United States v. Pagan-Ortega

United States Court of Appeals
For the First Circuit

No. 02-2484

UNITED STATES OF AMERICA,

Appellee,

v.

VICTOR PAGAN-ORTEGA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.

Juan P. Rivera-Román, by Appointment of the Court, for
appellant.
Daniel J. Vaccaro, Assistant United States Attorney, with whom
H.S. Garcia, United States Attorney, Sonia I. Torres-Pabón,
Assistant United States Attorney, and Nelson Pérez-Sosa, Assistant
United States Attorney, were on brief for appellee.

June 9, 2004
 COFFIN, Senior Circuit Judge. This is an appeal from a

judgment following a conditional plea of guilty to one count

charging possession with intent to distribute more than 50 grams of

crack cocaine, in violation of 21 U.S.C. § 841(a)(1), and one count

of possession, during and in relation to drug trafficking, of a

firearm in furtherance of such drug trafficking, in violation of 18

U.S.C. § 924(c)(1). Appellant raises two issues: improper

judicial participation in the plea negotiations and an erroneous

refusal to permit appellant to withdraw a plea of guilty that

appellant asserts was both uninformed and involuntary. We conclude

that there was no plain error as to the first issue and, as to the

second, no abuse of discretion in concluding that appellant had not

sustained his burden of establishing a fair and just reason for

withdrawal of his plea.

I. The Facts

The essential facts as proffered by the government and

accepted by appellant are that after considerable surveillance, and

under authority of a warrant, the residence of appellant was

searched and yielded approximately 1,200 capsules of crack cocaine,

1,168 grams of crack cocaine, plus a considerable quantity of

cocaine rock, heroin, marijuana, nearly $2,000 in currency, and a

loaded, .40-caliber Beretta pistol. A laboratory test ascertained

that a total of 95.8 grams of cocaine base were seized.

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 The indictment issued on May 30, 2001. On July 10, 2001,

a status conference was held. On July 31, appellant's then

attorney wrote to the prosecution, inquiring what the government's

position would be as to any plea agreement. On August 7, the

government responded, noting first that if appellant were convicted

following jury trial, the 95.8 grams of cocaine base would result

in a Base Offense Level (BOL) of 32, yielding a range of 121-151

months' imprisonment under the Sentencing Guidelines, and that

conviction on the firearms count would require an additional 60

months, for a total of 15 to 17-1/2 years. The government offered

to stipulate that appellant be held responsible for an amount

between four and five grams of cocaine base, and to recommend a

reduction of three levels for acceptance of responsibility,

yielding a Guidelines range of 37-46 months' imprisonment. The

government would recommend 46 months on one of two drug counts and,

on the firearms count, the mandatory 60 months, for a total 106

months or 8-1/2 years. It would dismiss the second drug count.

On August 14, appellant's attorney replied, pointing out

that the weapon and the drugs were found in different locations,

and that this was not "typical" weapon-drug trafficking activity.

On August 15, the day before the date set for a change of plea

hearing, appellant's attorney attempted unsuccessfully to see

appellant at the Metropolitan Detention Center. Upon finding that

appellant had been transported to court, the attorney returned to

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court only to find that by this time, appellant had been taken back

to the Center.

On the next day, August 16, 2001, the district court held

the change of plea hearing. Immediately prior to the hearing,

appellant finally had a chance to discuss the plea agreement with

his attorney. Although the attorney told appellant that he was

willing to go to trial if appellant so desired, appellant

determined that he would accept the plea agreement. The court was

thus informed at the start of the hearing that, although not yet

reduced to writing, a plea agreement had been reached. The court

questioned both the government and appellant's counsel, confirming

that both parties had the same understanding of the terms. Once

satisfied, the court concluded "we should take the plea," adding "I

don't think we need to postpone this any further." In all, the

court inquired no fewer than four times as to whether an agreement

had been reached, and whether there was any objection to proceeding

to take the plea. Affirmative responses were forthcoming from both

appellant and his counsel. The court asked whether appellant had

had enough time to consult with his attorney concerning the plea

agreement. The answer was: "Well, yes, I did." He then confirmed

that he was satisfied with his attorney's work.

The appellant then briefly conferred with his attorney,

who told the court that appellant wanted the court to "give an

opinion of what he's doing." The court responded that its purpose

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was to give the necessary information that defendant would need to

make his final decision to plead guilty or not. The judge added

that he would consider the recommendation made to him by the

government and that "unless something extraordinary pops up in the

presentence report," he foresaw no reason why he would not follow

the recommendation. This, defendant acknowledged, answered his

question.

