United States v. Muriel

United States Court of Appeals
For the First Circuit
For the First Circuit

No. 96-1588

UNITED STATES OF AMERICA,

Appellee,

v.

PEDRO MURIEL A/K/A PEDRO JUAN REYES-MURIEL,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Boudin, Circuit Judge,

Bownes, Senior Circuit Judge,

and Lynch, Circuit Judge.

Scott A. Lutes for appellant.

Margaret E. Curran, Assistant United States Attorney, with whom

Sheldon Whitehouse, United States Attorney, and Zechariah Chafee,

Assistant United States Attorney, were on brief for appellee.

May 5, 1997

BOWNES, Senior Circuit Judge. Defendant-appellant
BOWNES, Senior Circuit Judge.

Pedro Muriel appeals the district court's denial of his

motion to withdraw his plea of guilty. We affirm.

BACKGROUND
BACKGROUND

Muriel was arrested during the execution of a

warrant to search his girlfriend's apartment. When police

entered the apartment on September 14, 1995, they found

Muriel standing in a bedroom in his underwear and reaching

toward the bed, upon which police found a loaded Smith and

Wesson 10-millimeter handgun under a pillow. Muriel claims

that he was not reaching for the gun but for his pants.

Police had obtained the warrant to search the two-

bedroom apartment rented by Muriel's girlfriend, Ingrid

Ostos, on the basis of information provided by a reliable

informant previously used by the police. In the bedroom in

which they found Muriel and the gun, police also found $1,065

in cash in a nightstand, an ammunition box containing sixteen

live .45 caliber rounds, and some personal papers belonging

to Muriel and Ostos. In the other bedroom they found a

plastic bag holding twenty-three glassine packets containing

traces of heroin and a small electronic scale.

Muriel had previously been convicted for other

offenses. At the time he was arrested, he was facing a

pending violation of a probationary term and a suspended

sentence in Rhode Island Providence County Superior Court.

-2-
2

In the case at bar, Muriel was indicted on three counts:

Count I, violation of 21 U.S.C. 841(a) (possession of

heroin with intent to distribute), Count II, violation of 18

U.S.C. 924(c)(1) (using or carrying a firearm during and in

relation to a drug-trafficking crime), and Count III,

violation of 18 U.S.C. 922(g) by being a "felon-in-

possession" (i.e., possession of a firearm after having been

convicted of a felony). Muriel entered a plea of not guilty

to the charges at his arraignment, and the case was placed on

the trial calendar for December 1995. On November 30, 1995,

the parties signed a plea agreement pursuant to Federal Rule

of Criminal Procedure 11(e)(1)(B), in which Muriel agreed to

plead guilty to Count III (the felon-in-possession charge)

and the government agreed to drop the other two charges and

recommend to the court that Muriel be sentenced at the low

end of the applicable guideline range. The government also

orally agreed not to oppose a three-level reduction for

acceptance of responsibility.

Between the time the plea agreement was accepted

and Muriel's sentencing, the Supreme Court decided Bailey v.

United States, 116 S. Ct. 501 (1995), which altered the

prevailing interpretation of the term "use" in 18 U.S.C.

924(c)(1), one of the offenses with which Muriel had

originally been charged, but which was dropped by the

government pursuant to the plea agreement. 18 U.S.C.

-3-
3

924(c)(1) provides, in relevant part, that any person who,

"during and in relation to any crime of violence or drug

trafficking crime . . . uses or carries a firearm, shall . .

. be sentenced to imprisonment for five years . . . ." In

Bailey, the Supreme Court held that, in order to constitute

an offense under the "use" prong of 924(c)(1), there must

be evidence of "active employment" of a firearm in the

commission of the predicate offense; mere possession of a

firearm by a person committing an offense is not sufficient.

Id. at 505. At the sentencing hearing on February 23,

1996, Muriel moved to vacate his plea of guilty so that he

could move to suppress evidence seized during the search of

September 14, 1995. The district court denied the motion,

and Muriel was subsequently sentenced to thirty-three months

in prison, a three-year period of supervised release, and a

fine of $7,130.80. He then timely filed this appeal.

