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United States v. Marrero Rivera

Court: Court of Appeals for the First Circuit
Date filed: 1997-09-09
Citations: 124 F.3d 342
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                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

No. 97-1051

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                     JOS  A. MARRERO-RIVERA,

                      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, Circuit Judge,
                                                    

                    Cyr, Senior Circuit Judge,
                                                       

                   and Keeton,* District Judge.
                                                        

                                           
                                                     

   Linda Backiel for appellant.
                          
   W. Stephen Muldrow, Assistant United States Attorney, with whom
                               
Guillermo Gil, United States Attorney, Jos  A. Quiles-Espinosa, Senior
                                                                      
Litigation Counsel, Edwin O. V zquez, Deputy Chief, Criminal Division,
                                            
and Nelson P rez-Sosa, Assistant United States Attorney, were on brief
                             
for appellee.

                                           
                                                     

                        September 8, 1997
                                           
                                                     

                  
                            

   *Of the District of Massachusetts, sitting by designation.


          CYR, Senior Circuit  Judge.  Appellant Jos   A. Marrero
                    CYR, Senior Circuit  Judge.
                                              

Rivera  ("Marrero") contends  that the  district  court erred  in

denying his motion to withdraw his guilty plea, see Fed. R. Crim.
                                                             

P. 32(e), and miscalculated the  quantity of cocaine for which he

was  held criminally  responsible at  sentencing.  We  affirm the

district court judgment.

                                I
                                          I

                            BACKGROUND
                                      BACKGROUND
                                                

          Appellant  Marrero,  owner  and  operator  of  a  small

"cafeter a,"  employed  one  Jes s  Flette  Hidalgo  ("Flette").1

After  unwittingly negotiating with  undercover DEA agents  and a

confidential informant,  Flette agreed  to supply  them with  ten

kilograms of  cocaine, then  transmitted a  message to  Marrero's

beeper stating  that "ten jet  skis" should be prepared.   Flette

later  emerged from the Marrero business establishment carrying a

box  containing one  kilogram of  cocaine.   Shortly  thereafter,

Marrero was arrested in possession  of the beeper to which Flette

had transmitted the "ten jet skis" message.2

          Marrero  initially entered a  "not guilty" plea  to the

charge  of conspiring  with  Flette to  possess,  with intent  to
                    
                              

     1The record is silent as to the work Flette was required to
perform for Marrero.

     2The government contended that the one kilogram contained in
the box was a  sample, intended to demonstrate the quality of the
ten kilograms to be supplied. 
     Three months after  pleading guilty, Marrero  first asserted
that he had not  known what was in  the box which he left  at the
cafeteria for Flette following his  receipt of the "ten jet skis"
message on the beeper.

                                2


distribute, ten kilograms of cocaine in violation of 21 U.S.C.   

841(a)(1), 846.  Thereafter, Marrero's lead counsel, Jos  Aguayo,

Esquire, advised that a plea agreement would be in Marrero's best

interests and tried to persuade him  to plead guilty.  Later,  on

July 19, 1996, confronted with a 5:00 p.m. deadline for informing

the  government  whether  he would  change  his  plea, and  after

consulting  with a second attorney, Marrero ultimately decided to

plead guilty.3

A.   The Rule 11 Hearing
          A.   The Rule 11 Hearing
                                  

          On July  22, 1996,  Marrero pled  guilty pursuant  to a

plea agreement and  the district court conducted  a comprehensive

Rule 11 hearing.  See Fed. R.  Crim. P. 11.  The court  inquired,
                               

inter alia, into Marrero's educational and employment background.
                    

Marrero stated that he had  read, signed, and understood the plea

agreement, after discussing it with counsel.  He further acknowl-

edged  that he  was satisfied  with  Attorney Aguayo's  represen-

tation, that he  understood the indictment discussed  with him by

counsel,4 and that he understood his legal rights as explained by
                    
                              

     3Even  after meeting with both counsel, however, Marrero had
remained  determined to proceed to trial.  At around 3:30 or 4:00
p.m., Marrero and  Aguayo went to a  local bar for about  an hour
while  a potential  defense  witness  decided  whether  he  would
testify without a subpoena.

     4Count  1 alleged that  Marrero and Flette  "did unlawfully,
                                                                          
willfully, and intentionally combine, conspire, confederate,  and
agree together  with each other,  to commit offenses  against the
                                                              
United  States,  to  wit:  willfully,  knowingly  and  unlawfully
                                                                           
attempting  to possess  with intent to  distribute multi-kilogram
                                                            
amounts, that  is, ten (10)  kilograms of cocaine, a  schedule II
                                                           
narcotic  drug  controlled  substance,  that  is,  conspiracy  to
                                                                           
violate Section 841(a)(1) of Title 21, United States Code.
                                                                   
     All  in violation of  Title 21, United  States Code, Section
                                                                           

                                3


the court.

          The  district court then went through the indictment in

abbreviated fashion.5 Marrero acknowledged that he understood the

potential penalties attending the conspiracy charge and explicit-
                                                                           

ly agreed  that he was criminally responsible for conspiring with
                                                                           

Flette to  distribute ten kilograms  of cocaine.  He  assured the
                                                         

court that he  had not been coerced or  intimidated into pleading

guilty; that he had read  and signed the "Government's Version of

the Facts" appended to the plea agreement, and, after  discussing

it with Attorney Aguayo, acknowledged that the actual events were

as recited by the government.  

          The prosecutor then described the factual predicate for

the  guilty plea, including  the meeting  between Flette  and the

undercover agents, at which it  was "agreed that Jesus Flette and

persons working with him would provide 10 kilograms of cocaine to

                    
                              

846."
             
     (Emphasis added.)

