United States v. Sanchez Barreto

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-1297
UNITED STATES OF AMERICA,

Appellee,

v.

JUAN MANUEL SANCHEZ-BARRETO,

Defendant, Appellant.

No. 95-1299
UNITED STATES OF AMERICA,

Appellee,

v.

JACKSON QUINTERO-FIGUEROA,

Defendant, Appellant.

No. 95-1300
UNITED STATES OF AMERICA,

Appellee,

v.

JORGE L. PEREZ-GARCIA,
a/k/a PITO CABALLO,

Defendant, Appellant.

No. 95-1303
UNITED STATES OF AMERICA,

Appellee,

v.

LUIS GARCIA-CRUZ,

Defendant, Appellant.

No. 95-1306
UNITED STATES OF AMERICA,

Appellee,

v.

ELIGIO LOPEZ-AYALA,

Defendant, Appellant.

No. 95-1404
UNITED STATES OF AMERICA,

Appellee,

v.

JUAN CARLOS ARROYO-REYES,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jos Antonio Fust , U.S. District Judge]

Before

Selya and Cyr, Circuit Judges,

and Gertner,* District Judge.

*Of the District of Massachusetts, sitting by designation.

2

Jos A. Pagan Nieves, with whom Jos A. Pagan Nieves Law Offices

was on brief for appellant Sanchez Barreto.
Carmen R. De J sus for appellant Quintero Figueroa.

Rafael F. Castro Lang for appellant Perez Garcia.

Lydia Lizarribar-Masini on brief for appellant Garcia Cruz.

Eduardo Caballero Reyes for appellant Lopez Ayala.

Victor P. Miranda Corrada for appellant Arroyo Reyes.

Miguel A. Pereira, Assistant United States Attorney, with whom

Guillermo Gil, United States Attorney, and Jos A. Quiles-Espinosa,

Senior Litigation Counsel, were on brief for appellee.

August 21, 1996

3

CYR, Circuit Judge. Appellants Juan Carlos Arroyo-
CYR, Circuit Judge

Reyes ("Arroyo"), Luis Garcia-Cruz ("Garcia"), Eligio Lopez-Ayala

("Lopez"), Jorge Perez-Garcia ("Perez"), Jackson Quintero-

Figueroa ("Quintero"), and Juan Sanchez-Barreto ("Sanchez")

contend, among other things, that the district court erred in

denying their requests to withdraw their guilty pleas. See Fed.

R. Crim. P. 32(e). We remand the Sixth Amendment claim presented

by Perez and affirm the district court judgments against the

remaining appellants.

I
I

BACKGROUND
BACKGROUND

On March 9, 1994, a federal grand jury in Puerto Rico

returned a five-count indictment charging appellants with, inter

alia, conspiracy to distribute not less than fifty grams of

cocaine base, five kilograms of cocaine, and one kilogram of

heroin, in violation of 21 U.S.C. 841(a)(1), 846 (1994), and

with using or carrying firearms in connection with a drug

offense, in violation of 18 U.S.C. 924(c)(1) (1994). A

superseding indictment alleged that appellants belonged to a

twenty-six member gang that operated a "drug point" in Toa Baja,

Puerto Rico, and used firearms to defend against rival gangs and

discourage honest citizens from informing the police.

Appellants initially pled not guilty to the charges.

Just before trial, however, with the advice of counsel,

appellants entered guilty pleas to the drug conspiracy and

firearms counts and the government agreed to dismiss the

4

remaining counts. After the district court accepted their guilty

pleas, and before sentencing, see Appendix A, appellants sought

to withdraw their pleas. See Fed. R. Crim. P. 32(e) ("If a

motion to withdraw a plea of guilty . . . is made before sentence

is imposed, the court may permit the plea to be withdrawn if the

defendant shows any fair and just reason."). The district court

denied their motions and imposed sentences consistent with their

respective plea agreements.