The court explained the various rights that would be

surrendered by the plea — the right to jury trial, in which the

determination of guilt or innocence would be subject to the

reasonable doubt standard, the right to cross-examine adverse

witnesses, the right to offer evidence in his own defense, and the

right to testify or remain silent. The court also inquired about

the firearms count, eliciting from appellant the information that

the firearm had been brought by appellant to his home and placed in

a drawer, loaded, his intention being to protect himself in the

conduct of his drug trafficking.

The court then commented on the indictment, specifically

noting that the mention of 50 grams or more triggered very severe

penalties. The appellant replied that he understood the charge.

The court queried how much crack cocaine was being stipulated — for

purposes of the plea — as being possessed by appellant or as

relevant conduct. The prosecution replied that the amount being

stipulated was "at least 4 but less than 5 grams of cocaine base."

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The prosecution reported that the actual amount of cocaine base

seized, as reported by the chemist, was 95.8 grams. This would, he

said, yield a BOL of 30 rather than the BOL of 24 specified in the

plea agreement.1 It was at this point that the court told

appellant that the government was "giving him a super break,"

adding the qualification that if the case were to go to trial, the

government had to prove that appellant acted willfully.

The change of plea hearing concluded with questions

regarding the firearm; the court informed the appellant that it was

required to give a consecutive 60-month sentence, should he plead

guilty to that count. The appellant stated that he understood what

the court was saying but asked a question as to the meaning of the

word "consecutive." He asked: "Your honor, does consecutive mean

it will be one after the other?" The court confirmed this

understanding.

The court then stated that if it followed the

recommendation of the plea agreement, appellant would be sentenced

to 37 months2 on the drug charge and 60 months on the firearms

charge, for a total of 97 months. The court contrasted the time

appellant would have to serve on the first count alone - 97 months

1
Actually, the 95.8 grams would put the BOL up to 32, as
indeed the prosecutor had stated in his letter of August 7.
2
We note that the government had agreed to reduce its August
7 offer of 46 months on the drug count to 37 months, the minimum
time under BOL 21 for one in appellant's criminal history category
(I)."

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- if there had been a trial and a finding of guilt regarding

possession of 50 grams of cocaine base. The court did not

reference the mandatory 60 months that would follow consecutively

if the appellant was also found guilty of the firearms charge.

After ascertaining that nobody threatened or made promises to

appellant, the court received the prosecution's proffer of evidence

that the United States would offer at trial, and such evidence was

accepted by appellant. The session closed with the statement of

the court that the appellant was "really getting a good deal" on

account of the government's drug quantity stipulation.

Apparently as a result of conversations with other

attorneys and inmates while at the detention center, appellant came

to regret his decision to plead guilty. He refused to sign the

memorialization of the plea agreement, and, in October 2001, filed

a pro se motion to withdraw his plea and to change counsel. New

counsel for appellant subsequently filed a further motion to

withdraw the plea in February 2002. Following an evidentiary

hearing, the district court denied the motion to withdraw. The

appellant was sentenced on October 16, 2002 to 37 months'

imprisonment on the drug charge and 60 months' imprisonment on the

firearms charge, to be served consecutively.

II. Analysis

Appellant describes a poignant scene — that of a young

man, with a family, a first-time offender, whose opportunity to

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discuss a proffered plea agreement with his lawyer arose only on

the brink of a scheduled change of plea hearing. Facing a

potential sentence that threatened to incarcerate him for the rest

of his younger years, he was called upon to decide, after minimal

opportunity for deliberation or consultation with his attorney,

whether or not to accept a plea agreement, the terms of which had

just been conveyed to him. He further points to signs of his

uncertainty during the hearing: his distinct "Well" before saying

he had had enough time to consult his attorney, his request for

advice from the court, and his uncertainty about the meaning of

"consecutive." He argues that these deficiencies evidenced his

lack of understanding of the charges against him and thus rendered

his plea involuntary.

He also identifies three statements by the court as

invading the forbidden territory of a plea negotiation: the

suggestion that the plea be taken immediately, and the court's two

references to the plea agreement as constituting "a super break"

and "really . . . a good deal." He asserts the classic argument

against judicial intervention in plea negotiations, which is

explicitly proscribed by Fed. R. Crim. P. 11(c)(1)3 — that words of

3
The relevant portion of Rule 11(c)(1) reads:
In General. An attorney for the
government and the defendant's attorney,
or the defendant when proceeding pro se,
may discuss and reach a plea agreement.
The court must not participate in these
discussions.

