Filed: Mar. 01, 2013
Latest Update: Feb. 12, 2020
Summary: district court referred these motions to a magistrate judge.bail conditions.that, therefore, the challenged periods were properly excluded.against potential abuses by defense counsel.he himself makes in open court at the time of his plea.United States v. Walker, 665 F.3d 212, 234 (1st Cir.
United States Court of Appeals
For the First Circuit
No. 10-2163
UNITED STATES OF AMERICA,
Appellee,
v.
FREDERICK GATES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Lynch, Chief Judge,
Selya and Howard, Circuit Judges.
Todd A. Bussert, with whom Frost Bussert, LLC was on brief,
for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.
March 1, 2013
SELYA, Circuit Judge. Appalled by his conviction and
sentence on drug-trafficking charges, defendant-appellant Frederick
Gates seeks to wipe the slate clean. His appeal presents, among
other issues, important questions of first impression in this
circuit about the operation of the Speedy Trial Act (STA), 18
U.S.C. § 3161.
The defendant's arguments are forcefully advanced but,
when their reverberations subside, they prove to be untenable.
Accordingly, we affirm the judgment below.
I. TRAVEL OF THE CASE
On February 27, 2008, a federal grand jury sitting in the
District of Maine indicted the defendant for conspiring to
distribute cocaine base (crack cocaine) and for the substantive
offense of possessing the drug with the intent to distribute it.
See 21 U.S.C. §§ 841(a)(1), 846. In a superseding indictment, the
grand jury expanded the temporal scope of the charged conspiracy.
The defendant initially maintained his innocence.
Through a succession of court-appointed attorneys, he filed a
salmagundi of pretrial motions, including motions to suppress
certain evidence and to dismiss the indictment on speedy trial
grounds. When all of these motions came to naught, see United
States v. Gates (Gates I), No. 08-42-P-H, 2008 WL 5382285 (D. Me.
Dec. 19, 2008) (motions to suppress); United States v. Gates (Gates
-2-
II), 650 F. Supp. 2d 81 (D. Me. 2009) (motion to dismiss), the case
went to trial.
On the second trial day, the defendant shifted direction
and entered a conditional guilty plea. Fed. R. Crim. P. 11(a)(2).
The tendered plea reserved the right to contest the district
court's earlier denials of his motions to suppress and to dismiss.
The district court accepted the conditional plea and ordered the
preparation of a presentence investigation report (PSI Report).
The probation department issued a draft of the PSI Report
on November 12, 2009. At that juncture, the defendant had a change
of heart: he moved pro se to withdraw his guilty plea and requested
a new (court-appointed) attorney. The district court appointed
replacement counsel — the defendant's fifth attorney — who filed an
amended motion for withdrawal of the plea. The government opposed
the motion and, in due course, the court rejected the defendant's
importunings. See United States v. Gates (Gates III), 698 F. Supp.
2d 212, 219 (D. Me. 2010). The court sentenced the defendant to
serve 240 months in prison. This timely appeal ensued. In this
court, the defendant is represented by yet another court-appointed
attorney (his sixth).
II. ANALYSIS
The defendant's asseverational array has four main
elements. We address them sequentially.
-3-
A. Suppression.
Prior to trial, the defendant moved to suppress the
fruits of both a motor vehicle stop and a residential search. The
district court referred these motions to a magistrate judge. See
28 U.S.C. § 636(b)(1)(B); Fed. R. Crim. P. 59(b)(1). Following an
evidentiary hearing, the magistrate judge recommended that both
motions be denied. See Gates I, 2008 WL 5382285, at *13. The
district court, over the defendant's objections, adopted the
recommended decision.1 On appeal, the defendant assigns error to
this ruling.
In reviewing a district court's denial of a motion to
suppress, we assess factual findings for clear error. United
States v. Fagan, 577 F.3d 10, 12 (1st Cir. 2009). This deferential
standard requires us to "proceed circumspectly and with regard for
the district court's superior vantage point." United States v.
Espinoza,
490 F.3d 41, 46 (1st Cir. 2007). Conversely, the
district court's answers to abstract questions of law engender de
novo review. See
Fagan, 577 F.3d at 12.
1. The Motor Vehicle Stop. Consistent with the standard
of review, we recount the facts relevant to the motor vehicle stop
as supportably found by the district court. At around 11:00 a.m.