II
II

DISCUSSION
DISCUSSION

A. The Perez Appeal
A. The Perez Appeal

Perez claims that he was denied effective assistance of

counsel at the hearing on his pro se motion to withdraw his

guilty plea. See U.S. Const. amend. VI. The government responds

that Perez (1) did not ask the court to appoint new counsel, and

(2) has not shown that appointed counsel, Jos R. Aguayo,

Esquire, labored under an actual conflict of interest within the

meaning of United States v. Soldevila-Lopez, 17 F.3d 480 (1st

Cir. 1994).

1. Waiver
1. Waiver

The Sixth Amendment right to effective assistance of

counsel inheres at all "critical stages" of a criminal proceeding

unless competently waived. United States v. Mateo, 950 F.2d 44,

47 (1st Cir. 1991). A plea withdrawal hearing is a "critical

stage" in the criminal proceeding. United States v. Crowley, 529

F.2d 1066, 1069 (3d Cir.), cert. denied, 425 U.S. 995 (1976).

5

The right to counsel is not contingent upon a request by the

defendant; rather, "we presume that the defendant requests the

lawyer's services at every critical stage of the prosecution."

Michigan v. Jackson, 475 U.S. 625, 633 & n.6 (1986). In all

events, Perez requested counsel at the outset, and the district

court appointed Jos R. Aguayo, Esquire.

Thus, contrary to the government's suggestion, nothing

in the record remotely indicates that Perez knowingly and

voluntarily waived his Sixth Amendment right to counsel at the

plea withdrawal hearing. Compare United States v. Saccoccia, 58

F.3d 754, 771-72 (1st Cir. 1995) (defendant repeatedly waived

representation by conflict-free counsel), cert. denied, 116 S.

Ct. 1322 (1996); see also United States v. Betancourt-Arretuche,

933 F.2d 89, 92 (1st Cir.) (discussing waiver elements), cert.

denied, 502 U.S. 959 (1991). Finding no waiver, we next consider

whether Perez has demonstrated that court-appointed counsel

failed to afford effective assistance at the plea withdrawal

hearing.

2. Conflict of Interest
2. Conflict of Interest

The government contends that Perez must demonstrate "an

actual conflict of interest adversely affect[ing] his lawyer's

performance." Soldevila-Lopez, 17 F.3d at 486 (quoting Cuyler v.

Sullivan, 446 U.S. 335, 348 (1980)). Thus, the government says

Perez was required to show that court-appointed counsel could

have pursued a plausible alternative tactic or strategy were it

not for an inherent conflict of interest or other loyalties that

6

caused him not to do so. Id.; Guaraldi v. Cunningham, 819 F.2d

15, 17 (1st Cir. 1987).

7

We noted in Soldevila-Lopez that "[c]ourts have recog-

nized actual conflicts of interest between an attorney and his

client when pursuit of a client's interests would lead to

evidence of an attorney's malpractice." Soldevila-Lopez, 17 F.3d

at 486 (citing United States v. Ellison, 798 F.2d 1102, 1106-08

(7th Cir. 1986), cert. denied, 479 U.S. 1038 (1987), and Mathis

v. Hood, 937 F.2d 790, 795 (2d Cir. 1991)). The absence of any

malpractice or ethics complaint in Soldevila-Lopez nonetheless

led us to conclude that a conflict-of-interest finding should not

be based solely on an inference that the client might have

benefited had defense counsel raised the client's mental

incompetency claim prior to trial. Id. at 486-87.

The government's contention that Perez' Sixth Amendment

claim is indistinguishable from that in Soldevila-Lopez is

untenable, since Perez plainly alleged facts amounting to

malpractice, if found to be true. That is, the Perez motion to

withdraw his guilty plea alleged that Aguayo had pressured him

into pleading guilty at the earlier Rule 11 change-of-plea

hearing in order to "hide [Aguayo's] lack of preparation" for

trial. Perez further alleged that Aguayo had not made even

"minimum" efforts to "act as his counsel or defender" and was

only interested in a fee, but see infra note 1, thus leaving no

doubt that Perez wanted replacement counsel.

In United States v. Ellison, 798 F.2d 1102 (7th Cir.