     5The  Rule 11  colloquy regarding  the  indictment proceeded
essentially as follows: 

          [Court]:  "Now, in  Paragraph  1 of  the plea
          agreement, you agree to plead guilty to Count
          One of the  indictment, charging a  violation
          of  Title  21,  U.S.  Code, Section  846  and
          841(a)(1).  Is that so?"
          [Marrero]: "Yes, sir."
          [Court]: "And  Count  One  charges  you  with
          conspiring with others to unlawfully attempt-
          ing   [sic]   to  possess   with   intent  to
          distribute  multi-kilograms,   that  is,   10
          kilograms  of  cocaine  .  .  .  that  is,  a
          conspiracy  to violate  Section 841(a)(1)  of
          Title 21.  Is that so?"
          [Marrero]: "Yes, sir."

                                4


the  undercover DEA  agents."   The prosecutor  stated that  "[a]

beeper message was  sent to a pager company,  indicating that the

ten jet skis should be  prepared because the buyers were ready."6

Further,  the prosecutor  described how  Flette  had entered  the

Marrero cafeteria and left with the box of cocaine, and how, when

arrested, Marrero was  carrying the beeper  bearing the "ten  jet

skis" message from  Flette.  Finally, the  prosecutor represented

that  Flette  would  establish that  Marrero  had  "willingly and

knowingly conspired with Jesus Flette and others to distribute 10

kilograms of cocaine and in  fact did distribute the one kilogram

of cocaine."  At this point, Marrero agreed with the government's

version of the  relevant events as  described by the  prosecutor.

The district  court accepted  the guilty  plea after  determining

that it was voluntary, knowing, and intelligent. 

B.   The Rule 32(e) Hearing 
          B.   The Rule 32(e) Hearing 
                                     

          Shortly after the  presentence-investigation interview,

and some three months after the Rule 11 hearing, Marrero moved to

withdraw the  guilty plea, see  Fed. R. Crim. P.  32(e), claiming
                                        

that it  was:   (1) involuntary, in  that he  had succumbed  to a

sense  of helplessness and futility when confronted with Attorney

Aguayo's  advice  that   the  benefits  of  the   plea  agreement

outweighed  the risks of  conviction at trial;  (2) not "intelli-

                    
                              

     6The  Government's Version of the Facts described the beeper
message as: "Jesus Flete then sent a message  to a beeper service
to be  forwarded to  the beeper of  the defendant,  Jose Marrero-
Rivera.  That  message stated that the ten  'jet skis' (referring
to the ten kilos of  cocaine) should be prepared." (parenthetical
in original).

                                5


gently"  made,  as it  had  been  premised on  several  incorrect

assumptions,  including that he  was guilty of  conspiracy simply

because he  had received and  retained the box for  his employee,

Flette,  even though he  had no  contemporaneous knowledge  as to
                                                                           

what was  in the box;  (3) not "knowingly"  made, in that  he had
                              

delegated  to counsel the responsibility for reviewing and inter-

preting the plea  agreement, and thought that once  he had agreed

to change his plea he would  have to sign the plea agreement  and
                                              

provide affirmative responses during the change-of-plea colloquy;

(4) not adequately  supported by the Government's  Version of the

Facts, or  the prosecutor's summary  during the Rule  11 hearing,

because there was  no demonstration that  Marrero had known  that

the box  he had  held in  his hands  contained cocaine;  and (5),

predicated on an inadequate Rule 11 inquiry, in that the district

court  neither  asked,  nor   determined,  whether  Marrero   had

understood the mens rea element for the crime of conspiracy.
                                 

          At  the ensuing  Rule  32(e)  hearing, Attorney  Aguayo

testified that he  had explained the  plea agreement to  Marrero,

but did  not coerce him to sign it.  Upon inquiry by the district

court, as  to whether Aguayo  had "explain[ed] the nature  of the

charges"  and  "the  issue  about  .  .  .  the  requirement  the

government   had  to  prove  his  knowing  participation  in  the

conspiracy," Aguayo replied that he  had done so and that  he had

"explained . . .  very clearly that . . . in  order for the Court

to accept a plea  of guilty there had  to be a basis in  fact for

it."   Marrero  responded by  introducing notes,  used by  Aguayo

                                6


during  their  change-of-plea  conference,  describing  Marrero's

admission as  follows:  "What  I did  . . .  A person came  to my

business  and left  a  package  for Jesus  Flette.   The  package

contained cocaine."

          The district court found a sufficient factual predicate

for  the guilty  plea,  citing  in  particular  the  Government's

Version of  the Facts,  with which Marrero  had agreed  and which

explicitly noted that  the "ten jet skis" message  from Flette to
                          

Marrero meant ten kilograms  of cocaine.  See supra note  6.  The
                                                             

court  construed this to  mean that Marrero  thereby acknowledged

not only  the true  purport of the  beeper message,  but admitted

that he had so understood the message at the time he received it.

Further,  the  court  considered  its  earlier  Rule  11  inquiry

adequate to  support a  reliable determination  that Marrero  had

understood  the conspiracy indictment and the plea agreement, and

expressly  had  agreed  that he  was  criminally  responsible for

conspiring  to  sell ten  kilograms  of  cocaine.   Finally,  the

district court found nothing, either in the plea agreement or the

Rule  11 hearing  transcript,  which  warranted  a  finding  that

Marrero had not understood  what he was admitting to  at the Rule

11 hearing.  Accordingly, the district court denied the motion to

withdraw the guilty plea.

