United States v. Graciani

July 26, 1995

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1879

UNITED STATES OF AMERICA

Appellee,

v.

EDGAR GRACIANI,

Defendant, Appellant.

ERRATA SHEET

The opinion of this Court issued on July 24, 1995, is
amended as follows:

On page 18, line 4, "Trial" should be "trial".

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1879

UNITED STATES OF AMERICA,

Appellee,

v.

EDGAR GRACIANI,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge]

Before

Selya, Boudin and Lynch,

Circuit Judges.

Harry R. Segarra, by appointment of the court, Benicio

Sanchez Rivera, Federal Public Defender, and Miguel A. A.

Nogueras-Castro, Assistant Federal Public Defender, on various

briefs for appellant.
Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco

and Edwin O. Vazquez, Assistant United States Attorneys, on brief

for the United States.

July 24, 1995

SELYA, Circuit Judge. Defendant-appellant Edgar
SELYA, Circuit Judge.

Graciani challenges the sentence imposed below on several

grounds. He also belatedly moves to remand on the basis of newly

discovered evidence an initiative that requires us to set out

for the first time the procedural framework that pertains to a

motion brought under Fed. R. Crim. P. 33 while a criminal case is

pending on direct appeal, and, relatedly, to examine the

interplay between Rule 33 and a defendant's guilty plea. In the

end, we affirm the sentence and deny the motion.

I.
I.

Background
Background

Because appellant's conviction and sentence stem from a

guilty plea rather than a verdict, we derive the pertinent facts

from the presentence investigation report (PSI Report), the

government's statement served pursuant to D.P.R. Loc. R.

418.2(a),1 and the transcripts of the change-of-plea and

disposition hearings. See United States v. Tejada-Beltran, 50

F.3d 105, 107 (1st Cir. 1995); United States v. Dietz, 950 F.2d

50, 51 (1st Cir. 1991).

1The local rule provides:

In all cases where a Presentence
Investigation Report is ordered . . . counsel
for the government shall file with the Court
and serve upon the defendant's counsel, a
statement setting forth the government's
version of the facts leading to the
acceptance of criminal responsibility.

D.P.R. Loc. R. 418.2(a). In this case, the defendant did not
object to the statement submitted by the government.

3

On or about January 14, 1992, appellant arranged to

sell one-eighth of a kilogram of crack cocaine (125 grams) to a

customer who was, in reality, a government operative. On the

evening of January 15, appellant's courier, Carlos Delgado Rojas

(Delgado), told the agent that appellant could not supply the

full 125 grams of crack then and there; instead, he proposed to

deliver approximately 80 grams of crack and 45-50 grams of

powdered cocaine. Once the agent agreed to the substitution, the

parties consummated the transaction. Subsequent measurement

revealed that Delgado had delivered 85.3 grams of crack and 54.4

grams of cocaine powder.

The agent expressed an interest in future purchases.

Appellant agreed to sell him a half-kilogram of crack, to be

delivered on January 24. At the appointed time, Delgado, armed,

appeared at the delivery site accompanied by Juan Encarnacion

Castro (Encarnacion) and a juvenile (G.R.M.). The men were

apprehended and the arresting officers seized a loaded pistol.

The officers also seized three plastic bags containing a white,

powdery substance later determined to be sugar.2 Further

investigation revealed that appellant gave the seized firearm to

2Appellant eventually admitted that he had agreed to purvey
the half-kilogram of crack, and stated that he had prepared for
the transaction by "cooking" that amount of cocaine. He then
substituted sugar for crack, claiming that he had a premonition
that he might be apprehended. The circumstances suggest that
something more sinister might have been afoot. Cf. United States

v. Dray, 901 F.2d 1132, 1134 (1st Cir.) ("Honor, even among

thieves, may all too often be, in the bard's phrase, `a mere
scutcheon.'") (quoting William Shakespeare, Henry IV Part I, act

V, sc. 1 (1598)), cert. denied, 498 U.S. 895 (1990).

4

Delgado for protection during the drug transaction.

The grand jury indicted Graciani, Delgado, and

Encarnacion on a medley of charges. Appellant was named in seven

counts of the superseding indictment. He eventually agreed to

plead guilty to count 1 (which charged the unlawful distribution

of 85.3 grams of crack cocaine on January 15 in violation of 21

U.S.C. 841(a)(1)) and count 7 (which charged the unlawful

carriage of a firearm during and in relation to a drug

trafficking offense in violation of 18 U.S.C. 924(c)). The

plea agreement left the sentence in the court's discretion

(subject, of course, to the constraints imposed by the sentencing

guidelines).

