UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-2042
UNITED STATES OF AMERICA,
Appellee,
v.
JORGE GONZALEZ-VAZQUEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
Before
Selya, Boudin and Stahl, Circuit Judges.
Jose A. Fuentes Agostini, with whom Dominguez & Totti was on
brief, for appellant.
Jose A. Quiles-Espinosa, Senior Litigation Counsel, with
whom Guillermo Gil, United States Attorney, Edwin O. Vazquez,
Assistant United States Attorney, and Rosa Emilia Rodriguez-
Velez, Assistant United States Attorney, were on brief, for
appellee.
September 8, 1994
SELYA, Circuit Judge. This criminal appeal requires
SELYA, Circuit Judge.
that we ascertain whether the district court erred either in
denying appellant's motion to retract his guilty plea or in
adding a two-level weapons enhancement when calculating the
guideline sentencing range (GSR). Detecting no error, we affirm.
I.
The Background
On March 26, 1993, defendant-appellant Jorge Gonzalez-
Vazquez (Gonzalez) pleaded guilty to conspiracy to import heroin,
and conspiracy to possess heroin with the intent to distribute
it. See 21 U.S.C. 963, 846, 952(a), and 841(a)(1). The
charges grew out of a sophisticated scheme or series of schemes,
lasting more than 15 months, in which appellant and 23
codefendants imported large quantities of heroin from Hong Kong
into the United States, and then distributed it. Appellant
played numerous roles in this elaborate plot, sometimes buying
heroin overseas, sometimes purveying drugs domestically,
sometimes acting as a courier, and sometimes serving as a
bodyguard.
In return for appellant's guilty plea, the government
agreed to recommend a sentence at the low end of the GSR but
the agreement contained no stipulation as to the parameters of
the GSR. The government also agreed to drop several other
charges levelled against appellant. One charge remained
unresolved: a count accusing appellant of using or possessing a
firearm during and in relation to a drug-trafficking offense, in
2
violation of 18 U.S.C. 924(c)(1).1 As to that count, the plea
agreement preserved appellant's right to trial.
Approximately four months after tendering his guilty
plea, appellant moved to withdraw it. The district court denied
his motion. At the disposition hearing, the court invoked
U.S.S.G. 2D1.1(b)(1) and boosted the base offense level (BOL)
for appellant's possession of a dangerous weapon.2 After other
adjustments had been made and appellant's criminal history score
had been computed, a GSR of 262-327 months emerged. The
prosecution recommended an incarcerative sentence at the nadir of
the range, and the district court obliged. Apparently content
not to exact a last pound of flesh, the government then moved to
dismiss the unresolved firearms count. The court granted the
government's motion. This appeal followed.
1The statute provides in pertinent part:
Whoever, during and in relation to any crime of
violence or drug trafficking crime (including a crime
of violence or drug trafficking crime which provides
for an enhanced punishment if committed by the use of a
deadly or dangerous weapon or device) for which he may
be prosecuted in a court of the United States, uses or
carries a firearm, shall, in addition to the punishment
provided for such crime of violence, or drug
trafficking crime, be sentenced to imprisonment for
five years. . . .
18 U.S.C. 924(c)(1)(1988).
2The applicable guideline, U.S.S.G. 2D1.1(b)(1)(Nov. 1992),
directs the sentencing court, if it finds that during the course
of the crime the defendant possessed "a dangerous weapon
(including a firearm)," to add two levels.
3
II.
The Motion to Withdraw
Appellant challenges the district court's denial of his
plea-withdrawal motion, asserting that he advanced a "fair and
just reason" for retracting his guilty plea, and that the
district court should have given him safe passage. His asserted
reason masquerades as a claim that, when he tendered his plea, he
did not fully understand its consequences. Stripped of
rhetorical flourishes, however, appellant's core complaint
appears to be that he did not realize that his GSR would be so
formidable.
Even prior to the imposition of sentence, a defendant
does not have an unqualified right to withdraw a guilty plea.
See United States v. Parrilla-Tirado, 22 F.3d 368, 371 (1st Cir.
1994); United States v. Buckley, 847 F.2d 991, 998 (1st Cir.