1
For ease in exposition, we do not distinguish hereafter
between the magistrate judge and the district judge. Rather, we
take an institutional view and refer to them collectively as "the
district court."
-4-
on September 19, 2007, the defendant was operating a Chevrolet
Tahoe with Maine license tags on Interstate Route 85 in Gaston
County, North Carolina. A patrol officer, William Hall, clocked
the defendant's vehicle at a speed of 77 miles per hour (12 miles
above the posted limit).
Hall initiated a traffic stop. He approached the Tahoe
and asked the defendant, who appeared nervous, for his driver's
license. He then inquired about the defendant's destination.
Hall called for backup and for a canine unit. After
reinforcements arrived, another officer, Brent Roberts, approached
the passenger; in the process, he observed a white object behind
the driver's seat that he thought might be a set of digital scales
and a substance that appeared to be marijuana residue in the center
console.
Officer Hall ran a computerized criminal history search,
which revealed that the defendant had a significant record. At
approximately 11:21 a.m., Hall instructed the defendant to step out
of the vehicle. When the defendant complied, Hall issued him a
warning for the speeding violation. Hall indicated that he would
"like to run [his] canine around [the] car," and the defendant
consented. Hall also conducted a pat-down search, which turned up
a large sum of cash and several cell phones.
The dog subsequently "alerted" to the front passenger
side of the vehicle, thus indicating the presence of contraband.
-5-
When this occurred, the defendant's passenger admitted to having
smoked marijuana and produced a small bag of it.
The defendant says that the avails of this vehicle stop
ought to have been suppressed. We do not agree.
Judicial review of investigatory stops, commonly known as
Terry stops, see Terry v. Ohio, 392 U.S. 1, 19-21 (1968), demands
a two-tiered evaluation.2 First, the stop must be justified at its
inception. See United States v. Ruidíaz,
529 F.3d 25, 28 (1st Cir.
2008). Second, actions undertaken during the stop must be
reasonably related in scope to the stop itself "unless the police
have a basis for expanding their investigation." United States v.
Henderson,
463 F.3d 27, 45 (1st Cir. 2006).
In the Terry milieu, reasonable suspicion is the
touchstone for an initial stop. Ruidíaz, 529 F.3d at 28. While
reasonable suspicion is a fluid concept that lacks precise
definition, it is common ground that "reasonable suspicion requires
more than a mere hunch but less than probable cause."
Id. at 29.
An inquiring court must examine the totality of the circumstances
"to see whether the detaining officer ha[d] a particularized and
objective basis for suspecting legal wrongdoing." United States v.
2
North Carolina lies within the geographic borders of the
Fourth Circuit whereas Maine lies within the First Circuit. The
parties squabble over whether Fourth Circuit precedents, rather
than First Circuit precedents, should apply to this issue. This
contretemps suggests a false dichotomy: the legitimacy of a Terry
stop is a matter of federal constitutional law. Geography does not
matter.
-6-
Arvizu, 534 U.S. 266, 273 (2002) (internal quotation marks
omitted).
At the second tier, the court must scrutinize "whether
the officer's subsequent actions were fairly responsive to the
emerging tableau." United States v. Chhien, 266 F.3d 1, 6 (1st
Cir. 2001). Although such actions ordinarily must bear some
relation to the purpose of the initial stop, an officer "may shift
his focus and increase the scope of his investigation by degrees if
his suspicions mount during the course of the detention."
Id.
In the case at hand, the defendant does not challenge the
officers' actions during the vehicle stop. Instead, he confines
his attack to the first tier of the Terry framework and asserts
that Hall did not have reasonable suspicion to make the initial
stop. The alleged speeding, he says, was merely a pretext. This
assertion need not detain us.
In his motion to suppress, the defendant explicitly
"concede[d] that based upon his speed Officer Hall had a reasonable
articulable suspicion to effect a traffic stop of his vehicle."
This concession corresponds to the officer's account and no more is
exigible to render the stop legitimate. See Whren v. United
States, 517 U.S. 806, 812-13 (1996) (holding that the appropriate
Fourth Amendment test is one of objective reasonableness);
Ruidíaz,
529 F.3d at 29 (same). That ends this aspect of the matter: a
party cannot concede an issue in the district court and later, on
-7-
appeal, attempt to repudiate that concession and resurrect the
issue. To hold otherwise would be to allow a litigant to lead a
trial court down a primrose path and later, on appeal, profit from
the invited error. We will not sanction such tactics. Cf.