1986), cert. denied, 479 U.S. 1038 (1987), the district court was

presented with a virtually identical situation in which the

8

defendant had filed a pro se motion to withdraw a guilty plea,

alleging that court-appointed counsel had persuaded him to forgo

trial (despite Ellison's assertions of innocence) because counsel

"did not want to make waves with the federal prosecutors with

whom he would be working in the future." Id. at 1106. The

district court neither appointed new counsel nor obtained a

competent waiver, but instead rejected the plea-withdrawal motion

because defense counsel denied Ellison's accusations at the plea-

withdrawal hearing.

The Seventh Circuit held that defense counsel's "repre-

sentation" at the plea-withdrawal hearing did not meet the Sixth

Amendment minima:

First, counsel was not able to pursue his
client's best interests free from the influ-
ence of his concern about possible self-in-
crimination. . . . [I]f the allegations in
defendant's motion were true, his actions
would be tantamount to malpractice. Any
contention by counsel that defendant's
allegations were not true would (and did)
contradict his client. In testifying against
his client, counsel acted as both counselor
and witness for the prosecution. These roles
are inherently inconsistent.

Id. at 1107 (citation omitted); see also Lopez v. Scully, 58 F.3d

38, 41 (2d Cir. 1995) (holding that a pro se motion to withdraw a

guilty plea based on alleged attorney coercion created an actual

conflict of interest). The identical logic fully warrants the

conclusion that Aguayo may have been laboring under an actual

conflict of interest at the hearing on the pro se plea-withdrawal

motion, which alleged that Aguayo had coerced Perez' guilty plea

in order to conceal his unpreparedness for trial. Nevertheless,

9

we think the appropriate course in this case is to remand for

further factfinding on the merits of the Perez allegations

against Aguayo. As we recognized in Soldevila-Lopez, 17

F.3d at 486, a claim that counsel was disabled by an actual

conflict of interest at a critical stage in the criminal

proceeding amounts to an ineffective assistance claim not

normally appropriate for consideration on direct appeal. See

United States v. Natanel, 938 F.2d 302, 309 (1st Cir. 1991),

cert. denied, 502 U.S. 1079 (1992). Moreover, the district court

record is not "sufficiently developed to allow reasoned consider-

ation" of the merits of the pro se plea-withdrawal motion itself,

Soldevila-Lopez, 17 F.3d at 486 (quoting Natanel, 938 F.2d at

309), since its underlying conflict-of-interest allegations

against Aguayo were never subjected to factfinding in the

district court.

The district court failed to determine, in the first

instance, whether Perez had made "an intelligent and competent

waiver" of his Sixth Amendment right to counsel before proceeding

to hear the plea-withdrawal motion with Perez acting pro se. See

Mateo, 950 F.2d at 47. Instead, it opened the plea-withdrawal

hearing with questions to Aguayo about the pro se plea-withdrawal

motion. Whereupon Aguayo extolled the benefits of the plea

agreement, stated that there were no errors in the earlier Rule

11 plea colloquy conducted by the district court, nor any basis

in law for Perez' pro se plea-withdrawal motion, and, in all

events, that Perez was better off with the plea bargain, given

10

the unlikelihood the he could prevail at trial. Summing up,

Aguayo stated: "I really don't understand why [Perez] wants to

withdraw [the plea agreement]." Compare United States v. Daniel,

962 F.2d 100, 102 (1st Cir. 1992) (attorney argued vigorously and

successfully for client after raising potential conflict).

Whatever their independent merit,1 the views expressed by Aguayo

at the plea-withdrawal hearing directly contradicted the position

advocated by Perez in the pro se motion to withdraw his guilty

plea. Thus, the Rule 32(e) hearing record leaves no doubt that

Perez was left to fend for himself, without representation by

counsel. But see Crowley, 529 F.2d at 1069 (plea withdrawal

hearing is "critical stage" in criminal proceeding). Conse-

quently, Perez was denied effective assistance at the plea-

withdrawal hearing. See Soldevila-Lopez, 17 F.3d at 486;

Ellison, 798 F.2d at 1106-08.