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wisdom from a judge are all too likely to be coercive; that the

judge's impartiality may be diminished; and that his role may

appear to be that of an advocate rather than that of a neutral.

See United States v. Bierd, 217 F.3d 15, 19 (1st Cir. 2000); United

States v. Daigle, 63 F.3d 346, 348 (5th Cir. 1995). We first

consider the court's role in the plea process and then address the

involuntariness claim.

III. Alleged Participation in Plea Negotiations

We face a threshold question whether the court's comments

at the change of plea hearing were made during the plea

negotiations. While assurances were given the court that the

essential terms of the plea agreement had been established, there

was no written document signed by appellant. Indeed, the record

still contains no document signed by appellant. Furthermore, at

the outset of the hearing, the court arguably treated appellant's

final decision as one yet to be made. Under the circumstances, we

shall assume for the purposes of this case that the court

participated in the plea agreement discussions.

If objection had been made in the district court that

these statements constituted improper judicial intrusion into plea

discussions, the government would have had the burden to

demonstrate harmless error. See Fed. R. Crim. P. 11(h). But no

such objection was made either at the change of plea hearing or in

Fed. R. Crim. P. 11(c)(1).

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either of the two subsequent motions for plea withdrawal. The

standard governing our decision is therefore that of plain error,

i.e., at bottom, whether the error, if such occurred, "affected the

fairness, integrity or public reputation of judicial proceedings."

United States v. Gandia-Maysonet, 227 F.3d 1, 5-6 (lst Cir. 2000)

(citing United States v. Olano, 507 U.S. 725, 732 (1993)). Under

this standard, the burden to establish such broad-ranging effects

is upon defendant. See United States v. Vonn, 535 U.S. 55, 62 n.4

& 65 (2002) (endorsing our approach in Gandia-Maysonet and reciting

the burden "on silent defendants generally under the plain error

rule to show the error, plain, prejudicial, and disreputable to the

judicial system").

This is a very considerable burden. The court obviously

was led to believe that an agreement had been reached. It took

care not to overstate the finality of any negotiations, reserving,

as it should, the right to change its opinion for good reason. The

court's suggestion that "we should take the plea" does not,

however, rise to the level of inappropriate judicial participation.

In context, the comment is most reasonably construed as recognizing

that the lack of a written document — though perhaps not the best

practice — need not stymie entry of a plea if both sides have the

same understanding of the agreement's terms.

The comments about "super break" and "good deal"

admittedly could have exercised a considerable influence upon the

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appellant. But they were clearly related to a factual and

compelling comparison with the risk of conviction following trial.

It was, at worst, the difference between the plea bargain term of

97 months or eight years, and the Guidelines term of 181 to 211

months or 15 to 17 years. The information was known to appellant's

attorney before the change of plea hearing. We must assume that it

was also communicated to appellant. At the very least, if for some

reason appellant was acquitted of the firearms count, thus avoiding

the 60-month mandatory consecutive sentence under 18 U.S.C. §

924(c)(1), he would still face from 121 to 151 months or 10 to 12-

1/2 years. Finally, we note that appellant has not advanced any

claim or evidence that he was innocent or that he had a basis for

believing that the government's case could not be proven. We

therefore conclude that on this record we cannot find plain error.

But this does not end our labors. The very length to

which we have gone in describing the events prior to the change of

plea hearing and the hearing itself was necessary in order to

explain why a facially appealing claim of improper judicial

participation in a plea proceeding prior to its solemnization in

writing did not, on close analysis, demonstrate a basic unfairness

and lack of integrity in the proceeding. The lesson is that

however certain a judge may be that an oral agreement is so

favorable to a defendant that it is likely to be finalized in

documentary form, the judge should refrain from expressing an

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opinion. An ounce of trial-level restraint is worth a pound of

appellate deliberation.

IV. Withdrawal of the Plea

We turn now to appellant's remaining allegations that

ineffective communication with counsel, a deficient plea colloquy

and the duress of a quick decision so undermined his plea that the

court abused its discretion in denying the motion to withdraw.

Under Fed. R. Crim. P. Rule 11(d), a defendant may withdraw a plea

prior to sentencing only upon showing a "fair and just reason" for

the request. It is axiomatic that a defendant does not have an

automatic right to withdraw a plea at that stage. United States v.