Muriel wants to withdraw his plea of guilty to the

felon-in-possession charge. He argues that he did not

receive the benefit of his bargain in pleading guilty to this

charge because the Supreme Court's decision in Bailey, handed

down after Muriel had pled guilty pursuant to the agreement,

would nullify the 18 U.S.C. 924(c)(1) charge, Count II of

the indictment, which was dropped by the government pursuant

to the plea agreement. Muriel argues further that since the

sentencing court was not convinced by a fair preponderance of

-4-
4

the evidence on Count I, Count III is the only viable charge

left against him. Appellant's Br. at 8.

Muriel does not request a trial; indeed, he does

not profess his innocence, but wishes to file a motion to

suppress evidence in order to challenge the affidavit upon

which the search warrant which led to the discovery of the

gun was based. Muriel thus contends that he should be

permitted to withdraw his guilty plea in order to avail

himself of another strategy in his defense.

ANALYSIS
ANALYSIS

Muriel makes two arguments on appeal. First, he

contends that the district court abused its discretion in

denying his motion to withdraw his plea because he has

asserted a fair and just reason for doing so. Second, Muriel

contends that the district court committed clear error in

sentencing him by denying him a downward adjustment for

acceptance of responsibility.

I.
I.

Muriel moved to vacate his guilty plea before he

was sentenced. Federal Rule of Criminal Procedure 32(e),

which governs plea withdrawals, states, in pertinent part:

"If a motion to withdraw a plea of guilty or nolo contendere

is made before sentence is imposed, the court may permit the

plea to be withdrawn if the defendant shows any fair and just

reason." A defendant has no absolute right to withdraw a

-5-
5

guilty plea. See United States v. Isom, 85 F.3d 831, 834

(1st Cir. 1996); United States v. Ribas-Dominicci, 50 F.3d

76, 78 (1st Cir. 1995). Moreover, a district court's

decision granting or denying a motion to withdraw a guilty

plea may be reversed only upon a demonstrable abuse of

discretion. See United States v. Sanchez-Barreto, 93 F.3d

17, 23 (1st Cir. 1996), cert. denied sub nom. Arroyo-Reyes v.

United States, 117 S. Ct. 711 (1997); United States v.

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

We have employed four criteria in determining

whether a defendant has asserted a "fair and just" reason for

withdrawing a guilty plea:

(1) the plausibility of the reasons
prompting the requested change of plea;
(2) the timing of the defendant's motion;
(3) the existence or nonexistence of an
assertion of innocence; and (4) whether,
when viewed in the light of emergent
circumstances, the defendant's plea
appropriately may be characterized as
involuntary, in derogation of the
requirements imposed by Fed. R. Crim. P.
11, or otherwise legally suspect.

Sanchez-Barreto, 93 F.3d at 23. The fourth consideration,

which hinges on whether the plea was knowing, voluntary, and

intelligent, is most significant. Ribas-Dominicci, 50 F.3d

at 78.

If, under this analysis, the defendant successfully

meets his burden of demonstrating a fair and just reason for

withdrawing his plea, the court must inquire whether the

-6-
6

government will suffer any demonstrable prejudice from the

withdrawal of the plea. Parrilla-Tirado, 22 F.3d at 371.

Because we find that Muriel does not meet his burden under

this analysis, however, we need not address the question of

prejudice. See id. at 373 n.5; United States v. Doyle, 981

F.2d 591, 596 n.6 (1st Cir. 1992).

(1) Plausibility
(1) Plausibility

Muriel must demonstrate a plausible reason for

withdrawing his guilty plea. See Parrilla-Tirado, 22 F.3d at

371. Plausibility cannot just rest on Muriel's second

thoughts "'about some fact or a point of law, or about the

wisdom of his earlier decision.'" Isom, 85 F.3d at 837

(quoting Parrilla-Tirado, 22 F.3d at 371). Our review of the

record supports the district court's assessment that Muriel's

change of heart, while "understandable," was prompted by

second thoughts about the wisdom of his decision to enter the

plea agreement rather than file a motion to suppress evidence

of the gun. Memorandum and Order of March 19, 1996 at 4.

Muriel advances the following as plausible reasons for

withdrawing his plea: (1) his motion to withdraw was not the

product of second thoughts but was prompted by the Bailey

decision; (2) an alleged defect in the warrant makes his plea

suspect; and (3) the plea bargain ceased to be to his

benefit. We find none of these to be plausible reasons.