                                II
                                          II

                            DISCUSSION
                                      DISCUSSION
                                                

A.   Plea Withdrawal Before Sentencing
          A.   Plea Withdrawal Before Sentencing
                                                

     1.   Legal Framework
               1.   Legal Framework
                                   

                                7


          We begin with bedrock principles.  There is no absolute

right to withdraw a guilty plea  prior to sentencing.  See United
                                                                           

States v. Pellerito,  878 F.2d 1535, 1537 (1st  Cir. 1989), cert.
                                                                           

denied, 502 U.S.  862 (1991).  Rather, a defendant may be allowed
                

to withdraw a guilty plea before sentencing  only for a "fair and

just reason."  See  United States v.  Cotal-Crispo, 47 F.3d 1,  3
                                                            

(1st Cir.), cert. denied, 116 S. Ct. 94 (1995); see also  Fed. R.
                                                                  

Crim. P. 32(e) ("the court may permit the plea to be withdrawn if

the  defendant shows any fair  and just reason").   The burden of

persuasion rests with  the defendant.  United States  v. Isom, 85
                                                                       

F.3d 831, 834 (1st Cir. 1996); United States  v. Parrilla-Tirado,
                                                                          

22 F.3d 368, 371 (1st Cir. 1994).

          The  district court  must  consider several  factors in

determining whether the burden of  persuasion has been met by the

defendant,  the most  significant  being  whether  the  plea  was

voluntary,  intelligent and knowing,  within the meaning  of Rule

11.   Cotal-Crispo, 47  F.3d at 3;  United States v.  Allard, 926
                                                                      

F.2d 1237, 1243 (1st Cir. 1991).  Other relevant  considerations,

see pp. 22-25, include:   (1) the plausibility and weight of  the
             

proffered reason; (2) the timing  of the request; (3) whether the

defendant asserted legal  innocence; and (4) whether  the parties

had reached,  or breached, a  plea agreement.   Isom, 85  F.3d at
                                                              

834; Cotal-Crispo, 47 F.3d at 4.  Finally, assuming the defendant
                           

carries  the burden of persuasion on the aforementioned consider-

ations,  the  district  court  must  weigh  in  the  balance  any

demonstrable  prejudice  to  the  government  were the  defendant

                                8


allowed to withdraw the plea.   Isom, 85 F.3d at  835; Pellerito,
                                                                          

878 F.2d at 1537.

          At the outset, it is particularly important to note the

difficult  appellate terrain which  the present challenge  to the

district court's Rule 32(e) determination must traverse; that is,

the factfinding underlying the plea withdrawal  ruling may not be

set  aside for  anything less  than  "clear error."   See,  e.g.,
                                                                          

Pellerito, 878 F.2d at 1538  ("Confronted with an attempt at plea
                   

retraction,   the   trial   judge  must   make   an   idiocratic,

particularistic, factbound  assessment    an assessment  which is

facilitated because the judge has  overseen pretrial proceedings,

conducted the  Rule 11  inquiries, accepted  the original  guilty

plea,  and heard  at  first  hand the  reasons  bearing upon  its

withdrawal.").

          If the district court's  account of the  evi-
          dence is  plausible  in light  of the  record
          reviewed  in  its   entirety,  the  court  of
          appeals  may  not  reverse   it  even  though
          convinced  that had  it been  sitting as  the
          trier  of  fact, it  would  have weighed  the
          evidence differently.   Where  there are  two
          permissible  views   of  the   evidence,  the
          factfinder's  choice between  them cannot  be
          clearly erroneous.

Cumpiano v. Banco  Santander Puerto Rico, 902 F.2d  148, 152 (1st
                                                  

Cir. 1990)  (citing Anderson v.  City of Bessemer City,  470 U.S.
                                                                

564, 573-74 (1985) (bench trial findings))).  Moreover, we accord

considerable  deference to  the  firsthand assessment  ultimately

made  by the  district court,  which  must be  affirmed absent  a

demonstrable abuse of  discretion.  See United States v. Sanchez-
                                                                           

Barreto, 93 F.3d 17, 23 (1st Cir. 1996), cert. denied, 117 S. Ct.
                                                               

                                9


711 (1997) (Rule 32(e) findings).

     2.   Core Rule 11 Concerns
               2.   Core Rule 11 Concerns
                                         

          We  first  inquire  whether   certain  "core"  Rule  11

concerns  were met.   Rule  11  was "intended  to  ensure that  a

defendant who pleads guilty does so with an 'understanding of the

nature of the charge and the consequences of his plea.'"   Cotal-
                                                                           

Crispo, 47 F.3d at 4 (quoting McCarthy v. United States, 394 U.S.
                                                                 

459, 467 (1969)); United States  v. Medina-Silverio, 30 F.3d 1, 2
                                                             

(1st Cir. 1994); see  also Fed. R. Crim. P.  11(c).  Accordingly,
                                    

the  Rule 11  hearing should  "produce a  complete record  of the

factors relevant  to that determination  so as 'to  eliminate any

need to resort  to a later factfinding proceeding  in this highly

subjective area.'"  Allard, 926  F.2d at 1244 (quoting  McCarthy,
                                                                          

394 U.S. at 469).7  

          A  total failure to address any "core concern" mandates
                                                   

that  a guilty  plea be set  aside.   See Isom,  85 F.3d  at 835;
                                                        

United States v. Gray,  63 F.3d 57,  60 (1st Cir. 1995);  Medina-
                                                                           

Silverio,  30 F.3d  at 3.    Otherwise, we  consider whether  any
                  

particular defect in the Rule 11 hearing affected the defendant's

"substantial  rights."  See id.; Fed. R. Crim. P. 11(h); see also
                                                                           

United States v.  Martinez-Martinez, 69 F.3d 1215, 1219 (1st Cir.
                                             

1995)  (Rule 11(h)  "harmless  error"  rule  excuses  "minor  and

technical violations"),  cert. denied,  116 S.  Ct. 1343  (1996);
                                               

                    
                              

     7We  have identified  three "core"  Rule  11 concerns:   (1)
voluntariness     i.e., absence of coercion; (2) understanding of
                                
the charge; and  (3) knowledge of the consequences  of the guilty
plea.  See Medina-Silverio, 30 F.3d at 2.
                                    