The district court took appellant's plea and

commissioned a PSI Report. The court originally sentenced

appellant on July 7, 1992,3 but then reconsidered. We do not

concern ourselves with the withdrawn sentence, but focus upon the

second disposition hearing (held on August 2, 1994). The court

attributed to appellant (a) the weight of the crack cocaine

actually supplied on January 15, (b) the weight of the powdered

cocaine actually supplied on that date, and (c) the weight of the

crack cocaine promised for delivery on January 24. Then, using

the Drug Quantity Table, the court set appellant's base offense

level (BOL) at 36. See U.S.S.G. 2D1.1(c)(4) (Drug Quantity

Table) (specifying a BOL of 36 for offenses involving "[a]t least

3The court dismissed the remaining five counts at that time
as per the plea agreement. The ensuing reconsideration of the
sentence did not implicate the dismissed counts.

5

500 G but less than 1.5 KG of Cocaine Base").

The court added six levels four for appellant's

aggravating role in the offense, see id. 3B1.1(a), and two for

obstruction of justice, see id. 3C1.1 and subtracted three

levels for acceptance of responsibility, see id. 3E1.1, bringing

the total offense level (TOL) to 39. Given appellant's status as

a first offender, these computations yielded a guideline

sentencing range (GSR) of 262-327 months. The court imposed a

280-month incarcerative sentence on count 1, and added a 60-month

consecutive sentence on count 7 to accommodate a mandatory

minimum. See 18 U.S.C. 924(c)(1). This appeal ensued.

II.
II.

Discussion
Discussion

Appellant advances a myriad of arguments in support of

the appeal and the concomitant motion. We deal with these

arguments seriatim.

A.
A.

Relevant Conduct
Relevant Conduct

The method of the sentencing guidelines makes the

quantity of narcotics attributable to a convicted drug trafficker

a key datum in constructing his sentence. See United States v.

Sepulveda, 15 F.3d 1161, 1196 (1st Cir. 1994), cert. denied, 114

S. Ct. 2714 (1995); United States v. Garcia, 954 F.2d 12, 15 (1st

Cir. 1992); United States v. Bradley, 917 F.2d 601, 604 (1st Cir.

1990). In this case, appellant castigates the district court for

attributing to him a drug quantity in excess of the amount of

6

crack cocaine involved in the count of conviction. Appellant's

fusillade lands well wide of the target.

Under the guidelines, the aggregate amount of

attributed drugs is to be derived from the sum total of all

relevant conduct. The proper figure can only be computed,

therefore, by careful consideration of all acts "that were part

of the same course of conduct or common scheme or plan as the

offense of conviction." U.S.S.G. 1B1.3(a)(2). "Relevant

conduct is not limited to the counts of conviction"; rather, it

includes both the charged conduct to which a defendant pleads and

also any other conduct that qualifies under the relevancy rubric.

Tejada-Beltran, 50 F.3d at 110; see also Garcia, 954 F.2d at 15;

Bradley, 917 F.2d at 605; U.S.S.G. 1B1.3, comment. (backg'd).

Specifically and in direct contradiction to the position

asserted by appellant relevant conduct may include both

uncharged conduct and conduct underbracing counts that have been

charged and then dropped. See Tejada-Beltran, 50 F.3d at 110;

Garcia, 954 F.2d at 15.

That ends the matter. In the usual case, we review a

sentencing court's drug quantity determination only for clear

error. See Sepulveda, 15 F.3d at 1196; Bradley, 917 F.2d at 605.

Here, the district court supportably found that the delivery of

the crack and powdered cocaine on January 15, and the agreement

to sell additional crack cocaine on January 24, were all part of

the same course of criminal activity, and, thus, relevant

conduct. We see no error.

7

By like token, the fact that the government seized

sugar, and never recovered the half-kilogram of crack that

appellant promised to supply on January 24, does not sweeten the

bottom line by precluding reference to the agreed quantity in the

sentencing determination. Indeed, "every court to consider the

issue, including this one, has concluded that an amount of drugs

which a defendant negotiates to sell may be considered as

relevant conduct for base offense level purposes even if the

drugs are never produced." Bradley, 917 F.2d at 604.4

For these reasons, we conclude that the lower court's

drug quantity calculation cannot be faulted.