-7-
7

By his own admission Muriel had second thoughts all

along about his strategic choice to plea bargain because he

had doubts about the sufficiency of the evidence upon which

the search warrant was based. But Muriel made a tactical

decision to forgo the warrant challenge because, at the time,

he thought it was in his best interests to secure dismissal

of the most serious charge, 18 U.S.C. 924(c)(1) (the

"Bailey charge"), which carries a five-year mandatory

sentence. Appellant's Memorandum in Support of Motion to

Vacate Plea of Guilty at 2. Nearly three months later, when

Muriel concluded that circumstances had changed such that a

potential motion to suppress seemed to be a better strategy

than his plea bargain, he decided that withdrawal of his plea

was in order. But, as we have already stated, second

thoughts do not constitute a plausible reason for withdrawal.

Muriel also argues that the information contained

in the affidavit in support of the search warrant was

insufficient to establish probable cause, and that this is a

plausible reason for withdrawing his plea. Specifically,

Muriel contends that the warrant "contained lies," and that

this renders his plea and conviction "legally suspect."

Appellant's Br. at 12. But, as the district court pointed

out, Muriel has not met his burden of showing that the

affidavit did not sustain a finding of probable cause for the

-8-
8

warrant. Memorandum and Order of March 19, 1996 at 5.

Muriel has neither demonstrated that, under the "totality of

the circumstances" test, the information contained in the

affidavit does not show that there was "a fair probability

that contraband or evidence of a crime" would be discovered

at a specific place, Illinois v. Gates, 462 U.S. 213, 238

(1983), nor presented evidence of "deliberate falsehood or of

reckless disregard for the truth" on the part of the affiant

detective, Franks v. Delaware, 438 U.S. 154, 171 (1978).

Aside from the affidavit itself and his bare

allegations that the affidavit contained lies by the

informant and misstatements by the investigating detective,

Muriel offers no proof that probable cause to issue the

warrant was lacking. On the facts before us, we cannot say

that the district court abused its discretion in rejecting

Muriel's argument that deficiencies in the warrant rendered

his plea legally suspect.1 We add that Muriel has no

argument that he was previously deprived of the chance to

file a motion to suppress because he was unaware of the

facts. To the contrary, Muriel's decision to plead guilty,

rather than file a motion to suppress, was a tactical

decision made months before he moved to withdraw his plea.

1. Although we review the denial of a motion to suppress
de novo, see United States v. Zayas-Diaz, 95 F.3d 105, 111

n.6 (1st Cir. 1996), we review the denial of a pre-sentence
motion to withdraw a guilty plea for abuse of discretion.

-9-
9

At the time Muriel pled guilty, he possessed all the relevant

information about the affidavit that he now claims is

defective. This is not a case where the defendant can point

to newly-discovered evidence. Cf. United States v. Ramos,

810 F.2d 308, 313 (1st Cir. 1987) (finding that the lower

court did not abuse its discretion in refusing to "give

weight to a self-serving, unsupported claim of innocence

raised judicially for the first time after the Rule 11

hearing," particularly where the defendants had not offered

insight into the substance of the exculpatory information).

We conclude that Muriel's unsupported claims regarding the

sufficiency of the search warrant do not provide a plausible

reason for withdrawal here.

Finally, Muriel argues that he did not receive the

benefit of his bargain because of Bailey's impact on his plea

agreement, because he received no downward adjustment for

acceptance of responsibility, and because he was sentenced at

the higher end of the applicable guideline range rather than

the lower end. We have frequently stated that plea

agreements are contractual in nature. See Parrilla-Tirado 22

F.3d at 371; United States v. Atwood, 963 F.2d 476, 479 (1st

Cir. 1992). We have further explained that a defendant

receives some "built-in" benefits when he or she pleads

guilty and that, barring material misrepresentation, default

on a promise, or breach of the agreement by the government,

-10-
10

no additional consideration is required to support a guilty

plea. Parrilla-Tirado, 22 F.3d at 371-72.