1988), cert. denied, 488 U.S. 1015 (1989). Rather, a presentence
motion to retract a plea can be granted "only upon an affirmative
showing of a 'fair and just reason.'" Parrilla-Tirado, 22 F.3d
at 371 (quoting Fed.R.Crim.P. 32(d)).3 The burden of proof
rests with the defendant. See United States v. De Alba Pagan,
F.3d , (1st Cir. 1994) [No. 93-2018, slip op. at 2-3];
Parrilla-Tirado, 22 F.3d at 371. In deference to the intimate
tri-cornered relationship among trial judge, prosecutor, and
3Fed.R.Crim.P. 32(d) states in pertinent part: "If a motion
for withdrawal of a plea of guilty . . . is made before sentence
is imposed, the court may permit withdrawal of the plea upon a
showing by the defendant of any fair and just reason."
4
criminal defendant, we review a district court's denial of a
request to withdraw a guilty plea solely for abuse of discretion.
See United States v. Doyle, 981 F.2d 591, 594 (1st Cir. 1992);
United States v. Pellerito, 878 F.2d 1535, 1538 (1st Cir. 1989).
Federal courts use a multi-factor test as an aid in
ascertaining whether a proffered reason for withdrawal meets the
criteria of Rule 32(d). This test is familiar, see, e.g., De
Alba Pagan, F.3d at [slip op. at 2-3]; Parrilla-Tirado,
22 F.3d at 371; Doyle, 981 F.2d at 594; Pellerito, 878 F.2d at
1537, and does not bear reiteration. Instead, we proceed
directly to a factor-by-factor examination of appellant's plaint.
1. Plausibility. Appellant claims that his decision
1. Plausibility.
to plead guilty was based upon the government's agreement to
recommend a sentence at the low end of the GSR a recommendation
that, to appellant's way of thinking, meant 210 months. But that
assumption stemmed from a miscalculation on appellant's part a
miscalculation fueled by his hope that there would be no weapons
enhancement. It is a fact of law and life, too basic to warrant
citation of authority, that a criminal defendant cannot jettison
a guilty plea knowingly, intelligently, and voluntarily made
merely because the sentencing judge calls a tune that is not to
the defendant's taste. It is a corollary of this principle that,
as we recently stated in a case comparable to this one, "the fact
that a defendant misapprehends the likely guideline sentencing
range does not constitute a fair and just reason for withdrawing
a guilty plea." De Alba Pagan, F.3d at [slip op at 4];
5
accord United States v. Williams, 919 F.2d 1451, 1456-57 (10th
Cir. 1990), cert. denied, 499 U.S. 968 (1991); United States v.
Garcia, 909 F.2d 1346, 1348 (9th Cir. 1990); United States v.
Bradley, 905 F.2d 359, 360 (11th Cir. 1990); United States v.
Stephens, 906 F.2d 251, 253 (6th Cir. 1990); United States v.
Jones, 905 F.2d 867, 868-69 (5th Cir. 1990); United States v.
Sweeney, 878 F.2d 68, 69-71 (2d Cir. 1989).
This is a particularly weak case for a defendant to
suggest that we should bend the rule. The transcript of the
change-of-plea hearing makes it pellucid that Gonzalez knew at
the time that, regardless of the eventual outcome of the then-
unresolved weapons charge, he still faced the prospect of an
enhanced BOL at sentencing. During the hearing, his counsel
stated in open court and in appellant's presence:
I have also informed Mr. Gonzalez that it is
the position of the U.S. attorney that, in
the event that he would be acquitted of the
gun charge, that is count 23, that they could
ask or it could be possible that he would be
found with a two point enhancement at the
moment of the sentencing hearing.
Counsel added that he explained to Gonzalez that this tactic
"could possibly increase his offense level. . . ." Hence, the
ambush of which appellant now complains was no ambush at all,
but, rather, a frontal assault, with the government's troops
marshalled in plain view from the very onset of hostilities.
Appellant's articulated reason for seeking to scuttle his guilty
plea is, therefore, not plausible.
2. Timing. The timing of a motion to withdraw a
2. Timing.
6
guilty plea often serves as a gauge for measuring the legitimacy
of a proffered reason. Belated requests, even if made before
sentencing, are generally regarded as afterthoughts.
Consequently, 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; accord Doyle, 981 F.2d at 595; Pellerito, 878 F.2d at 1541.
Here, appellant waited approximately four months after
pleading guilty and two months after the release of his
presentence investigation report (PSI Report) before moving to
retract his plea.4 Given the totality of the circumstances that
pertain here, appellant's lassitude serves to cast considerable
doubt upon the legitimacy of his professed reason for seeking to
change course.