Marrero-Rivera, 124 F.3d 342, 347 (1st Cir. 1997).

The well established framework for determining whether a

defendant has met the "fair and just" standard requires that we

consider the plausibility and weight of the proffered reason for

withdrawal, the timing of the request, whether there has been an

assertion of innocence, and whether the plea was voluntary, knowing

and intelligent. United States v. Cotal-Crespo, 47 F.3d 1, 4 (1st

Cir. 1995). This last factor is of particular significance, as it

implicates the three "core" considerations of protection afforded

a defendant under Fed. R. Crim. P. 11, namely, that a defendant

must be free from coercion, must understand the charges, and must

understand the consequences of the guilty plea. United States v.

Isom, 85 F.3d 831, 835 (1st Cir. 1996). The district court wrote

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a thoughtful and thorough opinion in response to appellant's motion

for reconsideration, and we add our comments only on the more

salient points raised in appellant's brief before this court.

Appellant's first attack centers on the limited time he

had to consider the proffered agreement, which he claims prevented

him from understanding the terms of the plea and the charges.

Although negotiations with the government began in late July, Pagan

was informed of the plea agreement only on August 16, the morning

of the hearing. He maintains that his decision to plead guilty

stemmed primarily from an overriding concern to be reunited with

his family as soon as possible, and that he didn't have adequate

time to consider his alternatives. He described his feelings on

that day as "Nervous. Scared. And worried."

At the evidentiary hearing on the withdrawal motion,

however, he responded that when he first appeared before the court,

he felt no pressure to plead guilty. After further probing by his

attorney, he said he began to feel pressure after the judge

"started asking questions." Although we are not insensitive to the

stress inherent in a plea hearing — including the necessary

interaction with a potentially intimidating judicial figure — we

have said before that "[t]he relevant question for plea withdrawal

is not whether the accused was sensitive to external considerations

. . . but instead whether the decision to plead was voluntary,"

United States v. Pellerito, 878 F.2d 1535, 1541 (1st Cir. 1989).

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 Appellant emphasizes the exigent circumstances of his

decision, but our prior cases have upheld plea agreements accepted

under similarly tight deadlines. See United States v. Sanchez-

Barreto, 93 F.3d 17, 23 (1st Cir. 1996) (pleas not rendered

involuntary by attorney recommendations to accept the bargains

offered by the government only on the morning trial was to begin);

Isom, 85 F.3d at 833 (affirming denial of motion to withdraw even

though defendant first saw the plea agreement five minutes before

entering the courtroom). We discern no evidence of "debilitating

emotional strain" that would distinguish this case. Pellerito, 878

F.2d at 1541.

Furthermore, the district court's exhaustive colloquy

reveals that the consequences of the plea and the terms of the

agreement were clearly explained to appellant, and that he

affirmatively acknowledged his understanding of those explanations.

Appellant recites a series of alleged omissions in the plea

colloquy, including failing to advise him that he would forfeit his

right to present pre-sentence motions, to participate in jury

selection, to present his own witnesses at trial, and his right to

a unanimous verdict. However, as the district court noted, none of

those specific rights are required elements under Fed. R. Crim. P.

11(b), which governs the substance of the colloquy.

Our review of the court's dialogue with appellant reveals

that the court clearly and comprehensively explained both the

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rights he was foregoing, as required under Rule 11(b), as well as

the precise charges and sentencing details. We have every reason

to accord credit to appellant's affirmative responses, particularly

as his counsel took care to note that he had graduated from high

school and had been an excellent student in his studies at a

technical institute. See Cotal-Crespo, 47 F.3d at 6 ("The manner

in which the charge is explained and the method for determining the

defendant's understanding of the charge will vary from case to case

depending upon the complexity of the charges, the capacity of the

defendant, and the attendant circumstances.").

The exchanges relied upon by appellant as indicative of

his confusion and lack of understanding are, especially in context,

not persuasive. First, at the beginning of the proceeding, the

appellant, through his attorney, sought advice from the bench as to

his decision to plead guilty. While this may suggest some

unfamiliarity with the role of the judge in the plea bargaining

process, it does not suggest a constitutional deficiency in the

voluntariness and intelligence of appellant's decision to plead,

particularly since the court accurately explained that the decision

rested solely with appellant. Second, although appellant did ask

about the definition of "consecutive" with respect to the term of

imprisonment, in phrasing his question he himself volunteered the

correct definition. The court simply confirmed this understanding.