                                10


United  States v.  Raineri, 42  F.3d  36, 41-42  (1st Cir.  1994)
                                    

(harmless  error   analysis  usually   looks  to   whether  error

influenced decisionmaker or  ultimate outcome, but these  are not

only proper considerations under Rule 11(h); "substantial rights"

not violated where defendant was not properly informed of maximum

penalty but received lesser sentence than maximum), cert. denied,
                                                                          

515  U.S. 1126 (1995).  In determining  whether there was a total

failure  to address a  core Rule 11  concern, we  review all "the

circumstances  surrounding the Rule 11 hearing . . . [with a view

to determining]  what was  communicated by  the trial  court, and

what should  reasonably have  been understood  by the  defendant,
                                                                          

rather than  the form  of the  communication."  Cotal-Crispo,  47
                                                                      

F.3d at 4-5 (citations omitted) (emphasis added). 

          (a)  Voluntary Plea 
                    (a)  Voluntary Plea 
                                       

          Marrero  maintains  that  Aguayo   pressured  him  into

accepting  the plea  agreement at  the  last minute,  even though

Marrero was still  "inclined to go to trial" within an hour or so

before  the deadline  for changing  his plea.   Marrero  paints a

vivid  picture:   "definitely anxious  .  . .  more anxious  than

usual,"  waiting at  a local  bar,  with his  attorney, to  learn

whether or not a potential witness would agree to testify without

a subpoena, before deciding at the eleventh hour to accede to his

attorney's  importunings to accept  the plea bargain  tendered by

the  government.8   Furthermore,  as  he did  at  the Rule  32(e)
                    
                              

     8During  the Rule 32(e) hearing, Aguayo testified that while
waiting at the  bar he had a  beer, but could not  recall whether
Marrero did.  As Marrero has not alleged that he had  anything to

                                11


hearing,  Marrero  contends  that  Aguayo's  description  of  the

prospective  sentence was overly rosy,9 whereas his estimation of

the  prospects for  success at  trial  was unduly  pessimistic.10

Notwithstanding  Marrero's resourceful  challenge,  there was  no

clear error or abuse of discretion in the finding that the guilty

plea was voluntary.

          At  the   Rule   11   hearing,   the   district   court

appropriately  inquired  whether  Marrero was  acting  freely and

whether  anyone had  coerced him into  pleading guilty.   Marrero

reassured  the district  court under  oath that  he was  pleading

freely  and that  no  one had  attempted to  coerce him.   Aguayo

corroborated these representations.  Accordingly, Marrero's sworn

responses  were reasonably  credited by  the  district court,  as

"[i]t  is  the policy  of  the law  to  hold  litigants to  their

assurances."  Parrilla-Tirado,  22 F.3d at  373; see also  United
                                                                           

States v.  Martinez-Molina,  64 F.3d  719,  733 (1st  Cir.  1995)
                                    

(statements  at plea  hearing  "carry  a  strong  presumption  of

verity" (quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977))).
                                                
                    
                              

drink, however,  there is  no suggestion in  the record  that the
guilty plea was rendered involuntary in this regard.

     9For example,  Marrero points  to  Aguayo's suggestion  that
there was  a "drug  program" pursuant to  which Marrero  might be
able to reduce his sentence by a year, that he would  be eligible
for "good-time" credits, and that he could spend the final 10% of
his prison stay in a half-way house.

     10Marrero also faults  Aguayo's failure to  advise him of  a
possible  defense (i.e., that  Marrero lacked the  requisite mens
                                                                           
rea  for  conspiracy), and  for  failing  to  mention either  the
             
possibility that Flette's testimony might be vulnerable on cross-
examination  or that certain favorable jury instructions might be
given.

                                12


          Moreover,  Marrero's  belated  representation  that  he

believed he had to answer all questions in the affirmative during
                            

the Rule  11 colloquy  cannot be credited,  on its  face, without
                                                                  

virtually  displacing  the  "clear  error"   standard  of  review

governing the appellate inquiry.   Cf. United States v. Butt, 731
                                                                      

F.2d  75,  80 (1st  Cir. 1984)  (even where  appellant represents

that, upon advice of counsel, he uttered false statements at Rule

11 hearing,  those statements  will be  presumed true  unless the

contrary  allegations state a claim for ineffective assistance of

counsel  and include credible,  valid grounds for  departing from

the normal presumption).

          Similarly,  there  is  no   affirmative  evidence  that

Marrero acted involuntarily.  Consequently, even assuming counsel

persuaded  him that  a  guilty plea  would  best serve  Marrero's

interests,  the resultant  plea  would  not  have  been  rendered

"involuntary."   See Miles  v. Dorsey, 61  F.3d 1459,  1470 (10th
                                               

Cir.  1995), cert.  denied, 116  S. Ct.  743 (1996);  Williams v.
                                                                        

Chrans,  945 F.2d  926, 933  (7th  Cir. 1991)  ("'Advice     even
                

strong urging'  by counsel does  not invalidate a  guilty plea.")