3. Assertion of Innocence. "In determining whether a
3. Assertion of Innocence.
proposed plea withdrawal is fair and just, a defendant's
assertion of innocence may weight the scales in favor of
withdrawal, and conversely, the absence of a claim of innocence
weights the opposite pan of the scale." Parrilla-Tirado, 22 F.3d
at 373; accord United States v. Kobrosky, 711 F.2d 449, 455 (1st
Cir. 1983). Appellant did not proclaim his innocence in his
plea-withdrawal motion. To the contrary, at the disposition
4The chronology is as follows. Appellant pled guilty on
March 26, 1993. New counsel entered the case ten days
thereafter. The probation department issued the PSI Report on
June 1, 1993. On August 9, 1993, appellant filed his motion to
withdraw his guilty plea. The district court sentenced appellant
on August 19, 1993.
7
hearing he stated; "I know I committed a crime and I have to pay
for it." Appellant's explicit admission of his guilt militates
strongly against disturbing the ruling below.
4. Voluntariness. In reviewing the merits of a plea-
4. Voluntariness.
withdrawal motion, an inquiring court must determine whether, in
light of the defendant's proffered reason and any other newly
disclosed facts, the guilty plea can still be deemed voluntary
and intelligent. See United States v. Austin, 948 F.2d 783, 786-
87 (1st Cir. 1991). Appellant makes no challenge to the
sufficiency of the Rule 11 proceeding in this case, and, indeed,
the colloquy is a model of thoroughness.
We need go no further. It is apparent that no hint of
error tainted the district court's refusal to allow appellant to
retract his guilty plea. Consequently, Gonzalez's conviction
must stand.
III.
The Sentence
Appellant also challenges the district court's reliance
on U.S.S.G. 2D1.1(b)(1) in the course of formulating his
sentence. He maintains that his alleged possession of the
firearm, and, hence, the applicability of the guideline, was not
proven by a fair preponderance of the evidence; and that, in any
event, the guideline's applicability had to be demonstrated
beyond a reasonable doubt inasmuch as the increase imposed under
the guideline is in reality an additional sentence, not a
sentencing enhancement. We do not accept either contention.
8
1. Sufficiency of the Proof. Appellant's initial
1. Sufficiency of the Proof.
sentencing sortie is effortlessly repulsed. In gauging the
sufficiency of the factual foundation on which a sentence rests,
we must "accept the findings of fact of the district court unless
they are clearly erroneous," while at the same time "giv[ing] due
deference to the district court's application of the guidelines
to the facts." 18 U.S.C. 3742(e); see United States v. Ruiz,
905 F.2d 499, 507 (1st Cir. 1990); United States v. Mocciola, 891
F.2d 13, 16 (1st Cir. 1989).
In the case at hand, the district court's factfinding
survives clear-error review. This conclusion is reached more
easily because of the Sentencing Commission's specific
instruction that section 2D1.1(b)(1) "should be applied if the
weapon was present, unless it is clearly improbable that the
weapon was connected with the offense." U.S.S.G. 2D1.1(b)(1),
comment. A sentencing court must, of course, honor this type of
instruction. See, e.g., United States v. Fiore, 983 F.2d 1, 2
(1st Cir. 1992) (explaining that the Sentencing Commission's
interpretation of a guideline should be followed unless it is
"arbitrary, unreasonable, inconsistent with the guideline's text,
or contrary to law"), cert. denied, 113 S. Ct. 1830 (1993).
Here, the record supports a finding that appellant
served as a bodyguard while one of his coconspirators negotiated
the terms of a proposed narcotics transaction with a confidential
informant. It likewise supports a finding that appellant carried
9
a pistol during the encounter.5 Under these circumstances, we
must uphold the district court's conclusion that, on the date of
appellant's arrest, he possessed a firearm in the course of an
aborted drug transaction.
Appellant tries to stave off the near-irresistible
force of these findings in two ways. First, he suggests that, to
warrant an adjustment under U.S.S.G. 2D1.1(b)(1), the evidence
must establish the same panoply of elements that are needed to
prove the statutory "carrying and use" of a weapon in furtherance
of a drug crime, see 18 U.S.C. 924(c)(1).6 The suggestion is
fanciful, for the guideline can be triggered with considerably
greater ease.