Merchant v. Ruhle, 740 F.2d 86, 92 (1st Cir. 1984) (warning against
permitting the use of "agreeable acquiescence to perceivable error
as a weapon of appellate advocacy").
2. The Residential Search. We turn next to the
defendant's motion to suppress evidence seized during a search of
his home in Maine. To set the stage, we rehearse the relevant
facts as supportably found by the district court.
On August 29, 2007, local authorities arrested the
defendant in Maine on a charge of operating a motor vehicle under
the influence of intoxicants. A state magistrate released him on
bail conditions, which provided among other things that he would
not use or possess any alcoholic beverages or illegal drugs and
that he would "submit to searches of [his] person, vehicle and
residence . . . upon articulable suspicion."
The defendant was arrested again some six weeks later —
this time on charges of disorderly conduct and resisting arrest.
He was again released on bail, subject to the alcohol and drug
conditions described above. His new bail conditions, however,
contained a significant change: they stipulated that he would
"submit to searches of [his] person, vehicle and residence . . . at
-8-
any time without articulable suspicion or probable cause" (emphasis
supplied).
On November 13, 2007, these bail conditions remained in
effect. On that date, police officers in Lewiston, Maine observed
the defendant leaving a convenience store with a brown bag that
appeared to contain a six-pack or a twelve-pack of a beverage. A
uniformed police officer, Brian Rose, stopped the defendant when he
was approximately 100 feet away from his apartment. Rose confirmed
the defendant's bail conditions with him and found that the
defendant was carrying beer. Rose and other officers arrested the
defendant for this bail violation. Rose then told the defendant
that the officers planned to search his residence pursuant to his
bail conditions. The defendant replied with words to the effect
of, "Yeah, whatever." Without objection, one of the officers took
the defendant's apartment key and used it to gain access to his
residence. The ensuing search turned up drugs and drug-related
paraphernalia.
Before us, the defendant castigates the residential
search as unlawful and insists that the discovered contraband
should have been suppressed. This remonstrance ignores the
district court's supportable finding that the defendant consented
to the search. See Gates I, 2008 WL 5382285, at *12. Without a
showing that his consent was unlawfully obtained, the defendant
cannot be heard to complain that the search itself was illegal.
-9-
See Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973); United
States v. Stierhoff,
549 F.3d 19, 23 (1st Cir. 2008).
In all events, the district court took a belt-and-
suspenders approach: it also supportably found that the search was
independently justified by the extant bail conditions. After all,
the defendant had agreed, as part of his bail conditions incident
to the charges of disorderly conduct and resisting arrest, to
submit to searches of his person and residence at any time, even in
the absence of articulable suspicion. We see no reason why we
should not give the plain language of such a bail condition force
and effect. Cf. Samson v. California, 547 U.S. 843, 852-57 (2006)
(holding that a suspicionless search of a parolee did not violate
the Fourth Amendment where the parolee had previously submitted to
a parole condition authorizing such searches); United States v.
Barner,
666 F.3d 79, 81, 84-86 (2d Cir. 2012) (approving
warrantless search when parole condition provided that parolee's
"person, residence and property [were] subject to search and
inspection" (alteration in original)).
B. Speedy Trial.
The defendant assails the district court's refusal to
dismiss the indictment on speedy trial grounds.3
3
In his motion to dismiss, the defendant also alleged a
violation of his constitutional right to a speedy trial. See U.S.
Const. amend. VI. The district court rejected this plaint, see
Gates II, 650 F. Supp. 2d at 88, and the defendant does not renew
it on appeal.
-10-
The STA provides generally that, upon motion, an
indictment must be dismissed if the defendant's trial has not
commenced within 70 days from the latter of the return of the
indictment or the defendant's first appearance before a judicial
officer. 18 U.S.C. § 3161(c)(1). This 70-day limit is not
absolute; the STA contemplates that certain periods of time shall
be excluded. See id. § 3161(h). In this venue, the defendant
complains that several periods of time were improperly excluded
under the STA.
We review excludability determinations for abuse of
discretion. United States v. Vega Molina, 407 F.3d 511, 532 (1st
Cir. 2005). We are mindful, however, that a material error of law
invariably constitutes an abuse of discretion. United States v.