(quoting Lunz v. Henderson, 533  F.2d 1322, 1327 (2d Cir.), cert.
                                                                           

denied, 429 U.S. 489 (1976)), cert. denied, 502 U.S. 1208 (1992).
                                                    

          Nor can the mere fact that Marrero and counsel may have

undervalued the merit of any potential defense render the Rule 11

plea involuntary.   See United  States v. Muriel, 111  F.3d. 975,
                                                          

981  (1st Cir.  1997) ("This  court  has not  allowed defendants,

absent coercion or  mistake, to renege on plea  agreements on the

                                13


basis that  they have miscalculated  their risks and  benefits or

have  belatedly  discovered   a  new  defense.").     Rather,  in

determining  whether  to  arrive at  a  plea  agreement, criminal

defendants,  with the  assistance of  counsel,  must compare  the

merit  of their  defenses with  the strength of  the government's

case, as well as the penalties likely to be imposed pursuant to a

plea  agreement  or following  trial.    Were  it otherwise,  and

belatedly-realized mistakes  in their  pre-plea assessments  were

deemed  sufficient, without  more, to  warrant plea  withdrawals,

"plea agreements and the pleas entered pursuant to them [would be

rendered] meaningless."  Allard, 926 F.2d at 1243.
                                         

          Often the decision to plead guilty is heavily
          influenced  by the  defendant's appraisal  of
          the prosecution's case against him and by the
          apparent  likelihood  of   securing  leniency
          should a guilty plea be offered and accepted.
          Considerations like these  frequently present
          imponderable questions for which there are no
          certain answers;  judgments may be  made that
          in   the   light   of   later   events   seem
          improvident,  although  they  were  perfectly
          sensible at  the time. .  . . A  defendant is
          not  entitled  to  withdraw his  plea  merely
          because he discovers long after  the plea has
          been  accepted  that his  calculus  misappre-
          hended the quality of the State's case or the
          likely  penalties  attached   to  alternative
          courses of action.

Brady v. United States, 397 U.S. 742, 756-57 (1970).  
                                

          Finally, the strategic decision to plead guilty was not

rendered  involuntary   by  the  anxieties  and   time  pressures

confronting  Marrero.  The  unenviable position in  which Marrero

found himself  is common  among criminal  defendants, and  hardly

exceptional enough  to evince  an overbearing of  his will  or to

                                14


have  precluded a rational  assessment of the  available options.

See id. at 750 (no evidence  defendant was so gripped by fear  of
                 

possible  death penalty  as  to  preclude  rational  weighing  of

advantages of trial with advantages  of guilty plea); Dorsey,  61
                                                                      

F.3d  at 1470 ("Although  deadlines, mental  anguish, depression,

and stress are inevitable hallmarks of pretrial plea discussions,

such  factors  considered  individually or  in  aggregate  do not

establish that  petitioner's plea was  involuntary."); Pellerito,
                                                                          

878   F.2d  at   1541  ("Criminal   prosecutions  are   stressful

experiences  for  nearly all  concerned  .  .  . .  The  relevant

question for  plea withdrawal is  . . .  whether the  decision to

plead was voluntary, i.e., a product of free will."). 
                                   

          (b)  Knowing and Intelligent Plea
                    (b)  Knowing and Intelligent Plea
                                                     

          The main focus  of the Rule 32(e) claim  in relation to

the second core  concern is that Marrero did  not understand, nor

was   he  informed  about,  the  mens  rea  requirement  for  the
                                                    

conspiracy charge     viz. that the government had  to be able to
                                    

prove he  knew, at  the time,  that the  box he  left for  Flette

contained  cocaine and constituted  a one-kilogram sample  of the

ten  kilograms to  be  delivered to  the  buyers.   In  a closely

related  contention, Marrero insists  that there was  no adequate

factual predicate for the guilty plea since he simply admitted to
                 

having  knowingly  held the  box  for  Flette  and that  the  box

contained cocaine, but that he did not  know, at the time he held
                                                                           

the box, that it contained cocaine.
                 

          There  was no  "clear  error"  in  the  district  court

                                15


finding  that  Marrero  understood  the  nature  of  the  cocaine

conspiracy  charge at the Rule 11  hearing.  Marrero acknowledged

under  oath  that  he  had  read,  discussed  with  counsel,  and

understood  the indictment.   He endorsed the  factual summary of

the offense given by the government at the Rule 11 hearing.  Both

the indictment and the government's version  of the facts plainly

referred  to  the  requisite  mens  rea  for  conviction  of  the
                                                 

conspiracy offense.11   Thus, Marrero was explicitly  informed of
                                                              

the mens rea requirement for the conspiracy charge.12
                      

          Nor are we  unmindful that Marrero claims  to have been

undone by  the nuances of  conspiracy law.   But  while a  layman

might not be expected to  understand, ab initio at least, exactly
                                                         

what he  need have known to  be found culpable as  a conspirator,

there can have  been little question as  to the point in  time by
                                                                           

which the requisite  culpable knowledge need have  been acquired;
                                                                          

to  wit, before  the defendant's  conspiratorial involvement,  if

any,  terminated.   In  truth then,  the  contention Marrero  now

raises  concerning whether his  guilty plea was  "intelligent" is

                    
                              

     11The  indictment,  see supra  note  4,  was  replete   with
                                            
language  affording Marrero notice of the requisite knowledge and
intent.   See  also  supra note  5.    Moreover,the  prosecutor's
                                    
summary of  the facts,  see supra pp.  4-5, stated  that Flette's
                                           
testimony would establish that  Marrero "willingly and  knowingly
conspired"  with Flette to  distribute ten kilograms  of cocaine,
and did distribute one kilogram.

     12The  record evidence further  reflects that Marrero  is an
adult  male, age 37,  who completed  high school  and went  on to
become a commercial  airline pilot.   At the time of  his arrest,
Marrero owned and operated his own small cafeteria business.  The
district court  found that Marrero  was alert and  understood the
Rule 11 proceedings.

                                16


not, as he would have it, dependent upon his understanding of the

intricacies  of conspiracy  law, but  on  the commonsense,  near-

universal  understanding  that  one  cannot  be  held  criminally

responsible for agreeing to cooperate with another in effecting a

lawful enterprise.  Thus, the upshot of the present contention is
                

that Marrero pled  guilty to a felony cocaine  charge, carrying a

potential life-imprisonment term,  knowing all the while  that he

had never agreed to distribute cocaine.