B.
B.

Drug Equivalency
Drug Equivalency

Appellant's next protestation, now familiar in all the

circuits, criticizes the fact that the guidelines, and

specifically U.S.S.G. 2D1.1, equate one kilogram of crack

cocaine to one hundred kilograms of powdered cocaine for

sentencing purposes.5 We have squarely rejected claims that the

4To be sure, there are exceptions to this rule, see, e.g.,

U.S.S.G. 2D1.1, comment. (n.12) (requiring exclusion of
negotiated amount if "the court finds that the defendant did not
intend to produce and was not reasonably capable of producing
[it]"); United States v. Muniz, 49 F.3d 36, 41-42 (1st Cir. 1995)

(discussing application of note 12); United States v. Gessa, 971

F.2d 1257, 1265 (6th Cir. 1991) (remanding for findings with
respect to defendant's intent and capability), but appellant has
not brought his situation within the confines of any recognized
exception.

5The Sentencing Commission recently submitted proposed
guideline amendments that would substantially reduce the
equivalency ratio between crack cocaine and powdered cocaine.
See 60 Fed. Reg. 25,074, 25,075-76 (1995). The proposed changes

8

conversion formula has a greater impact on African-Americans,

and, thus, transgresses the Equal Protection Clause of the Fifth

Amendment. See United States v. Singleterry, 29 F.3d 733 (1st

Cir.), cert. denied, 115 S. Ct. 647 (1994). There, we held the

sentencing distinction between crack and powered cocaine to be

constitutional, finding no significantly probative evidence that

either Congress or the Sentencing Commission harbored a racial

animus or discriminatory intent. Id. at 741. We also found a

sufficient rational basis for the conversion formula and the

resultant sentencing scheme. See id. at 740.

It is axiomatic that, "[i]n a multi-panel circuit,

newly constituted panels are, for the most part, bound by prior

panel decisions closely on point." Williams v. Ashland Eng'g

Co., 45 F.3d 588, 592 (1st Cir. 1995), petition for cert. filed,

63 U.S.L.W. 3819 (U.S. May 2, 1995) (No. 94-1804-CFX). This

principle applies in criminal as well as civil cases. See, e.g.,

United States v. Wogan, 938 F.2d 1446, 1449 (1st Cir.), cert.

denied, 502 U.S. 969 (1991); see also Lacy v. Gardino, 791 F.2d

980, 985 (1st Cir.) (applying principle in habeas corpus

will become effective on November 1, 1995, absent congressional
action to the contrary. See 28 U.S.C. 994(p) (1988). The

Commission has not yet decided whether the changes, if they
become law, should apply retrospectively. See 60 Fed. Reg. at

25,074. If the amendments are eventually determined to warrant
retroactive application, appellant may then be in a position to
seek appropriate relief in the district court. See United States

v. Saccoccia, F.3d , n.27 (1st Cir. 1995) [No. 93-

1618, slip op. at 65 n.27]; United States v. Connell, 960 F.2d

191, 197 n.10 (1st Cir. 1992). We express no opinion on the
subject, but merely note the possibility and proceed without
further reference to what the future may bring.

9

context), cert. denied, 479 U.S. 888 (1986). Because Singleterry

is controlling on this issue, we dismiss appellant's claim.6

C.
C.

Other Adjustments
Other Adjustments

Appellant complains of two upward adjustments to his

BOL, one for role in the offense and one for obstruction of

justice. Neither of these complaints need occupy us for long.

1. Role in the Offense. U.S.S.G. 3B1.1(a) provides
1. Role in the Offense.

for elevating a defendant's BOL by four levels if the district

court makes both a status determination (that the defendant was

"an organizer or leader of a criminal activity") and a scope

determination ("that the defendant's criminal activity involved

five or more participants or was otherwise extensive"). We have

explicated this proviso in a series of opinions, see, e.g.,

United States v. Rostoff, 53 F.3d 398, 413-14 (1st Cir. 1995);

Tejada-Beltran, 50 F.3d at 110-12; United States v. McDowell, 918

F.2d 1004, 1011-12 (1st Cir. 1990), and it would be pleonastic to

rehearse that jurisprudence here. Two comments should suffice.

First, the determination of a defendant's role in an

6In any event, every other circuit that has grappled with
this claim has rejected the arguments necessary to find 2D1.1
in violation of the constitutional guarantee of equal protection.
See, e.g., United States v. Moore, F.3d , (2d Cir.

1995) [No. 94-1330, slip op. at 4-7]; United States v. Cherry, 50

F.3d 338, 342-44 (5th Cir. 1995); United States v. Williams, 45

F.3d 1481, 1485-86 (10th Cir. 1995); United States v. Butler, 41

F.3d 1435, 1442 (11th Cir.), cert. denied, 115 S. Ct. 1987

(1995); United States v. Johnson, 40 F.3d 436, 439-41 (D.C. Cir.