Snyder,
136 F.3d 65, 67 (1st Cir. 1998).
In this case, the parties agree that the speedy trial
clock began to tick on March 5, 2008 — the day after the
defendant's arraignment. The defendant's trial commenced on
September 22, 2009 (some 566 days later). Both sides agree that a
minimum of 41 days was non-excludable. The district court excluded
the rest of the intervening time in a series of orders. The
defendant's claim of error attempts to challenge some of those
orders.
Although the defendant's argument on appeal is sprawling,
the record below frames the legitimate parameters of the debate.
-11-
In his motion to dismiss, the defendant explicitly challenged the
exclusion of only two periods: March 24 to April 11, 2008 (the time
between the filing of the motion to extend the pretrial motions
deadline and the filing of the first suppression motion), and
February 12 to March 25, 2009 (the time between the court's
disposition of the suppression motions and the defendant's first
attorney's motion to withdraw). The district court excluded both
periods by granting defense counsel's motions for extensions of
time.4 Generally speaking, exclusions of this type are permitted
under the STA, which authorizes, inter alia, exclusions of:
Any period of delay resulting from a
continuance granted by any judge on his own
motion or at the request of the defendant or
his counsel or at the request of the attorney
for the Government, if the judge granted such
continuance on the basis of his findings that
the ends of justice served by taking such
action outweigh the best interest of the
public and the defendant in a speedy trial.
No such period of delay resulting from a
continuance granted by the court in accordance
with this paragraph shall be excludable under
this subsection unless the court sets forth,
in the record of the case, either orally or in
writing, its reasons for finding that the ends
of justice served by the granting of such
continuance outweigh the best interests of the
public and the defendant in a speedy trial.
4
With respect to the first period, the district court
excluded the time in two separate orders (the first excluded the
time from March 24 to April 4 and the second excluded the time from
April 4 to April 11).
-12-
18 U.S.C. § 3161(h)(7)(A). In keeping with this provision, the
three challenged exclusion decisions incorporated specific ends of
justice findings.
In support of his motion to dismiss, the defendant
proffered an affidavit stating that he did not receive any timely
advice about his speedy trial rights and had not been asked to
consent to his attorney's requests for the periods of delay. The
district court denied the motion to dismiss, concluding that
defense counsel may waive a defendant's rights under the STA and
that, therefore, the challenged periods were properly excluded.
Gates II, 650 F. Supp. 2d at 84-85.
Before us, the defendant again complains that his
attorney's consent was impuissant because his attorney opted to
seek additional time without first securing his permission. This
complaint hinges on the proposition that a defendant's personal
consent is always required for continuances that entail a waiver of
speedy trial rights. We reject this proposition; a defendant's
lawyer may seek a continuance and the concomitant exclusion of time
for STA purposes without first securing the defendant's personal
consent. We explain briefly.
The plain text of the STA authorizes courts to grant
continuances "at the request of the defendant or his counsel." 18
U.S.C. § 3161(h)(7)(A) (emphasis supplied). We are confident that
this statutory provision says what it means and means what it says.
-13-
So read, the thrust of the provision comports with the well-settled
principle that express consent by counsel is controlling with
respect to scheduling and trial management matters without any
requirement that the defendant personally acquiesce. See New York
v. Hill, 528 U.S. 110, 115 (2000); Taylor v. Illinois,
484 U.S.
400, 417-18 (1988); cf. Gonzalez v. United States,
553 U.S. 242,
250 (2008) (explaining that "[t]o hold that every instance of
waiver requires the personal consent of the client himself or
herself would be impractical"). In such instances, "the defendant
is deemed bound by the acts of his lawyer-agent and is considered
to have notice of all facts, notice of which can be charged upon
the attorney."
Hill, 528 U.S. at 115 (internal quotation marks
omitted). Several courts have applied this principle in the STA
context. See, e.g., United States v. Bryant,
134 F.3d 364 (4th
Cir. 1998) (unpublished table decision) (stating, in STA context,
that the district judge was entitled to conclude that the
defendant's counsel spoke for him); United States v. Fields,
39
F.3d 439, 443 (3d Cir. 1994) (finding fault with defendant's
argument that "he would have us order the dismissal of his
indictment based on continuances that his own attorney sought");
United States v. Troy,
564 F. Supp. 2d 42, 47 (D. Me. 2008)
(noting, in STA context, that "[t]he adversary process could not
function effectively if every tactical decision required client
approval" (internal quotation marks omitted)).