In many instances a trial court may have no reason to

question whether counsel's personal or professional interests

might preclude "effective assistance" to the defendant. In such

circumstances, fair and efficient criminal justice may depend in

significant part upon the ethical obligation of defense counsel

to inform the court whenever a conflict of interest arises in the

1The record discloses cause for Aguayo's concerns for his
client (and for the district court's concern as well) since upon
conviction Perez would face a ninety-year minimum term of

imprisonment, rather than the seventeen-year maximum term

negotiated for him under the plea agreement.

11

course of the proceedings. Guaraldi, 819 F.2d at 18.2 On the

other hand, when the trial court learns or has reason to know

that there is a colorable conflict, it should initiate an

appropriate inquiry to safeguard the accused's Sixth Amendment

rights. Soldevila-Lopez, 17 F.3d at 487; United States v. Allen,

789 F.2d 90, 92 (1st Cir.) ("Where the accused voices objection

to appointed counsel, the trial court should inquire into the

reasons for the dissatisfaction."), cert. denied, 479 U.S. 846

(1986); see generally 2 Wayne R. LaFave & Jerold H. Israel,

Criminal Procedure 11.4(b), at pp. 36-37 (1984) (replacement of

appointed counsel); cf. Fed. R. Crim. P. 44(c) (mandating inquiry

into joint representation).

Given the clarity and specificity of the malpractice

allegations in the pro se plea-withdrawal motion filed by Perez,

and Aguayo's sua sponte attempt to terminate his representation

at the outset of the plea-withdrawal hearing, the appropriate

course for the district court was to resolve the factual dispute

2Were there any substance to Perez' allegations against
Aguayo, a matter yet to be addressed by the district court,
D.P.R. Loc. R. 211.4 would appear to have required that Aguayo
observe Model Rule of Professional Conduct 1.7(b), prohibiting

represent-ation where personal or professional interests
materially restrict counsel's freedom of action in support of a
client's interests. See also id. Rule 1.16(a)(1) (imposing duty

to terminate representation). In all events, at the outset of
the plea-withdrawal hearing, Aguayo promptly indicated that he
intended to withdraw as counsel. The district court nonetheless
proceeded with the hearing, took no action on Aguayo's withdrawal
suggestion and, for all intents and purposes, continued to treat
Aguayo as Perez' counsel, without first determining the disputed
facts underlying the Perez allegations against Aguayo. Thus, the
factual linchpin to the ineffective assistance claim whether
Aguayo in fact labored under a conflict of interest has yet to
be subjected to factfinding.

12

in keeping with the adversarial nature of the plea-withdrawal

request. Moreover, absent a proper waiver of the Sixth Amendment

right to counsel, and a knowing and voluntary election to proceed

pro se on the Rule 32(e) motion, see Ellison, 798 F.2d 1108-09;

United States v. Wadsworth, 830 F.2d 1500, 1510-11 (9th Cir.

1987), appointment of replacement counsel was the only appropri-

ate course. As the hearing transcript plainly demonstrates, the

failure to conduct the required factual inquiry resulted in an

unconstitutional breakdown in the adversarial process, which

compels a remand for further proceedings. See Cuyler, 446 U.S.

at 349-50 (rejecting harmless error analysis).

On remand, the district court shall appoint replacement

counsel for Perez at a plea-withdrawal hearing reconvened for

factfinding purposes to determine the merits of Perez'

allegations against Aguayo, so as to enable its ultimate

determination whether the guilty plea itself was rendered

involuntary by a violation of Perez' Sixth Amendment right to

counsel at all critical stages of the proceeding. See Hill v.

Lockhart, 474 U.S. 52, 56 (1985) (ineffective assistance during

bargaining may render plea involuntary).