1994), cert. denied, 115 S. Ct. 1412 (1995); United States v.

McMurray, 34 F.3d 1405, 1413 (8th Cir. 1994), cert. denied, 115

S. Ct. 1164 (1995); United States v. Frazier, 981 F.2d 92, 95 (3d

Cir. 1992), cert. denied, 113 S. Ct. 1661 (1993).

10

offense is necessarily fact-specific. Appellate courts review

such determinations only for clear error. See Garcia, 954 F.2d

at 18; Dietz, 950 F.2d at 52. Thus, absent a mistake of law,

battles over a defendant's status and over the scope of the

criminal enterprise will almost always be won or lost in the

district court. See McDowell, 918 F.2d at 1011 (urging "that

considerable respect be paid to the views of the nisi prius

court" in connection with such findings) (quoting United States

v. Ocasio, 914 F.2d 330, 333 (1st Cir. 1990)). In this case, we

see no hint of clear error in the trial court's determination

that appellant was the leader of an enterprise of the requisite

size.

Appellant strives to avoid clear-error review by

isolating a supposed mistake of law. He says that the court

erred in making its scope determination; there could not have

been "five or more participants" because only convicted

individuals can be counted, and, here, the government indicted no

more than three persons (Graciani, Delgado, and Encarnacion).

The argument cannot withstand the mildest scrutiny. The law is

pellucid that a scope determination under section 3B1.1(a) turns

not on the number of people convicted, but on the number of

persons involved in the criminal activity, whether or not

indicted (let alone convicted). See Dietz, 950 F.2d at 53. That

is, the defendant's BOL may be elevated under section 3B1.1(a)

"as long as the record permits the sentencing court to make `a

specific finding, based on a preponderance of the evidence, which

11

pinpoints [the participants] with enough particularity to give

credence to the upward adjustment.'" Tejada-Beltran, 50 F.3d at

113 (quoting McDowell, 918 F.2d at 1011).

The record before us clears this hurdle with room to

spare. In addition to Delgado, Encarnacion, G.R.M., and

appellant himself, the PSI Report states without contradiction

that appellant was the leader and organizer of a band, mostly

comprised of juveniles, that was involved, inter alia, in drug

trafficking activities. The numerosity requirement was,

therefore, satisfied.7 See, e.g., United States v. Diaz-

Villafane, 874 F.2d 43, 48 (1st Cir.) (approving similar role-in-

the-offense adjustment despite lack of express identification of

all co-participants), cert. denied, 493 U.S. 862 (1989).

2. Obstruction of Justice. The district court
2. Obstruction of Justice.

increased appellant's BOL by two levels under U.S.S.G. 3C1.1.

The court predicated the enhancement on a finding that appellant

threatened both a confidential informant and a cooperating

codefendant in an effort to influence their testimony against

him. Appellant now challenges the adjustment on the basis that

7To trigger 3B1.1(a), a scope determination must yield a
supportable finding that the criminal activity meets either the
numerosity requirement or the guideline's extensiveness

requirement. See Rostoff, 53 F.3d at 413; Tejada-Beltran, 50

F.3d at 110. Here, the record shows not only numerosity but also
extensiveness. DEA agents seized a ledger that established a
wide-ranging pattern of drug trafficking activities, and a trash
bag containing thousands of empty vials used to package crack
cocaine. On this basis, the extensiveness requirement is
satisfied. See, e.g., Dietz, 950 F.2d at 53 (emphasizing

importance of "width, breadth, scope, complexity and duration of
the scheme" in connection with an extensiveness determination).

12

he was not charged with obstruction of justice and did not admit

to committing the underlying conduct.

This challenge is too little, too late. Appellant

never advanced this objection in the court below. It is black

letter law that, "in connection with sentencing as in other

contexts, . . . arguments not seasonably addressed to the trial

court may not be raised for the first time in an appellate

venue." Dietz, 950 F.2d at 55; accord United States v. Piper, 35

F.3d 611, 620 n.6 (1st Cir. 1994), cert. denied, 115 S. Ct. 1118

(1995); Sepulveda, 15 F.3d at 1202. Consequently, appellant's

challenge is foreclosed.

D.
D.

The Eighth Amendment
The Eighth Amendment

Appellant contends that a 280-month sentence for the

distribution of so paltry an amount of crack cocaine constitutes

cruel and unusual punishment in derogation of the Eighth

Amendment. We do not agree.