The point is readily susceptible to illustration. For
one thing, while mere possession of a firearm during a drug-
trafficking episode does not satisfy the elements of the statute,
see United States v. Castro-Lara, 970 F.2d 976, 983 (1st Cir.
1992), cert. denied, 113 S. Ct. 2935 (1993), the reverse is often
true under the guideline, see, e.g., Ruiz, 905 F.2d at 507 ("Mere
5The government suggests, with some foundation in the
record, that when the drug deal began to sour, appellant
attempted to use the pistol against a federal agent. Because we
do not need to reach the question of whether the proof here is
sufficient to support a conviction under 18 U.S.C. 924(c)(1),
we abjure comment on the reliability of the evidence underpinning
this more menacing scenario.
6The reader will recall that the grand jury originally
charged appellant under that statute; that the charge was not
compromised as part of the plea agreement; that the parties
anticipated that the section 924(c)(1) count would be tried
subsequently; and that, eventually, the government dropped the
charge.
10
possession of a firearm can trigger the two level increase; there
is no requirement that the gun actually be used in perpetrating
the drug crime, or that such use be intended,"); United States v.
Green, 889 F.2d 187, 189 (8th Cir. 1989) (similar); United States
v. Paulino, 887 F.2d 358, 360 (1st Cir. 1989) (similar). For
another thing, the "clearly improbable" language quoted above
makes a huge difference. Under the statute, the government's
burden of persuasion never varies. Under the guideline, however,
once the underlying crime and the presence of a firearm have been
established, the burden then shifts to the defendant to show, or
at least produce some evidence of, "the existence of special
circumstances that would render it 'clearly improbable' that the
weapon's presence has a connection to the narcotics trafficking."
United States v. Corcimiglia, 967 F.2d 724, 728 (1st Cir. 1992)
(quoting Commentary). This distinction is of paramount
importance here, as the record justifies a finding of possession,
and appellant has neither produced nor pointed to the existence
of any evidence indicating the improbability of a facilitative
nexus between the gun and the crime.
Appellant's next effort at annihilating the two-level
increase amounts to an attack on the reliability of the
government's proof. The fusillade misses the target. To be
sure, the court's findings are based primarily on the PSI Report,
which, in turn, relies heavily on grand jury testimony,
coconspirators' statements, and other hearsay. But appellant's
castigation of this evidence overlooks the special nature of
11
sentencing proceedings. In the sentencing phase of a case, the
Federal Rules of Evidence do not apply. Thus, "[f]acts
contained in a presentence report ordinarily are considered
reliable evidence for sentencing purposes." United States v.
Morillo, 8 F.3d 864, 872 (1st Cir. 1993) (citing cases). By like
token, grand jury testimony may be consulted for sentencing
purposes. See United States v. Zuleta-Alvarez, 922 F.2d 33, 36
(1st Cir. 1990) ("The sentencing court is free to rely upon
outside evidence, including hearsay evidence that has never been
subject to cross-examination."), cert. denied, 500 U.S. 927
(1991). Particularly where, as here, the defense has adduced no
countervailing evidence, the district court is entitled to rely
upon the PSI Report, grand jury testimony, and the like. See
Morillo, 8 F.3d at 872; United States v. Garcia, 954 F.2d 12, 19
(1st Cir. 1992); United States v. Iguaran-Palmar, 926 F.2d 7, 10
(1st Cir. 1991); Ruiz, 905 F.2d at 508.
2. Use of the Preponderance Standard. Appellant's
2. Use of the Preponderance Standard.
fallback position is that, even if the proof suffices on a
preponderance standard, using that standard transgresses his due
process rights. He hinges this claim on the thesis that the
increase in his sentence attributable to the section 2D1.1(b)(1)
adjustment (agreed by the parties to have been 52 months) is
roughly equivalent to the length of the mandatory minimum
sentence for violating 18 U.S.C. 924(c)(1) (60 months), and,
therefore, demands proof beyond a reasonable doubt. Though we
give appellant's counsel high marks for ingenuity, his thesis
12
does not earn a passing grade.
In the first place, appellant failed to unfurl the
thesis in the lower court. Accordingly, it is procedurally
defaulted and merits rejection on that bias alone. See United
States v. Dietz, 950 F.2d 50, 55 (1st Cir. 1991) ("We have
repeatedly ruled, in connection with sentencing as in other
contexts, that arguments not seasonably addressed to the trial
court may not be raised for the first time in an appellate
venue.") (collecting cases).