B. The Plea Withdrawal Motions
B. The Plea Withdrawal Motions

by the Remaining Defendants
by the Remaining Defendants

We now turn to the claims advanced by the remaining

defendants. Under the well-established framework for evaluating

plea-withdrawal motions, the district court considers all the

circumstances, with particular attentionto four prominentfactors:

(1) the plausibility of the reasons prompting

13

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.

United States v. Parrilla-Tirado, 22 F.3d 368, 371 (1st Cir.

1994) (footnote omitted). If the defendant carries the burden of

persuasion on these four criteria, the district court may still

decline to allow the plea to be withdrawn if it would unfairly

prejudice the government. United States v. Doyle, 981 F.2d 591,

594 (1st Cir. 1992). Moreover, absent a demonstrable abuse of

discretion, we will not reverse a district court decision

granting or denying a request to withdraw a guilty plea filed

before sentencing. United States v. Martinez-Molina, 64 F.3d

719, 732 (1st Cir. 1995).

1. Voluntariness
1. Voluntariness

The most prominent single factor whether these pleas

were knowing, voluntary, and intelligent, within the meaning of

Criminal Rule 11(d), United States v. Cotal-Crespo, 47 F.3d 1, 3

(1st Cir.), cert. denied, 116 S. Ct. 94 (1995) does not favor

these appellants. We have found no abuse of discretion in

disallowing plea withdrawal motions where Rule 11 safeguards were

scrupulously followed by the district court. See, e.g., United

States v. Austin, 948 F.2d 783, 787 (1st Cir. 1991). These

appellants uniformly have failed to identify any defect in their

Rule 11 plea colloquies. Rather, appellants contend that their

14

pleas were rendered involuntary by their attorneys'

recommendations to accept the plea bargains offered by the

government on the morning trial was scheduled to begin. Their

contentions are meritless.

Special Rule 11 requirements have been designed to

minimize the significant risk that "involuntary" guilty pleas may

be tendered in response to "package plea bargain" offers from the

government. See Martinez-Molina, 64 F.3d 732-34. The Rule 11

hearing transcripts in this case disclose that each appellant

repeatedly informed the district court that his guilty plea had

not been coerced by anyone, thereby substantiating the threshold

voluntariness determination for Rule 11(d) purposes. United

States v. Martinez-Martinez, 69 F.3d 1215, 1223 (1st Cir. 1995)

(inquiring whether anyone has coerced the plea satisfies Rule

11), cert. denied, 116 S. Ct. 1343 (1996); compare Martinez-

Molina, 64 F.3d at 733-34 (inquiry restricted to prosecutorial

coercion insufficient). Consequently, without more, their

general allegations of coercion, based on the imminence of trial

or conflict-free defense counsel's enthusiasm for the negotiated

plea bargain, are insufficient to establish an abuse of discre-

tion. Austin, 948 F.2d at 786-87 (noting that court has

discretion to refuse withdrawal of "eleventh hour" plea).

2. Timing
2. Timing

The delays in filing their Rule 32(e) motions likewise

handicap appellants' challenges. See Appendix A. Even a request

filed prior to sentencing, United States v. Isom, 85 F.3d 831,

15

838-39 (1st Cir. 1996), must meet the challenge that "the longer

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

potency his motion must have in order to gain favorable consider-

ation." Parrilla-Tirado, 22 F.3d at 373. These appellants, on

the other hand, offer neither plausible grounds for withdrawing

their pleas, nor explanations for their extended delays in filing

Rule 32(e) motions. See Doyle, 981 F.2d at 595 ("the timing of a

defendant's attempted plea withdrawal is highly probative of

motive"); United States v. Ramos, 810 F.2d 308, 312 (1st Cir.

1987) (contemplating change of heart within days of plea). Thus,

the district court soundly concluded that their belated plea-

withdrawal motions substantially weakened appellants' claims that

their guilty pleas resulted from confusion or coercion.