Muriel's memorandum in support of the motion to

withdraw his plea states that he ultimately decided to forgo

filing a motion to suppress evidence of the gun in exchange

for the chance to bargain away the most significant charge

against him, the Bailey charge, which carried a mandatory

minimum of five years. There was ample consideration for the

agreement--in exchange for Muriel's guilty plea to Count III,

the government agreed to drop Counts I and II and not to

oppose a reduction in his sentence for acceptance of

responsibility. Muriel cannot be permitted now to withdraw

his plea in the hopes of renegotiating a better deal just

because Counts I and II later looked like weak charges.

Although Muriel may believe that he did not receive

any "built-in" benefits of his bargain, his bargain was with

the government, which could only make the agreed-to

recommendations to the court and could not guarantee that

Muriel would receive a particular sentence. Sentencing is

within the discretion of the district court. Moreover, as

Rule 11(e)(1)(B) itself makes clear, a plea agreement of this

kind is made with the "understanding that such recommendation

or request shall not be binding upon the court." We agree

with the district court that Muriel should not be allowed to

vacate his guilty plea on this basis.

-11-
11

(2) Timing
(2) Timing

The length of time between the entry of the plea

and the filing of the motion to withdraw is a factor to be

considered. Ramos, 810 F.2d at 312. "Because the timing of

a defendant's attempted plea withdrawal is highly probative

of motive, close scrutiny of the chronology is important in

adjudicating whether retraction is fair and just." Doyle,

981 F.2d at 595.

Muriel moved to withdraw his plea on February 23,

1996, over two months after Bailey was decided, and almost

three months after his guilty plea was entered. This

circuit's case law counsels against withdrawal after such a

delay. See Isom, 85 F.3d at 839 (two-month delay too long);

Ramos, 810 F.2d at 313 (thirteen-day delay too long); United

States v. Keefe, 621 F.2d 17, 20 (1st Cir. 1980) (three-week

delay too long). What is more significant, however, is that

Muriel's motion to withdraw came one month after the release

of the Presentence Investigation Report ("PSI Report"), which

recommended a sentence of 30 to 37 months, and found Muriel

to be ineligible for probation. If timing is indeed

probative of motive, then it would seem that Muriel was

actually prompted to move to withdraw his plea by his

disappointment with the recommended sentence in the PSI

Report.

(3) Claim of Innocence
(3) Claim of Innocence

-12-
12

A defendant's assertion of innocence may cause a

court to look favorably upon a motion to withdraw.

Conversely, the lack of a claim of innocence weighs in favor

of sustaining a guilty plea. See Parrilla-Tirado, 22 F.3d at

373; Doyle, 981 F.2d at 596. Muriel does not claim to be

innocent of the felon-in-possession charge to which he pled

guilty. He admitted his guilt at the Rule 11 hearing and has

not asserted otherwise at sentencing or on appeal.

Obviously, Muriel's failure to assert a claim of innocence

weighs against his contention that his reason for withdrawing

his plea is fair and just.

(4) Voluntary and Knowing Plea
(4) Voluntary and Knowing Plea

"[B]y entering a guilty plea, a defendant

effectively waives several constitutional rights. For that

waiver to be valid, the plea must amount to a voluntary and

intentional relinquishment or abandonment of a known right or

privilege." United States v. Gray, 63 F.3d 57, 60 (1st Cir.

1995) (citing United States v. Cotal-Crespo, 47 F.3d 1, 4

(1st Cir.), cert. denied, 116 S. Ct. 94 (1995)).

Accordingly, while technical violations of Rule 11 "do not

count," violations of any of the three core concerns--absence

of coercion, understanding of the charges, and knowledge of

the consequences of the guilty plea--mandate that the plea be

set aside. Ribas-Dominicci, 50 F.3d at 78.

-13-
13

Muriel does not assert that his plea was not

voluntarily entered or that he did not understand the Rule 11

plea colloquy. Instead, he claims that, at the time he

agreed to the plea bargain, he could not have known that the

Bailey decision would nullify Count II of the indictment, and

that therefore he was operating under a false assumption

regarding the applicable law when he entered his plea. The

argument that the change in law rendered his plea unknowing

under the law at the time, and that he was prejudiced in

giving up the opportunity to challenge the admission of

evidence (the gun) fails for several reasons.