The Eighth Amendment does not require a precise

calibration of crime and punishment in noncapital cases. See

United States v. Saccoccia, F.3d , (1st Cir. 1995)

[No. 93-1618, slip op. at 72]. At most, the Eighth Amendment

gives rise to a "narrow proportionality principle," Harmelin v.

Michigan, 501 U.S. 957, 997 (1991) (opinion of Kennedy, J.),

forbidding only extreme sentences that are significantly

disproportionate to the underlying crime. See id. at 1001; see

also Solem v. Helm, 463 U.S. 277, 288 (1983); Saccoccia, F.3d

13

at [slip op. at 72]; United States v. Munoz, 36 F.3d 1229,

1239 (1st Cir. 1994), cert. denied, 115 S. Ct. 1164 (1995).

It is, therefore, unsurprising that, with a regularity

bordering on the echolalic, courts have repulsed Eighth Amendment

challenges to lengthy incarcerative sentences in drug cases. For

example, in Hutto v. Davis, 454 U.S. 370, 374 (1982), the Supreme

Court upheld a 40-year prison sentence for possessing nine ounces

of marijuana with distributive intent. More recently, a clear

majority of the Justices in Harmelin, while differing on the

constitutional status of proportionality review, found

insufficient disproportionality to forestall a mandatory sentence

of life without parole for possession of over 650 grams of

cocaine. Recent opinions of the courts of appeals are to like

effect. See, e.g., Munoz, 36 F.3d at 1239 (holding that a 240-

month sentence meted out for participation in a crack-selling

conspiracy involving less than 900 grams of cocaine base accorded

with the Harmelin standard); United States v. Wesley, 990 F.2d

360, 367 (8th. Cir. 1993) (holding that 100-to-1 sentencing ratio

between cocaine and crack cocaine does not violate the Eighth

Amendment). With these cases as a reference point, appellant's

sentence cannot successfully be attacked on Eighth Amendment

grounds.

E.
E.

The Motion To Remand
The Motion To Remand

Following the submission of the parties' appellate

briefs, appellant's new counsel filed a motion in this court

14

asking us to withhold decision and remand the case to the

district court for a hearing on "newly discovered evidence" and

for a new trial.8 The motion was accompanied by an affidavit of

G.R.M. (now identified as German R. Maldonado) that purports to

absolve appellant of responsibility for the offenses of

conviction. The motion asserts that this "newly discovered

evidence" warrants the relief requested. We think not.

In the first place, appellant puts the cart before the

horse. Concededly, a motion for a new trial based on newly

discovered evidence can be brought while a criminal case is

pending on direct appeal. See Fed. R. Crim. P. 33.9 The

question remains, however, whether the court of appeals is the

appropriate forum in which a criminal defendant may initiate

review of a Rule 33 motion by the district court, and, relatedly,

whether a remand is necessary before the district court can

8In point of fact, counsel filed two motions, both of which
rely on the same affidavit. To the extent that the second motion
can be read as requesting different relief a hearing as to
whether the plea agreement is null and void (and, presumably,
whether the appellant should be permitted to withdraw his plea)
we deny it without prejudice to the filing of a proper petition
under 28 U.S.C. 2255 (1988). The plea-withdrawal argument was
not raised below and, in the absence of essential factfinding, we
decline to entertain it on direct appeal.

9The rule states in pertinent part:

A motion for a new trial based on the ground
of newly discovered evidence may be made only
before or within two years after final
judgment, but if an appeal is pending the
court may grant the motion only on remand of
the case.

Fed. R. Crim. P. 33.

15

entertain a Rule 33 motion. In general, both parts of this

inquiry evoke a negative response.

A criminal defendant who aspires to employ Rule 33

while his conviction is pending on direct appeal is not obliged

either to file a motion for remand in the court of appeals or to

seek any type of leave from that court. To the contrary, the

proper procedure under such circumstances is for the defendant,

without further ado, to file his Rule 33 motion in the district

court. See United States v. Phillips, 558 F.2d 363, 363 (6th

Cir. 1977) (per curiam). Once the motion has been so docketed,

the district court has jurisdiction to entertain it

notwithstanding the pendency of the appeal, and may either deny

it on the merits or indicate an intention to grant it. See

United States v. Fuentes-Lozano, 580 F.2d 724, 725-26 (5th Cir.

