6 (1st Cir. 2010).

Here, Nadeau's proffer was specific. Nadeau herself was

present at the disposition hearing, and the defendant had an

opportunity (which he declined) to question her. The sentencing

judge, who had lived with the case for more than two years and had

presided over the aborted trial, had a bird's-eye view of how the

conspiracy operated. Thus, he was in an enviable position to gauge

the veracity of Nadeau's proffer. In these circumstances, no clear

error attended the district court's conclusion that the proffer was

trustworthy.

Once we are satisfied on this point, the district court's

calculation of the GSR appears to be bulletproof. The court

warrantably found a total of 414 grams of crack cocaine to be

attributable to the defendant, yielding a base offense level of 32.

It then incorporated two enhancements, totaling six levels, for the

defendant's leadership role, see USSG §3B1.1(a), and his

obstruction of justice, see id. §3C1.1. The court eschewed a

downward adjustment for acceptance of responsibility, plausibly

reasoning that the defendant's attempt to portray himself as

innocent during the plea-withdrawal proceeding showed that he had

not genuinely accepted responsibility for his criminal conduct.

Each of these adjustments is well-supported by the record.

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 In the absence of any procedural error, we are left with

the question of the substantive reasonableness of the sentence

imposed. Assuming favorably to the defendant that his amorphous

due process argument can be read to encompass such a challenge,

that challenge fails.

The sentencing guidelines are advisory, see United States

v. Booker, 543 U.S. 220, 245 (2005), and the GSR is not controlling

on the question of the substantive reasonableness of a particular

sentence, see United States v. Jiménez-Beltre, 440 F.3d 514, 517-18

(1st Cir. 2006) (en banc). This does not mean, however, that the

GSR is an irrelevancy: it informs an appellate court's view of the

reasonableness of a sentence. See United States v. Madera-Ortiz,

637 F.3d 26, 30 (1st Cir. 2011). We start there.

Pairing the defendant's total offense level (38) with his

criminal history category (III) produces a properly calculated GSR

of 292-365 months. The district court made this calculation and,

varying downward from it, imposed an incarcerative sentence of 240

months. The sentencing court noted that the defendant "has a

serious criminal history which involves violence"; that he "has not

been deterred by previous involvement with the law"; and that he

functioned as "the ring leader" of "a very important drug

conspiracy." Nevertheless, the "very substantial" GSR was, in the

court's view, "greater than necessary to reflect the seriousness of

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this offense and this defendant's involvement in it and his past

criminal activities."

The record makes manifest that the court examined the

totality of the circumstances, weighed the relevant factors, see 18

U.S.C. § 3553(a), and fashioned a sentence shaped to fit the

contours of the crime of conviction. The resultant sentence fell

52 months below the nadir of the GSR. When the district court

articulates a plausible rationale for the sentence imposed and

reaches a sensible result, that result, virtually by definition,

falls within the universe of reasonable sentencing outcomes. See

United States v. Walker, 665 F.3d 212, 234 (1st Cir. 2011);

Jiménez-Beltre, 440 F.3d at 519. So it is here.

III. CONCLUSION

We need go no further. It is regrettable that this case

took so long to reach a conclusion. But criminal cases cannot be

expected to proceed with metronomic precision, and the progress of

this case was slowed measurably by the defendant's desire, time and

again, to secure the services of replacement counsel. Given the

pitfalls that permeated the landscape, we think that the district

court did an admirable job in getting the case to trial within a

reasonable time. We conclude both that the defendant was justly

convicted in a proceeding free from reversible error and that he

was fairly sentenced.

Affirmed.

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