          At bottom, therefore,  what Marrero points to  as clear

error is the  district court finding     both at the Rule  11 and

the Rule 32(e)  hearing    that Marrero conspired  with Flette to

sell ten kilograms  of cocaine, knowing that the  object of their

agreement was unlawful.   Even so, it was not  essential that the
                                

evidence establish that  Marrero knew the box  contained cocaine.

Rather, it was only necessary to establish an evidentiary founda-

tion upon  which the  district court reasonably  could find  that

Marrero and  Flette knowingly agreed  to supply ten  kilograms of

cocaine.  See, e.g., United States v.  De La Cruz, 996 F.2d 1307,
                                                           

1311  (1st Cir.)  (although  defendant  never  saw  or  possessed

cocaine, and  there was no  direct evidence that  he knew of  its

existence, a combination of circumstantial factors    presence at

scene,   suspicious  conduct,   subordination  to   drug  leader,

possession of cellular  phone and beeper    allowed  jury to draw

inference  that scienter  elements of  conspiracy were  present),

cert. denied,  510  U.S.  936  (1993).    Among  the  evidentiary
                      

considerations  which sufficed, in combination, to support such a

                                17


showing,  were Marrero's  repeated  admissions  at  the  Rule  11
                                                        

hearing  that he  had  conspired with  Flette  to distribute  ten

kilograms of cocaine; the  employer-employee relationship between

Marrero  and Flette;  the beeper  message  Marrero received  from

Flette   to  prepare  "ten  jet  skis";  the  government  agents'

representations;  the kilogram of  cocaine seized by  the agents;

and  Marrero's acknowledgement  that the government's  version of

the facts, see supra pp. 4-5, was correct.  Furthermore, although
                              

it is conceivable that Marrero did not know the box contained co-

caine, there is no dispute that it did contain cocaine.
                                                

          Therefore, given the undisputed physical evidence,  and

Marrero's  admission  that   he  did  conspire  with   Flette  to

distribute  ten  kilograms  of  cocaine,  the  district   court's

findings, both at the Rule 11 hearing and the Rule 32(e) hearing,

were not only entirely plausible, but far more plausible than the

scenario belatedly suggested  by Marrero, even assuming  he never

knew the box contained cocaine.   See Sanchez-Barreto, 93 F.3d at
                                                               

23; Cumpiano, 902 F.2d at 152.
                      

          The effort to  establish that Marrero did  not know the

box contained  cocaine is  impeded by  two additional  obstacles.

First,  Marrero  must  persuade  us  that  the  district  court's

contrary  assessment constituted  an abuse  of  discretion.   See
                                                                           

Sanchez-Barreto, 93  F.3d at 23.  Second, after repeatedly repre-
                         

senting at the  Rule 11 hearing that he did  conspire with Flette
                                                     

to distribute ten  kilograms of cocaine, the plausibility  of his

present contention  is  seriously diminished  by  his  continuing

                                18


failure,  even at  this late  date,  to attempt  to articulate  a

theory  upon which  it  might be  determined, given  the evidence

relied upon by the government at the Rule 11 hearing, that he did

not conspire with  Flette.  Thus, whether or not Marrero knew the
             

box contained cocaine  at the time he  left it for Flette,  there

was ample basis  for the  district court  rationally to  conclude

that he did, as well as an abundant evidentiary foundation at the

Rule 11  hearing for  finding the  guilty plea  "intelligent" and

"knowing," especially  in light  of Marrero's  assurances to  the

district court that he had discussed the nature of the conspiracy

charge  with Aguayo  and  understood  it.   On  this record,  the

district court's firsthand assessment that Marrero's  guilty plea

was knowingly and intelligently made did not  constitute an abuse

of discretion.  See id. 
                                 

          Finally,  after  reviewing  the entire  record,  we can

discern  nothing that might have indicated to the district court,

in any way,  that Marrero either did not  understand, or had been

misinformed by counsel  regarding, any element of  the conspiracy

charge  lodged  against him.    Rather,  all responses  given  by

Marrero during the Rule 11 colloquy were entirely consistent with

a correct  and  comprehensive  understanding  of  the  conspiracy

charge and its elements.  See Isom, 85 F.3d at 833,  836 (holding
                                            

that   nothing  in   record  indicated   that  defendant   lacked

understanding of charges); United States v.  Ramos, 810 F.2d 308,
                                                            

314 (1st  Cir. 1987) (no doubts raised  as to competence to plead

until plea-withdrawal motion); Marquis v. United States, 698 F.2d
                                                                 

                                19


13,  16 (1st  Cir. 1983) (no  indication at Rule  11 hearing that

plea was  involuntary or  product of  misunderstanding); contrast
                                                                           

Gray, 63 F.3d  at 60 (defendant represented that  he was confused
              

about  consequences  of  guilty plea);  United  States  v. Ribas-
                                                                           

Dominicci, 50 F.3d 76, 79  (1st Cir. 1995) (responses during Rule
                   

11 colloquy "should have  alerted the court that  [defendant] was

claiming  that, at  the  time  the trousers  were  sold to  third

parties, he did not intend to commit a  crime"); United States v.
                                                                        

Ruiz-Del Valle,  8 F.3d 98,  103 (1st Cir. 1993)  (charge neither
                        

read nor explained, and defendant made statement that should have

put court on notice that she did not understand firearms charge);

United  States v.  Valencia, 923  F.2d 917,  921 (1st  Cir. 1991)
                                     

(defendant  expressed confusion  about jurisdictional  element of

charge);  Mack v.  United States,  635 F.2d  20, 24-25  (1st Cir.
                                          

1980) (where defendant  stated first that he had  been coerced, a

contradictory  statement that plea was voluntary could not simply

be accepted by district court    "Once Mack stated that the  plea

was not made  of his  own free  will, the court  was required  to

undertake a more searching inquiry." (citations omitted)). 