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 Appellant characterizes his next argument as a "lack of

communication" between appellant and his then counsel, Jesus Rivera

Delgado. The district court construed this as a claim of

ineffective assistance of counsel, to be evaluated according to the

standard set forth in Strickland v. Washington, 466 U.S. 668

(1984). See United States v. Ramos, 810 F.2d 308, 314 (1st Cir.

1987) ("At the outset, we hold that, the Strickland v. Washington

. . . standard for evaluating [a Rule 11(d)] claim applies to a

. . . presentence challenge to a guilty plea."). Both below and on

appeal, appellant focused on his limited contact with Rivera prior

to the plea hearing, as well as Rivera's failure to file a motion

to suppress. The district court's analysis, which followed

extensive testimony and cross-examination of Rivera, determined

that appellant's claim failed to satisfy the first prong of the

Strickland standard because it did not identify "acts or omissions

of counsel that are alleged not to have been the result of

reasonable professional judgment." Strickland, 466 U.S. at 690.

With respect to the apparently limited communication

between appellant and counsel prior to the plea hearing, the

district court correctly focused on the fact that at the

evidentiary hearing, appellant was given more than one opportunity

to raise an objection to counsel's performance. In response to the

court's questioning, he confirmed that he had sufficient time to

discuss the terms and implications of the plea with counsel, and

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that he was satisfied with the work that counsel had done thus far.

Although Rivera's diligence may have left much to be desired, we

defer to the district court's determination that "many of the

purported deficiencies . . . do not appear to be so egregious as to

violate Defendant's constitutional rights."

Appellant also contends that the search warrant was

defective and that Rivera therefore should have filed a motion to

suppress. As further evidence of Rivera's ineffectiveness,

appellant points to Rivera's failure to pick up a particular

discovery package - potentially relevant to whether the motion to

suppress would succeed - until after the time to file defensive

motions expired. The district court, however, credited Rivera's

testimony that he made a calculated determination not to file a

motion to suppress because he felt there was no chance of

prevailing. Concerned that a summary denial of the motion would

enhance the government's position in any future plea negotiations,

Rivera instead decided to use the more questionable aspects of the

search as leverage to secure a highly favorable drug quantity

stipulation. Furthermore, Rivera stated that he specifically

advised appellant against filing a motion to suppress following the

preliminary hearing in May 2001. Appellant began pressing the

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issue only after his plea hearing, apparently owing to suggestions

he received while incarcerated.4

Although in retrospect, appellant may have preferred to

pursue the riskier path of standing trial, none of these "garden-

variety second thoughts" provides a basis for withdrawing the plea.

United States v. Richardson, 225 F.3d 46, 52 (1st Cir. 2000); see

also Marrero-Rivera, 124 F.3d at 349 ("Nor can the mere fact that

[appellant] and counsel may have undervalued the merit of any

potential defense render the Rule 11 plea involuntary."); Isom, 85

F.3d at 837 (motion to withdraw must rest on more than "defendant's

second thoughts about some fact or point of law")(citations

omitted).

A final factor, delay in moving for plea withdrawal,

furnishes further support for its denial. The two month lag

between the plea hearing and appellant's motion to withdraw places

it well within the area of vulnerability because of untimeliness.

4
In the evidentiary hearing on the motion to withdraw, there
was some discussion of appellant's contention that he would have
been able to challenge the firearms charge under Bailey v. United
States, 516 U.S. 137 (1995). While incarcerated, appellant
apparently received advice from an undisclosed source (perhaps
another inmate or inmate's attorney) that this was a viable
argument. In Bailey, the Supreme Court held that punishment under
18 U.S.C. § 924(c), which at the time pertained to those who used
or carried a firearm, required "evidence sufficient to show an
active employment of the firearm." Id. at 143 (emphasis added).
Appellant has wisely not made this specific claim on appeal, as it
is clear that the relevant portion of 18 U.S.C. § 924(c) has been
amended - in direct response to Bailey - to include mere possession
in furtherance of a drug trafficking crime. See United States v.
Grace, F.3d , 2004 WL 1002568 (1st Cir. 2004).

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See Ramos, 810 F.2d at 313 (determining that a thirteen-day delay

between hearing and motion to withdraw disfavored defendant);

Pellerito, 878 F.2d at 1541 (eight-week delay between plea and

motion to withdraw weighed against defendant).

The decision of the district court denying the motion to

withdraw the plea is affirmed.

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