-14-
We agree with these authorities. We hold, therefore,
that in the ordinary course and within the confines of the STA
exclusion provisions, defense counsel has the power to seek an STA
continuance without first informing his client or obtaining his
client's personal consent. See Hill, 528 U.S. at 115 (holding that
attorney's statement, without any showing of client's explicit
consent, could waive speedy trial right under Interstate Agreement
on Detainers).
To be sure, there may be exceptional circumstances in
which an attorney's naked imprimatur can be called into question.
Such circumstances could include, say, a lawyer's intentional foot-
dragging for his own purposes and to his client's detriment. Cf.
United States v. Pringle, 751 F.2d 419, 429 (1st Cir. 1984)
(stating that the STA "is as much aimed at the delay caused by
judicial congestion and mismanagement as it is aimed at the
deliberate stalling of counsel"). Similarly, a defendant's
contemporaneous objection to his lawyer's request for an extension
of time would be a datum for the district court to consider in its
analysis of the ends of justice.
In all events, there are safeguards within the STA
framework that protect against this potential for a miscarriage of
justice. In requiring the district court to make findings that
"the ends of justice [are] served" by granting a continuance, the
STA demands that the court consider "the best interest of the
-15-
public" as well as the defendant's stake in a speedy trial. 18
U.S.C. § 3161(h)(7)(A). To ensure the effectiveness of this
safeguard, the STA limns the factors that a judge must consider in
determining whether to grant a continuance. See id.
§ 3161(h)(7)(B). It also identifies impermissible rationales. See
id. § 3161(h)(7)(C) ("No continuance . . . shall be granted because
of general congestion of the court's calendar, or lack of diligent
preparation or failure to obtain available witnesses on the part of
the attorney for the Government."). In our view, these statutory
limitations on the district court's ability to grant STA
continuances provide a prophylaxis that is adequate to guard
against potential abuses by defense counsel.
With respect to the three exclusion orders challenged
below, we discern no error in the district court's ends of justice
determinations. In connection with the exclusion of the first
block of time, the defendant says that exclusion was improper
because of the prosecution's belated responses to discovery
requests. It is true that in moving to exclude the period from
March 24 to April 11, 2008, defense counsel represented that he
needed more time to review discovery provided by the government.
But the record reflects that the government complied with most of
its discovery obligations within 30 days of the defendant's
arraignment. The fact that defense counsel needed more time does
not suggest, let alone demonstrate, that the government was
-16-
unreasonably tardy in fulfilling its responsibilities. We find no
clear evidence of prosecutorial misconduct and no special
circumstances suggesting that the district court should have looked
behind defense counsel's consent in order to promote the ends of
justice. Cf. id. § 3161(h)(7)(B) (stating that the factors "which
a judge shall consider in determining whether to grant a
continuance" include "[w]hether the failure to grant such a
continuance . . . would deny counsel . . . the reasonable time
necessary for effective preparation").
The defendant's then-counsel offered equally plausible
reasons for excluding the second period of time identified in the
motion to dismiss. The district court considered those reasons and
found them sufficient. See id. § 3161(h)(7)(A). There is nothing
in the record, fairly read, that compels us to find an abuse of
discretion.
The defendant does not go quietly into this bleak night.
He questions some of the reasons offered in support of these and
other exclusions. He says, for example, that untoward delays were
caused, at least in part, by defense counsel's vacation plans,
prosecutorial stalling, and the district court's "languid approach"
to scheduling.
We need not tarry over the attorney's vacation plans.
Defense lawyers are not automatons; they are not expected to work
365 days a year. A reasonable vacation constitutes a plausible
-17-
basis for excluding a relatively brief period of time under the
STA. See, e.g., United States v. Trotman, 406 F. App'x 799, 806
(4th Cir. 2011); see also
Pringle, 751 F.2d at 432 (stating that
the legislative history of the STA "indicates that scheduling
conflicts of either defense or government counsel were intended by
Congress to be legitimate grounds for granting a continuance").
The defendant's other complaints are no more powerful.
We recognize that, in extreme cases, delaying tactics by a
prosecutor or a court's chronic inattention to its docket might be
so rebarbative as to comprise the special circumstances needed to
override defense counsel's waiver of his client's speedy trial
rights and impel the trial court to find that a requested
continuance is at odds with the ends of justice. But we have
perused the record in this case with care and we conclude that
neither the government's conduct nor the district court's
management of its busy calendar was beyond the pale.