          (c)  Evidentiary Predicate For Guilty Plea
                    (c)  Evidentiary Predicate For Guilty Plea
                                                              

          For similar reasons,  we reject the further  claim that

the factual predicate for the guilty plea was inadequate.  First,

Marrero  conceded that  the  government  could  prove,  beyond  a

reasonable  doubt, that  he "willingly  and knowingly  conspired"

with Flette and others to distribute ten kilograms of cocaine and

that they  actually distributed  one kilogram  to the  undercover

                                20


agents.   The district court  was entitled to credit  these sworn

judicial  admissions.  Parrilla-Tirado, 22 F.3d  at 373 ("[i]t is
                                                

the policy of the law to hold litigants to their assurances.").

          The district court  record further  supports a  finding

that  Marrero had  the requisite  culpable  state of  mind.   The

government's  version  of  the  facts  stated  that  Marrero  had

received a beeper message to prepare "ten jet skis," specifically
                                                                           

noting that "jet skis" meant  cocaine.  Marrero explicitly stated
                                               

that he had read the government's version of the facts, discussed

it with counsel, and acknowledged its truth.

          Marrero nonetheless contends on appeal  that the record

does  not indicate  that  he  understood  that  the  government's
                                      

rendition of "jet skis" (as  a code term for "cocaine") purported

to   describe  what   Marrero,  as  distinguished   from  Flette,

understood  the term  to mean.   In  addition, he now  notes that

there is  no record  evidence that "jet  skis" was  a prearranged

code, and denies  having known that it meant  anything other than

aquatic jet skis.
                 

          The factual predicate for the requisite mens rea may be
                                                                    

inferred from all the evidence alluded to at the Rule 11 hearing.

See United States  v. Japa, 994 F.2d 899, 903-04  (1st Cir. 1993)
                                    

(factual predicate for  mens rea met even though  court failed to
                                          

ask during  Rule 11 colloquy,  with regard to one  count, whether

defendants had requisite intent, where intent reasonably could be

inferred  from their admission  of intent in  relation to another

count); Cotal-Crispo,  47 F.3d at  4-5 ("What is critical  is the
                              

                                21


substance of what  was communicated by the trial  court, and what

should reasonably have  been understood by the  defendant, rather

than the form of the communication.") (citations omitted).

          Altogether aside  from the  fact that  Marrero has  not

attempted to explain  to us why he  would have received a  beeper

message from Flette to prepare  "ten jet skis," absent any record

indication  or  contention that  either  he  or  Flette dealt  in

aquatic   "jet  skis,"  there  is  no  suggestion  from  Marrero,

plausible  or otherwise,  as to why  the undercover  agents would

have offered  Flette $18,000 for each  "jet ski."13  More  to the

point, were we to postulate that the term "jet skis" did refer to

the  aquatic variety,  we would be  at a total  loss ourselves to

explain the uncontested fact that the box Flette delivered to the

undercover  agents contained  cocaine.  Accordingly,  we conclude

that  the district court reasonably found that Marrero understood

that the  beeper  message he  received  from Flette  referred  to

cocaine, particularly in  light of Marrero's Rule  11 admissions.

See, e.g., supra note 13.
                          

          Finally,  Marrero maintains that  he did not understand

the conspiracy charge and that  once he understood it he realized

                    
                              

     13Marrero  explicitly acknowledged  the  correctness of  the
Government's Version  of the Facts, which states  that the agents
offered to buy "ten jet skis"  at $18,000 each.  Thus, there  was
no  clear error  in  the district  court's  finding that  Marrero
understood,  at the  time he  received  it, that  the "jet  skis"
message  referred  to  cocaine.    In  addition,  of course,  the
indictment to  which Marrero pled  guilty did not speak  in code,
but  plainly alleged,  as an  overt act, that  Flette had  sent a
beeper  message to Marrero  "providing instructions regarding the
sale of ten (10) kilograms of cocaine."  

                                22


he was not guilty.   See Parrilla-Tirado, 22 F.3d at  373 (asser-
                                                  

tion of innocence  weighs in favor of withdrawal).   He relies on

notes made by  Aguayo during their Rule 11 conference, indicating

that  Marrero  had admitted  that  the  box  he left  for  Flette

contained cocaine.   Although  Aguayo stated  at  the Rule  32(e)

hearing that he had explained to Marrero the nature of the charge

and that  there had to be a factual basis  for it, Aguayo was not

asked to  explain precisely  how he  had described  the requisite

factual basis.  See supra p. 6.
                                   

          We  cannot  permit  Marrero to  exploit  this  putative

omission on direct appeal absent  a fully developed record, as it

amounts to a Sixth Amendment "ineffective assistance" claim.  See
                                                                           

United  States  v.  Lopez-Pineda,  55 F.3d  693,  697  (1st Cir.)
                                          

(inadequate record  precludes review of  "ineffective assistance"

claim  on direct appeal;  collateral review remains  open), cert.
                                                                           

denied, 116 S.  Ct. 259 (1995); United States  v. Tuesta-Toro, 29
                                                                       

F.3d 771,  776 (1st  Cir. 1994)  (collateral proceeding  under 28

U.S.C.   2255 is proper forum for fact-bound "ineffective  assis-

tance" claim, where record is insufficiently developed for direct

review), cert.  denied, 115  S. Ct. 947  (1995); see  also United
                                                                           

States v.  McDonald,      F.3d    ,      , 1997  WL 464957 * (1st
                                                   

Cir.  August 20, 1997).   Further factual  development is plainly

necessary  as the present  claim implicitly presumes  that Aguayo
                                                              

rendered  ineffective assistance.  Although there could be little

doubt  that an "ineffective  assistance" claim would  lie were it

made to appear that defense counsel failed to explain, prior to a

                                23


Rule 11  hearing, that  the defendant could  not be  convicted of

conspiracy  under 21  U.S.C.     841(a)(1),  846,  unless he  had

knowingly conspired to  distribute cocaine, we  are not about  to
                   

presume professional ineptitude on the part of counsel. 