1978) (per curiam); United States v. Frame, 454 F.2d 1136, 1138

(9th Cir.) (per curiam), cert. denied, 406 U.S. 925 (1972); see

also United States v. Cronic, 466 U.S. 648, 666 n.42 (1984)

(noting correct procedural progression). If the district court

denies the motion, the defendant may take a further appeal; and

if the court proposes to grant the motion, it ordinarily will

issue a written statement to that effect so that the defendant,

armed with the advisory, may then request an order of remand from

the appellate court. See Frame, 454 F.2d at 1138.

We adopt this protocol, requiring a Rule 33 motion to

be filed initially in the district court when a direct appeal of

a criminal conviction is pending, for four main reasons. First,

16

the protocol accords with the weight of authority. See, e.g.,

Phillips, supra; Frame, supra. Second, it comports with the

discernible intention of the drafters of the 1944 amendments to

Rule 33. See, e.g., Frame, 454 F.2d at 1138 (discussing 1944

amendments). Third, it coheres with our established procedural

paradigm for handling parallel situations on the civil side. See

Toscano v. Chandris, 934 F.2d 383, 386 (1st Cir. 1991)

(explaining that "if an appeal is pending, a Rule 60(b) motion

should first be filed in the trial court, and the district judge,

if inclined to allow it, may then request remand"); Commonwealth

of Puerto Rico v. S.S. Zoe Colocotroni, 601 F.2d 39, 42 (1st Cir.

1979) (ordaining comparable procedure when, during the pendency

of an appeal from a final judgment, a party claims to have

discovered an exogenous basis for relief from the judgment).

Last but not least, principles of sound judicial

administration counsel that the district court should be allowed

to exercise its discretion to the fullest extent permissible

under Rule 33 before the court of appeals becomes enmeshed. See

Frame, 454 F.2d at 1138. The protocol we adopt today meets this

objective. It takes advantage of the district court's greater

familiarity with the case; it husbands judicial resources, thus

eliminating the need for a time-consuming remand in those

situations in which the trial court discerns no basis for

granting a new trial; and, finally, it ensures that the merits of

the motion for new trial will be heard rapidly, while at the same

17

time keeping the earlier appeal on track.10

Since appellant did not follow this protocol in moving

to remand, his motion must in all events be denied for procedural

reasons. But, there is an added wrinkle. If the problem were

purely procedural, we would simply deny the motion to remand

without prejudice to appellant's pursuit of redress under Rule 33

in the district court. See United States v. Boberg, 565 F.2d

1059, 1063 (8th Cir. 1977) (affirming conviction in analogous

circumstances "without prejudice to any motion to the district

court for a new trial on the grounds of newly discovered

evidence"). Here, however, the vice is more profound; the motion

is also substantively infirm. We explain briefly.

By its express terms, Rule 33 is confined to those

situations in which a trial has been had. In the court below,

appellant admitted his guilt, abjuring a trial. A defendant who

enters a guilty plea cannot thereafter use Rule 33 as a wedge to

undo his acknowledgement that he committed the offense. See

United States v. Collins, 898 F.2d 103, 104 (9th Cir. 1989) (per

curiam); United States v. Lambert, 603 F.2d 808, 809 (10th Cir.

1979); Williams v. United States, 290 F.2d 217, 218 (5th Cir.

1961) (per curiam); see also United States v. Prince, 533 F.2d

10The Fifth Circuit has suggested in dictum that "to avoid
delay" a criminal defendant may, alternatively, ask the court of
appeals to remand before initiating proceedings to in the
district court. See Fuentes-Lozano, 580 F.2d at 726. If such an

alternative exists at all a question on which we need not pass
it is available only in cases characterized by exceptional
circumstances (including the looming prospect of unusual
hardship).

18

205, 208 (5th Cir. 1976) (applying same principle in bar of

proffered Rule 33 motion following plea of nolo contendere); see

generally 3 Charles A. Wright, Federal Practice and Procedure

556, at 313 (2d ed. 1982); cf. United States v. Cordero, 42 F.3d

697, 698 (1st Cir. 1994) (holding that a defendant, by entering

an unconditional plea of guilty, waives any right to challenge

his conviction on the basis of earlier, non-jurisdictional

rulings). In fine, Rule 33 "applies only to cases in which a

trial, either to the court or to a jury, has taken place."

Lambert, 603 F.2d at 809.

We need go no further. Because Fed. R. Crim. P. 33

cannot be invoked to undermine a conviction predicated upon a

guilty plea, we deny appellant's motion to remand. To do

otherwise would promote an exercise in futility.

Affirmed.
Affirmed.

19