In an effort to change the trajectory of the debate, the
defendant tries to widen the field of battle. He challenges for
the first time on appeal the excludability of several additional
time periods. This challenge comes too late. We hold that an
appellant who seeks to contest the exclusion of periods of time not
challenged in the district court has waived his right to challenge
such periods on appeal.
-18-
This conclusion is supported by both statutory text and
relevant precedent. The plain language of the STA provides that
"[f]ailure of the defendant to move for dismissal prior to trial
. . . shall constitute a waiver of the right to dismissal under
[the STA]." 18 U.S.C. § 3162(a)(2). The statute further provides
that "[t]he defendant shall have the burden of proof of supporting
such motion," id., which includes the burden of identifying STA
violations in the district court, see Zedner v. United States,
547
U.S. 489, 502-03 (2006). To avoid a finding of waiver, therefore,
a defendant must raise any potential STA violations before the
district court in a motion to dismiss. Cf. United States v.
Connor,
926 F.2d 81, 84 (1st Cir. 1991) (holding that a defendant
waives the contention that a particular period was not excludable
under the STA where the period post-dates the filing of his motion
to dismiss and he does not renew his motion).
In fashioning this holding, we do not write on a pristine
page. Three other courts of appeals have concluded, as we do, that
exclusions of time not specifically challenged in a motion to
dismiss are deemed waived. See, e.g., United States v. Vallone,
698 F.3d 416, 448 (7th Cir. 2012); United States v. Oberoi,
547
F.3d 436, 458 (2d Cir. 2008), vacated on other grounds,
130 S. Ct.
1878 (2010); United States v. White,
129 F. App'x 197, 201 (6th
Cir. 2005). We ourselves have previously hinted broadly at the
same conclusion. See United States v. Valdivia,
680 F.3d 33, 41-42
-19-
(1st Cir. 2012) (stating that where an appellant seeks to contest
the exclusion of periods of time not challenged below, "there is a
strong basis for finding the argument waived").
The finding of waiver lays to rest the defendant's claims
that periods of time not specifically identified in his motion to
dismiss were improperly excluded. Waived arguments are for the
most part unreviewable, see United States v. Rodriguez, 311 F.3d
435, 437 (1st Cir. 2002); and the waived arguments here fall within
the general rule, not within the long-odds exception to it.
The upshot is that defense counsel proposed, and on his
client's behalf consented to, exclusions of time for STA purposes.
The defendant, through new counsel, subsequently moved to dismiss
the indictment, specifically challenging two (and only two) of
these excluded periods. The district court denied this motion. We
conclude that the district court complied with the STA's exclusion
provisions in granting these contested continuances and, therefore,
appropriately denied the motion to dismiss. The defendant's
challenges to other excluded periods were not raised below and are
waived. Viewed through the prism of these conclusions, the
district court did not err in denying the defendant's motion to
dismiss.
C. Plea Withdrawal.
Approximately two months after pleading guilty but prior
to sentencing, the defendant sought both a withdrawal of his guilty
-20-
plea and a change of counsel. The court appointed new counsel (the
defendant's fifth court-appointed lawyer), who filed an amended
motion for withdrawal of the guilty plea. The court denied the
motion, emphasizing the voluntariness of the plea and the
dubiousness of the defendant's claim of innocence. Gates III, 698
F. Supp. 2d 212. The defendant assigns error to this ruling.
A defendant does not have an absolute right to withdraw
a guilty plea. See United States v. Negrón-Narváez, 403 F.3d 33,
36 (1st Cir. 2005). But a district court may allow withdrawal of
a previously entered guilty plea as long as a "fair and just
reason" for rescinding the plea exists. Fed. R. Crim. P.
11(d)(2)(B); see United States v. Pellerito,
878 F.2d 1535, 1537
(1st Cir. 1989). In appraising such a motion, a court ordinarily
should begin by considering whether the plea, when entered, was
voluntary, intelligent, and informed. See United States v.
McDonald,
121 F.3d 7, 11 (1st Cir. 1997); United States v.
Gonzalez-Vazquez,
34 F.3d 19, 23 (1st Cir. 1994). From that
starting point, the inquiry customarily should expand to factors
such as the strength of the reasons proffered by the defendant as
a basis for withdrawing his plea, the timing of the motion, and the
force of any assertion of legal innocence. See United States v.
Doyle,
981 F.2d 591, 594 (1st Cir. 1992). "If the combined weight
of these factors tilts in the defendant's favor," then the court
-21-
should consider "the quantum of prejudice, if any, that will inure
to the government" should the motion be granted. Id.
