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United States v. Sanchez Barreto, 95-1297 (1996)

Court: Court of Appeals for the First Circuit Number: 95-1297 Visitors: 16
Filed: Aug. 21, 1996
Latest Update: Mar. 02, 2020
Summary: guilty plea. 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.
USCA1 Opinion









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.

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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
____________________


































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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


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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). _____ ______


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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


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

15, 17 (1st Cir. 1987).


















































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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


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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,

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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.

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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.

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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

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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, ______________ ____


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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.

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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.

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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. __________


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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). ___

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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.












































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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






Source:  CourtListener

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