First, there are no allegations of coercion or

mistake, nor is there any evidence of such on the part of the

government. Second, the record shows that Muriel understood

the charges against him and that he was aware of the possible

risks involved in pleading guilty. The district court found

that at the change of plea hearing, "Muriel was apprised of

the precise nature of the charge set forth in Count III, the

elements the government was required to prove in order to

convict him, the sentence that could be imposed if his guilty

plea was accepted and the rights he was relinquishing by

pleading guilty." Memorandum and Order of March 19, 1996 at

7. In addition, Muriel's plea agreement stated that he

understood the constitutional rights he was relinquishing,

and that he understood that he had no right to withdraw his

-14-
14

plea in the event the court did not accept the government's

sentencing recommendations. Muriel acknowledged that he

signed the agreement and understood its contents, and he

concedes that he understood the Rule 11 colloquy.

This court has not allowed defendants, absent

coercion or mistake, to renege on plea agreements on the

basis that they have miscalculated their risks and benefits

or have belatedly discovered a new defense. United States v.

Allard, 926 F.2d 1237, 1243 (1st Cir. 1991).

In reaching a plea bargain, a defendant
assesses the likelihood of conviction and
balances that against the relative
severity of the sentence he expects to
receive pursuant to the agreement and
that which could be imposed upon
conviction. In many cases, that process
results in a compromise pursuant to which
the defendant makes a conscious decision
to relinquish a perceived defense. . . .
To hold otherwise would render plea
agreements and the pleas entered pursuant
to them meaningless.

Id. (collecting cases).

Similarly, the Supreme Court has stated in Brady v.

United States that, "absent misrepresentation or other

impermissible conduct by state agents, a voluntary plea of

guilty intelligently made in the light of the then applicable

law does not become vulnerable because later judicial

decisions indicate that the plea rested on a faulty premise."

397 U.S. 742, 757 (1970) (internal citation omitted)

(emphasis added). Muriel's post-hoc determination after

-15-
15

Bailey that he would be better off filing a motion to

suppress the gun and then bargaining anew with the government

does not constitute grounds for vacating his plea.

We do not believe that a district court abuses its

discretion by denying a motion to withdraw a guilty plea that

is premised on the basis that a decision by the Supreme Court

interpreting a criminal statute might affect a count which

was dropped by agreement of the parties in the plea bargain.

Other circuits have also faced post-Bailey plea-agreement

appeals, but in contrast to the case at bar, the guilty pleas

that have been vacated or remanded involve guilty pleas to

the Bailey-affected charge.2 In other words, Muriel's

assertion here that he pled guilty under a false assumption

2. In ruling on the validity of a guilty plea to a Bailey-

affected charge, the Fifth Circuit has explained that, "where
intervening law has established that a defendant's actions do
not constitute a crime and thus that the defendant is
actually innocent of the charged offense," a defendant is
permitted to attack a guilty plea. United States v. Andrade,

83 F.3d 729, 731 (5th Cir. 1996). In Andrade, the defendant

pled guilty to a 924(c)(1) charge in addition to three
other charges. Determining that there was no factual basis
for the 924(c)(1) offense, the court vacated the
defendant's conviction and sentence on that charge and
remanded to the district court. See also United States v.

Abdul, 75 F.3d 327 (7th Cir.), cert. denied, 116 S. Ct. 2569

(1996).
But the case at bar differs fundamentally from such
cases. Here, the Bailey decision did not change the

interpretation of a statute to which the defendant had pled
guilty; rather, it affected a charge dropped by the
government before Bailey was decided. We are not faced with

a defendant who may have been sentenced for conduct which did
not constitute a federal offense, as in Andrade. Moreover,

Muriel does not deny that he is guilty of the offense
charged.

-16-
16

about the law does not provide a fair and just reason because

the change in law does not affect the charge to which he pled

guilty, but a separate count of the indictment which was

dropped. A case on point is United States v. Knight, 96 F.3d

307 (8th Cir. 1996), cert. denied, No. 96-8236, 1997 WL

134752 (Apr. 14, 1997), in which the defendant pled guilty to

a drug-conspiracy charge in return for the government's

agreement to drop a 924(c)(1) charge, along with other drug

offenses. The defendant did not assert that his plea was

unknowing, but argued that "a change in the law applicable to

the gun charge materially altered the plea agreement's

basis." Id. at 309. On appeal, the Eighth Circuit decided

that the possibility that the defendant's conduct would not

qualify as an offense under 924(c)(1) in light of Bailey

did not undermine his bargain with the government where the

defendant had been indicted on several other charges which

were dropped pursuant to the plea agreement. Id.