3. Claims of Innocence
3. Claims of Innocence

Their belated claims of innocence likewise fail to tilt

the balance. The district judge is better positioned to

determine whether claims of innocence are credible. See

Parrilla-Tirado, 22 F.3d at 371. Defendants freely admitted

their guilt during the flawless Rule 11 proceedings conducted

below, and the subsequent Rule 32(e) hearing record evinces only

weak and implausible assertions of innocence.3 The district

3See Ramos, 810 F.2d at 313 (rejecting "self-serving, unsup-

ported claim of innocence raised judicially for the first time
after the Rule 11 hearing"). Here, Sanchez admitted using
firearms, but denied the drug charge, whereas Quintero admitted
selling a small quantity of cocaine, but denied the firearm
charge. Lopez sought to withdraw his plea to the firearm charge.
Garcia asserted no claim of innocence. Confronted with a group
photograph, in which several codefendants were depicted
brandishing firearms, Arroyo claimed the guns were toys.

16

court need not credit bare protestations of legal innocence.

Isom, 85 F.3d at 839.4

Once again we emphasize: there is no absolute right to

withdraw a guilty plea, Austin, 948 F.2d at 786; the decision is

left to the sound discretion of the trial court. Parrilla-

Tirado, 22 F.3d at 371 (noting that district judges possess

special insight into the dynamics of their cases). Thus, the

totality of the circumstances fully supports the rulings that

these appellants presented no fair and just reason to vacate

their pleas. No more was required. Isom, 85 F.3d at 839

(failure to show good cause for withdrawal obviates prejudice-to-

government inquiry).

C. The Arroyo Sentence
C. The Arroyo Sentence

For the first time, Arroyo contends that the district

court violated U.S.S.G. 6B1.1(c) by allowing him to plead

guilty before it considered his presentence report ("PSR").5 As

4Although our cases occasionally list an additional factor
to be considered whether the parties reached or breached a
plea agreement, Isom, 85 F.3d at 834; United States v. Pellerito,

878 F.2d 1535, 1537 (1st Cir. 1989), cert. denied, 502 U.S. 862

(1991) as a general rule we do not conduct the typical Rule 32
analysis in cases involving alleged plea agreement breaches.
See, e.g., United States v. Velez-Carrero, 77 F.3d 11 (1st Cir.

1996). In all events, the government kept its end of the bargain
with appellants.

5Unless it finds a PSR unnecessary, see U.S.S.G. 6A1.1 &

Fed. R. Crim. P. 32(b)(1), the district court is expected to
"defer its decision to accept or reject . . . any plea agreement

pursuant to Rules 11(e)(1)(A) and 11(e)(1)(C) until there has
been an opportunity to consider the [PSR]. . . ." U.S.S.G.
6B1.1(c) (emphasis added). Arroyo and the government reached a
plea agreement under Criminal Rule 11(e)(1)(C), providing for a
specific sentence.

17

Arroyo concedes, however, the failure to raise this claim below

mandates "plain error" review. See Fed. R. Crim. P. 52(b); see

also United States v. Olano, 507 U.S. 725 (1993).

The flaw in Arroyo's position is that he offers no

reason for equating acceptance of his guilty plea with the accep-

tance of a plea agreement under 6B1.1(c). See United States v.

Ewing, 957 F.2d 115, 118 (4th Cir.) (rejecting similar argument),

cert. denied, 505 U.S. 1210 (1992). Arroyo entered a guilty plea

on September 7, 1994, and, in accordance with Fed. R. Crim. P.

11(e)(2) (permitting district court to defer decision to accept

or reject Rule 11(e)(1)(C) plea agreements), the district court

announced that its acceptance of the plea agreement was

conditioned upon its review of the PSR. See United States v.

Johnson, 53 F.3d 831, 832-33 (7th Cir. 1995) (finding, on similar

facts, that defendant had not been sentenced at Rule 11 hearing).

A PSR was submitted to the district court in timely fashion prior

to sentencing on February 13, 1995. At the sentencing, the

district court found that the agreed sentence was within the

applicable guideline range, see U.S.S.G 6B1.2(c)(1), accepted

the plea agreement, see Ewing, 957 F.2d at 118, and imposed the

sentence prescribed in the plea agreement.