     3.   Other Relevant Factors
               3.   Other Relevant Factors
                                          

          Since the district court conducted a comprehensive Rule

11 hearing  during which  Marrero repeatedly stated  that he  was

satisfied with  Aguayo's representation,  understood the  charges

and  the consequences  of his  guilty  plea, freely  acknowledged

having agreed with Flette to  distribute ten kilograms of cocaine

as alleged  in the indictment  and that he  had not  been coerced

into  pleading guilty,  the Rule  11 record  fully  supported the

district  court's determination that the guilty plea was knowing,

intelligent and  voluntary.  See  Sanchez-Barreto, 93 F.3d  at 23
                                                           

("We  have  found  no abuse  of  discretion  in disallowing  plea

withdrawals where  Rule 11 safeguards were  scrupulously followed

by  the district  court."); Ramos,  810  F.2d at  314 ("That  the
                                           

district  court  thoroughly  complied with  Rule  11  also weighs

heavily against appellant.").  

          Furthermore, the change  of heart by Marrero  came more

than  fourteen  weeks after  the  Rule  11  hearing.   Given  the

principal  ground on  which the  Rule  32(e) motion  is based    

essentially  that Aguayo had  pressured him into  pleading guilty

and had not  explained to him  that he need  have known that  the

object of the alleged conspiracy  was to distribute cocaine    we

think the  extended delay  in seeking to  vacate the  guilty plea

                                24


likewise diminishes its plausibility.  "The rule of thumb is that

the longer a defendant waits  before moving to withdraw his plea,

the more potency his motion must have in order to  gain favorable

consideration."   Parrilla-Tirado,  22 F.3d  at 373.   See  also,
                                                                          

e.g., Isom, 85 F.3d at  839 (two months, too long); Cotal-Crispo,
                                                                          

47 F.3d at 8  (same); Ramos, 810 F.2d at 313  (thirteen days, too
                                     

long).   Although Marrero  asserts that it  is difficult  to find

legal representation  in Puerto  Rico in  August, and  points out

that the  Rule 32(e)  motion was filed  prior to  the presentence

report  and  sentencing,  contrast  United  States  v.  Gonzalez-
                                                                           

Vazquez, 34  F.3d 19, 22-23  (1st Cir. 1994) (defendant  moved to
                 

withdraw plea after presentence report suggested he would receive

a stiff sentence); Parrilla-Tirado, 22 F.3d at  373 (same), these
                                            

other  considerations  alone  do not  warrant  setting  aside the

district court's firsthand assessment that there  was no fair and

just reason  for allowing  Marrero to withdraw  his guilty  plea.

See Cotal-Crispo, 47 F.3d at 3.
                          

B.   Calculation of Drug Quantity 
          B.   Calculation of Drug Quantity 
                                           

          In another vein, Marrero challenges the finding that he

was  criminally responsible  for  ten kilograms  of cocaine.   He

contends that the  district court failed  to consider whether  he

had either the intent or the ability to distribute the negotiated

quantity  of cocaine     ten  kilograms.   See U.S.S.G.    2D1.1,
                                                        

comment. (n.12)  (1995) ("If, however, the  defendant establishes
                                                                           

that  he . . . did  not intend to provide,  or was not reasonably

capable of  providing the agreed-upon  quantity . . .,  the court

                                25


shall exclude from the offense  level determination the amount of

controlled substance that the defendant establishes that he . . .

did  not intend  to  provide  or was  not  reasonably capable  of

providing.") (emphasis added).   Marrero  further maintains  that

even assuming he knew the  box contained one kilogram of cocaine,

it was not  "reasonably foreseeable" that the one  kilogram was a

sample for a ten-kilogram sale,  and therefore he should not have

been found  culpable for the  total amount negotiated  by Flette.

See U.S.S.G.   1B1.3(a)(1)(B), comment. (n.2) (1995).
             

          There can have  been no clear error,  see United States
                                                                           

v. Miranda-Santiago,  96 F.3d  517, 524 (1st  Cir. 1996),  as the
                             

district court correctly found that Marrero had admitted, both in

the plea  agreement and during the  Rule 11 hearing, that  he was

responsible  for  ten  kilograms of  cocaine  as  charged  in the

indictment.  See supra note 2.   The district court was  entitled
                                

to credit these  sworn admissions.  See Parrilla-Tirado,  22 F.3d
                                                                 

at 373; Martinez-Molina, 64 F.3d at 733; Carter, 815 F.2d at 829;
                                                         

Butt, 731 F.2d at 80. 
              

          Finally,  the  claim  that Marrero  did  not  intend to

produce, or  was  not  capable  of producing,  ten  kilograms  of

cocaine, fails as well, since there was no attempt to demonstrate

that he and Flette were  not reasonably capable of delivering the

amount agreed  upon with the  undercover agents.  See  U.S.S.G.  
                                                               

2D1.1 comment. (n.12) (1995).   Accordingly, Marrero's admissions

afforded ample support for the district court finding that he was

criminally responsible for ten kilograms. 

                                26


                               III
                                         III

                            CONCLUSION
                                      CONCLUSION
                                                

          For the foregoing reasons,  the district court judgment

is affirmed, without prejudice to appellant's right  to renew the
                     

ineffective assistance claim in a collateral proceeding.

                                27