In the second place, the thesis lacks substance. It is
well settled that a sentencing proceeding differs from a trial;
by definition, the defendant's guilt has been established the
presumption of innocence has dissipated, and, consequently, the
prosecution need not prove the facts upon which it relies for
sentencing purposes beyond a reasonable doubt. See McMillan v.
Pennsylvania, 477 U.S. 79, 91 (1986); United States v. Tardiff,
969 F.2d 1283, 1289 (1st Cir. 1992); United States v. Wright, 873
F.2d 437, 441 (1st Cir. 1989). This rule does not offend due
process. See McMillan, 477 U.S. at 91; see also United States v.
Vinson, 886 F.2d 740, 742 (4th Cir. 1989) (holding that in
sentencing proceedings due process does not necessitate a level
of proof greater than a preponderance of the evidence), cert.
denied, 493 U.S. 1062 (1990). Inspected in this light,
appellant's constitutional challenge fails.
Nor does it make a significant difference that the
government originally pressed charges under 18 U.S.C.
13
924(c)(1), quoted supra note 1. After all, the fact that a
defendant is not charged, or could not be convicted, under
section 924(c) is not determinative of whether a weapons
enhancement may be appropriate under the sentencing guidelines.
See United States v. Jackson, 3 F.3d 506, 509 (1st Cir. 1993);
see also Mocciola, 891 F.2d at 17 (holding that even the facts
underlying a prior acquittal on a weapons charge may be
considered by the sentencing court for enhancement purposes).7
We see no reason why the same rule should not apply where, as
here, the prosecution simply dismisses the weapons count. And we
think it is immaterial that, in the plea agreement, appellant
reserved the right to trial on the statutory weapons charge.
Appellant makes a last-ditch effort to salvage his due
process claim. He revives the infamous "Catch-22" argument that
this court rejected in Mocciola, but with a twist. In Mocciola,
the defendant, who was charged with both drug trafficking and
violating section 924(c), argued that the weapons enhancement
permitted by the guidelines created a "Catch-22" because, in
respect to the firearms charge, whether he pled guilty or earned
an acquittal after trial did not really matter. See Mocciola,
7Mocciola is a mainstream holding, not, as appellant
portrays it, a waif in the wilderness. See, e.g. United States
v. Juarez-Ortega, 866 F.2d 747, 749 (5th Cir. 1989) (per curiam)
("Although the jury may have determined that the government had
not proved all of the elements of the weapons offense beyond a
reasonable doubt, such a determination does not necessarily
preclude consideration of underlying facts of the offense at
sentencing so long as those facts meet the reliability
standard."); United States v. Romano, 825 F.2d 725, 729 (2d Cir.
1987) (similar); United States v. Bernard, 757 F.2d 1439, 1444
(4th Cir. 1985) (similar).
14
891, F.2d at 17. We dismissed this argument, reasoning that it
"misperceives the distinction between a sentence and a sentence
enhancement." Id. at 17. In so holding, we commented that the
guideline adjustment added only 15 months to Mocciola's sentence
while a conviction under the statute would have yielded a
mandatory 60-month consecutive sentence.
Appellant pounces on this comment. He contrasts it
with his situation, observing that the additional time tacked
onto his sentence as a result of the guideline enhancement (52
months) is nearly equal to the prescribed statutory punishment
(60 months). We do not believe that this circumstance makes a
legally relevant difference.
A sentence is a sentence. Conversely, an enhancement
is an enhancement here, two levels, regardless of the BOL and
the incremental effect of the enhancement on any particular
sentence is the product of the interaction of a myriad of
factors. The increase in the ensuing sentence, whatever the
duration, neither alters the enhancement's fundamental character
nor bears on whether the facts underlying it must be established
by a different quantum of proof. Cf. United States v. Rehal, 940
F.2d 1, 6 (1st Cir. 1991) (holding that enhancing a sentence
because of a defendant's perjurious testimony does not require
proof by the same standard as a perjury charge, but need only be
proved by a preponderance of the evidence). In short,
appellant's complaint about the length of the increment in his
case might appropriately be addressed to Congress or the
15
Sentencing Commission; it cannot rewardingly be addressed to the
courts.
Affirmed.
16