"[O]ther than for errors of law, we will disturb the
trial judge's refusal to allow plea withdrawals only for
demonstrable abuse of discretion."
Pellerito, 878 F.2d at 1538.
In the plea-withdrawal context, as elsewhere, questions of law are
subject to de novo review. United States v. Padilla-Galarza,
351
F.3d 594, 597 & n.3 (1st Cir. 2003). Findings of fact, however,
can only be set aside if they are clearly erroneous.
Id.
The defendant suggests that his guilty plea was neither
voluntary nor knowing because he made it based on his counsel's
false assurances about sentencing outcomes. This suggestion rests
on his insistence that his counsel assured him that pleading guilty
would position him favorably to receive credit for his acceptance
of responsibility, see USSG §3E1.1, and a term of imprisonment at
or near the mandatory minimum, see 21 U.S.C. § 841(b)(1)(A).
Pertinently, defense counsel acknowledged that he had
explained to the defendant that one "benefit of a plea is [that] we
will have in play the issue of acceptance of responsibility, and
that will make a difference in terms of where the advisory
guidelines intersect with the statutory minimum." Defense counsel
elaborated on this point, noting that the defendant might be
"preclude[d]" from receiving any credit for acceptance of
responsibility because he did not plead guilty until mid-trial, and
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that the issue of acceptance of responsibility would be "in
contention at sentencing." These statements were accurate. See,
e.g., USSG §3E1.1, comment. (n.2). They did not amount to false
assurances, especially in light of the fact that the defendant
confirmed at the change-of-plea hearing that no one made any
promises to him regarding sentencing.
The remainder of the change-of-plea transcript is equally
inhospitable to the defendant's revisionist account of history.
The transcript demonstrates that the district court made a thorough
inquiry into the voluntary and knowing character of the guilty
plea, ensuring that the defendant understood both his right to
proceed with trial and the possible consequences of a guilty plea.
The court made transparently clear that the plea entailed no
guaranteed sentencing outcome.
This brings us to the defendant's claim of innocence and
his assertion that the district court acted arbitrarily in
impugning it. We discern no impropriety. Merely voicing a claim
of innocence has no weight in the plea-withdrawal calculus; to be
given weight, the claim must be credible. See United States v.
Sanchez-Barreto, 93 F.3d 17, 24 (1st Cir. 1996).
In this instance, the defendant's claim of innocence was
not credible; it contradicted the change-of-plea colloquy in which
he acknowledged that he committed the charged offenses. The
defendant listened to the prosecutor's opening statement and the
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testimony of the government's initial witnesses, heard the
prosecutor vouch for that version of the case, accepted the
accuracy of that version, and admitted his culpability.
A defendant is normally bound by the representations that
he himself makes in open court at the time of his plea. See, e.g.,
Padilla-Galarza, 351 F.3d at 598; United States v. Butt,
731 F.2d
75, 80 (1st Cir. 1984). As we have said, such statements "are more
likely to be reliable than later versions prompted by second
thoughts."
Padilla-Galarza, 351 F.3d at 598. In this case, the
record contains nothing that would prompt us to depart from this
salutary principle.5
The short of it is that the defendant's arguments for
withdrawing his plea were weak and his claim of innocence was
unpersuasive. It follows that the district court acted well within
the ambit of its discretion in concluding that the defendant had
not shown a fair and just reason for withdrawing his guilty plea.
D. Sentencing.
The defendant's remaining claims of error implicate his
sentence. In addressing these claims, we review the district
court's interpretation and application of the sentencing guidelines
de novo. See United States v. Parrilla Román, 485 F.3d 185, 190
5
Indeed, the defendant's claim of innocence is undermined by
other record evidence. It seems to be no accident that the
defendant chose to plead guilty shortly after the highly
incriminating trial testimony of his alleged coconspirator (Brandon
Johnson).
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(1st Cir. 2007). Subsidiary findings of fact, however, engender
clear-error review. Id. If we are satisfied that no procedural
irregularities occurred, we appraise the sentence imposed for abuse
of discretion — a standard that is tantamount to review for
reasonableness. Gall v. United States,
552 U.S. 38, 46 (2007).
The defendant posits that his due process rights were
violated because the district court used unreliable and
unsubstantiated information in constructing his guideline
sentencing range (GSR). In this regard, he trains his sights on
the court's reliance on information contained in the proffer of one
of the government's cooperating witnesses, Kristy Nadeau. This
untrustworthy information, he says, unfairly influenced the court's
drug-quantity finding (and, thus, the court's calculation of the
GSR).