We therefore need not review the factual basis for

the dropped Bailey charge against Muriel to determine whether

the district court was correct in concluding that it was "far

from certain" that Bailey would nullify Count II. Memorandum

and Order of March 19, 1996 at 6. It is sufficient to note

that Muriel's contention that Count II would be nullified

because of Bailey is not a sure bet. The district court

found that "evidence that Muriel had a firearm within

-17-
17

reaching distance and made a movement toward it when police

entered could be sufficient to establish that he actively

'used' the firearm." Id. at 6.

We conclude that the district court did not abuse

its discretion in refusing to allow Muriel to withdraw his

guilty plea.

II.
II.

Muriel also contends that the district court

committed clear error by not awarding him a downward

adjustment of two or three levels for acceptance of

responsibility under Section 3E1.1 of the Federal Sentencing

Guidelines.3

3. The United States Sentencing Guidelines Section 3E1.1
states:

Acceptance of Responsibility

(a) If the defendant clearly
demonstrates acceptance of responsibility
for his offense, decrease the offense
level by 2 levels.
2

(b) If the defendant qualifies for a
decrease under subsection (a), the
offense level determined prior to the
operation of subsection (a) is level 16
16
or greater, and the defendant has
assisted authorities in the investigation
or prosecution of his own misconduct by
taking one or more of the following
steps:

(1) timely providing complete
information to the government
concerning his own involvement
in the offense; or

-18-
18

A defendant who pleads guilty is not entitled to a

downward adjustment for acceptance of responsibility as a

matter of right. U.S.S.G. 3E1.1, application note 3;

United States v. Royer, 895 F.2d 28, 29-30 (1st Cir. 1990).

The defendant has the burden of proving entitlement to a

decrease in the offense level, including a downward

adjustment for acceptance of responsibility. United States

v. Morillo, 8 F.3d 864, 871 (1st Cir. 1993). Whether a

defendant has accepted responsibility for the offense is a

fact-dominated issue, and therefore we review the district

judge's ruling for clear error. Royer, 895 F.2d at 29. We

give the findings of the district court "a wide and

deferential berth" because the court has the benefit of

assessing the credibility of the defendant first-hand.

U.S.S.G. 3E1.1 application note 5; Royer, 895 F.2d at 30.

While the facts are a close call, we accept the determination

made by the district judge because it is not clearly

erroneous.

(2) timely notifying author-
ities of his intention to enter
a plea of guilty, thereby
permitting the government to
avoid preparing for trial and
permitting the court to
allocate its resources
efficiently,

decrease the offense level by 1
1
additional level.

-19-
19

Muriel did take some steps towards accepting

responsibility for his offense--he wrote a letter to accept

responsibility and he testified in court as to the purchase

of the gun. (PSI Report at 4; Sent. Hr'g Pt. IV at 94.) The

prosecution and the probation officer both recommended to the

district court that Muriel receive a three-level reduction in

his offense level for acceptance of responsibility. The

district court did not follow the recommendation because it

found that Muriel had lied.

It is within the discretion of the district court

to deny a reduction on the basis of its determination that a

defendant has resorted to half-truths or evasions from the

truth in an effort to minimize his or her culpability.

United States v. Ocasio-Rivera, 991 F.2d 1, 5 (1st Cir.

1993). The district judge did not believe Muriel's repeated

assertion that the gun no longer belonged to him on the night

the police executed the warrant, but belonged to his

girlfriend. In spite of the fact that Ms. Ostos was

unfamiliar with the gun, Muriel continued to insist that he

had given it to her, and that she kept the loaded gun under

the pillow upon which he had been sleeping. The district

court found that, while Muriel may have made the gun

available to Ostos while he was in the apartment, Muriel

continued to possess the gun up until his arrest. (Sent.

Hr'g Pt. IV at 162.) The district court's credibility

-20-
20

determination that Muriel was lying was not clearly

erroneous.

III.
III.

The judgment of the district court is affirmed.
affirmed

-21-
21