Moreover, Arroyo has not squared his view of 6B1.1(c)

with Fed. R. Crim. P. 32(b)(3), which prohibits submission of a

PSR until the defendant has pleaded or been found guilty, unless

the defendant consents in writing. The overarching purpose

served by the PSR is to assist the district court at sentencing.

18

See U.S.S.G. 6A1.1 & Fed. R. Crim. P. 32(b)(1) (requiring

completed PSR "before the sentence is imposed"). Nor are we

persuaded that the district court erred. But see Olano, 507 U.S.

at 732-33 (appellant must establish "error" under Rule 52(b)).6

Finally, we reject the frivolous argument that the

indictment barred Arroyo from stipulating to the base offense

level specified in the plea bargain. Arroyo pled guilty to

conspiring to distribute "not less" than fifty grams of cocaine

base, five kilograms of cocaine, and one kilogram of heroin. By

its plain language, the indictment set no upper limit on drug

quantity. See United States v. Lindia, 82 F.3d 1154, 1159 n.3

(1st Cir. 1996) (indictment alleging drug dealing "in excess" of

50 kilograms did not bar sentence based on quantity greater than

50 kilograms). Although Arroyo and several other appellants

challenge the factual bases for the district court's drug

quantity determinations as well, their stipulations to their base

offense levels constitute admissions to the subsidiary drug

quantities, see U.S.S.G. 2D1.1(c) (determining base offense

level according to drug quantity). See Lindia, 82 F.3d at 1159-

60, & 1160 n.3 (suggesting that guilty plea might preclude drug

6Although Arroyo offers no authority for the suggested
interpretation of U.S.S.G. 6B1.1(c), our research indicates
that some courts of appeals recommend, but do not require, that
PSRs be made available to defendants prior to Rule 11 hearings
when the applicable guideline range is unclear. See, e.g.,

United States v. Horne, 987 F.2d 833, 838-39 (D.C. Cir.), cert.

denied, 510 U.S. 852 (1993). We discern no reason to suggest

such a course in these circumstances, however, where the
defendant knew the precise sentence he was to receive under the
plea agreement. See Fed. R. Crim. P. 11(e)(1)(C).

19

quantity challenge). As the record otherwise discloses adequate

factual support for the agreed-upon sentence, see Fed. R. Crim.

P. 11(f) (accuracy of plea), and Arroyo's remaining arguments

merit no discussion, we affirm the district court judgment

against him.

20

III
III

CONCLUSION
CONCLUSION

The case is remanded for further proceedings,

consistent with this opinion, see supra pp. 11-12, on the merits

of the pro se plea-withdrawal motion filed by Perez, as to which

we express no opinion. Notwithstanding our confidence in the

district judge who presided over these proceedings, whose conduct

of the other plea-withdrawal proceedings was exemplary, we direct

that the Perez matter be assigned to a different judge on remand.

Mateo, 950 F.2d at 50 n.10. As the five remaining appellants

have demonstrated no error in their plea-withdrawal proceedings,

and their remaining arguments are meritless, the district court

judgments relating to those defendants are affirmed.

SO ORDERED.
SO ORDERED.

21

APPENDIX A
APPENDIX A

Appellant Guilty Plea Withdrawal Reasons
Appellant Guilty Plea Withdrawal Reasons
Motion
Motion
Arroyo 9/07/94 12/27/94, sup- Didn't under-
plemented on stand plea
1/09/95 and agreement;
2/13/95. Rule 11 viola-
tions; claimed
innocence.

Garcia 9/07/94 11/28/94 Attorney coer-
cion; thought
it was all or
none package
deal; limited
education.

Lopez 9/07/94 2/02/95 Mistakenly
thought he had
to plead
guilty to both
counts; inno-
cent of fire-
arms charge.

Quintero 9/07/94 11/08/94 Attorney and
familial coer-
cion; innocent
of firearms
charge.

Sanchez 9/08/94 12/09/94 Attorney coer-
cion; 18 years
of age; preoc-
cupied with
federal
carjacking
trial; inno-
cent of drug
charge.

22