The facts are straightforward. Nadeau's proffer
vouchsafed that $16,100 seized from her apartment constituted drug
proceeds that belonged to the defendant. The district court
credited this statement, interpolated money into drugs, and used
the resultant figure in deducing the total drug quantity
attributable to the defendant.
We descry no clear error. The usual rules of evidence do
not apply in sentencing proceedings. See United States v. Zapata,
589 F.3d 475, 485 (1st Cir. 2009). The district court may base
sentencing determinations on any evidence that it reasonably deems
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to be reliable. See United States v. Cintrón-Echautegui, 604 F.3d
1, 6 (1st Cir. 2010).
Here, Nadeau's proffer was specific. Nadeau herself was
present at the disposition hearing, and the defendant had an
opportunity (which he declined) to question her. The sentencing
judge, who had lived with the case for more than two years and had
presided over the aborted trial, had a bird's-eye view of how the
conspiracy operated. Thus, he was in an enviable position to gauge
the veracity of Nadeau's proffer. In these circumstances, no clear
error attended the district court's conclusion that the proffer was
trustworthy.
Once we are satisfied on this point, the district court's
calculation of the GSR appears to be bulletproof. The court
warrantably found a total of 414 grams of crack cocaine to be
attributable to the defendant, yielding a base offense level of 32.
It then incorporated two enhancements, totaling six levels, for the
defendant's leadership role, see USSG §3B1.1(a), and his
obstruction of justice, see id. §3C1.1. The court eschewed a
downward adjustment for acceptance of responsibility, plausibly
reasoning that the defendant's attempt to portray himself as
innocent during the plea-withdrawal proceeding showed that he had
not genuinely accepted responsibility for his criminal conduct.
Each of these adjustments is well-supported by the record.
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In the absence of any procedural error, we are left with
the question of the substantive reasonableness of the sentence
imposed. Assuming favorably to the defendant that his amorphous
due process argument can be read to encompass such a challenge,
that challenge fails.
The sentencing guidelines are advisory, see United States
v. Booker, 543 U.S. 220, 245 (2005), and the GSR is not controlling
on the question of the substantive reasonableness of a particular
sentence, see United States v. Jiménez-Beltre,
440 F.3d 514, 517-18
(1st Cir. 2006) (en banc). This does not mean, however, that the
GSR is an irrelevancy: it informs an appellate court's view of the
reasonableness of a sentence. See United States v. Madera-Ortiz,
637 F.3d 26, 30 (1st Cir. 2011). We start there.
Pairing the defendant's total offense level (38) with his
criminal history category (III) produces a properly calculated GSR
of 292-365 months. The district court made this calculation and,
varying downward from it, imposed an incarcerative sentence of 240
months. The sentencing court noted that the defendant "has a
serious criminal history which involves violence"; that he "has not
been deterred by previous involvement with the law"; and that he
functioned as "the ring leader" of "a very important drug
conspiracy." Nevertheless, the "very substantial" GSR was, in the
court's view, "greater than necessary to reflect the seriousness of
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this offense and this defendant's involvement in it and his past
criminal activities."
The record makes manifest that the court examined the
totality of the circumstances, weighed the relevant factors, see 18
U.S.C. § 3553(a), and fashioned a sentence shaped to fit the
contours of the crime of conviction. The resultant sentence fell
52 months below the nadir of the GSR. When the district court
articulates a plausible rationale for the sentence imposed and
reaches a sensible result, that result, virtually by definition,
falls within the universe of reasonable sentencing outcomes. See
United States v. Walker, 665 F.3d 212, 234 (1st Cir. 2011);
Jiménez-Beltre, 440 F.3d at 519. So it is here.
III. CONCLUSION
We need go no further. It is regrettable that this case
took so long to reach a conclusion. But criminal cases cannot be
expected to proceed with metronomic precision, and the progress of
this case was slowed measurably by the defendant's desire, time and
again, to secure the services of replacement counsel. Given the
pitfalls that permeated the landscape, we think that the district
court did an admirable job in getting the case to trial within a
reasonable time. We conclude both that the defendant was justly
convicted in a proceeding free from reversible error and that he
was fairly sentenced.
Affirmed.
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