[NOT FOR PUBLICATION - NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
UNITED STATES OF AMERICA,
JORGE J. SOLANO-MORETA,
a/k/a WES, a/k/a CABALLO, a/k/a PEDRO,
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Torruella, Chief Judge, Hall, Senior Circuit Judge, and Lynch, Circuit Judge.
Rafael Anglada-LÂ¢pez for appellant.
Miguel A. Pereira, Assistant U.S. Attorney, with whom Guillermo Gil, U.S. Attorney, was on brief, for appellee.
December 1, 1998 LYNCH, Circuit Judge. Jorge J. Solano-Moreta contends, among other things, that the district court erred in denying his requests to withdraw his guilty plea. We affirm his conviction.
I On June 7, 1995, thirty-seven defendants, including Solano-Moreta, were indicted in connection with a violent drug conspiracy. On May 29, 1996, the day that he was scheduled to go to trial, Solano-Moreta, the alleged leader of the organization, pled guilty to engaging in a continuing criminal enterprise in violation of 21 U.S.C. 848(a) and (b) and to carrying firearms in relation to a drug trafficking crime in violation of 18 U.S.C. 924(c)(1) and (2).
Ultimately, only eight of the defendants went to trial. On August 8, 1996, the jury convicted three of these defendants and acquitted five.
Solano-Moreta filed a motion to withdraw his guilty plea in early December 1996, asserting that an agreement outside the bounds of the plea agreement had induced his plea and that his former counsel had not moved to challenge audiotapes or explained the plea agreement fully. The court held evidentiary hearings on December 19 and December 27, 1996 and denied the motion on January 23, 1997.
When Solano-Moreta appeared for sentencing, he again informed the court that he wished to withdraw his plea; with the assistance of new counsel, another motion to that effect was filed on May 21, 1997. In addition to requesting reconsideration of the court's previous rulings, this motion added further claims of involuntariness, claimed that previous counsel had an unexplored conflict of interest, and asserted that the indictment was defective. On December 10, 1997, after yet another evidentiary hearing, the motion was denied.
Pursuant to the terms of a Federal Rule of Criminal Procedure 11(e)(1)(C) plea agreement, which the court accepted at sentencing, Solano-Moreta was sentenced to 540 months imprisonment.
II Solano-Moreta focuses his arguments on appeal on the district court's denial of his plea withdrawal motions. In considering whether a defendant has made an affirmative showing of a "fair and just reason" for withdrawal of a guilty plea before sentencing, Fed. R. Crim. P. 32(e), the district court must consider all of the circumstances, focusing particularly on the plausibility of the reasons prompting the change of plea, the timing of the defendant's motion, the existence or nonexistence of an assertion of innocence, and whether the 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. Sanchez-Barreto, 93 F.3d 17, 23 (1st Cir. 1996), cert. denied, 117 S. Ct. 711 (1997); see also United States v. Pellerito, 878 F.2d 1535, 1537 (1st Cir. 1989). If these factors tilt in favor of the defendant, the court must also assess the prejudice to the government. SeeUnited States v. Parrilla-Tirado, 22 F.3d 368, 371 (1st Cir. 1994).
A district court's ruling on such a motion is reviewed only for "demonstrable abuse of discretion." Sanchez-Barreto, 93 F.3d at 23. In addition, "[t]he trial court's subsidiary factfinding in connection with plea-withdrawal motions can be set aside only for clear error." Pellerito, 878 F.2d at 1538.
As a preliminary matter, although Solano-Moreta makes numerous allegations that ineffective assistance by two of his three previous counsel prevented him from withdrawing his plea or from going to trial in the first instance, we decline to address the ineffective assistance claim on direct appeal. The district court ruled on some of Solano-Moreta's specific claims of ineffectiveness and made factual findings relevant to the performance of counsel in the course of deciding the motions for withdrawal of the guilty pleas. Nevertheless, we conclude after a careful review that the record on the various ineffective assistance claims is not fully developed. (We note, as well, that Solano-Moreta has not aided matters by presenting several of his arguments on this topic to this Court in a cursory manner.) Accordingly, we decline to address the ineffective assistance claims. See United States v. Tuesta-Toro, 29 F.3d 771, 776 (1st Cir. 1994) ("Ordinarily, a collateral proceeding . . . is the proper forum for fact-bound ineffective assistance claims.").
Putting these claims aside, then, we find that the district court did not abuse its discretion in denying Solano- Moreta's motions to withdraw his guilty plea. The court determined in two well-reasoned written opinions that all of the relevant factors weighed against permitting withdrawal. The court found that Solano-Moreta's plea was fully voluntary and that his reasons for withdrawal were implausible. The court specifically held that no outside agreement binding on the government existed (and that, even if Solano-Moreta's counsel told him otherwise, any reliance on those statements was not reasonable); that there was no support in the record for his claim that the indictment was defective; that he understood the plea agreement; and that there was no showing that his competence to plead was affected by prescription medication or any physical or psychological condition. The court also found that Solano-Moreta's requests to counsel to move for withdrawal immediately after his guilty plea did not somehow cure his unreasonable delay in filing his motion, since, even if he "considered [moving for withdrawal] . . . prior to December 1996, it was always disregarded [as] he explored a more convenient path or legal strategy." Finally, the court declined to credit any claim of innocence based on its observation that Solano- Moreta had perjured himself.
Solano-Moreta repeats here many of the same arguments he advanced to the district court, but he provides no basis for this court to question the district court's factual findings or its weighing of the factors. "Confronted with an attempt at plea retraction, the trial judge must make an idiocratic, particularistic, factbound assessment -- an assessment which is facilitated because the judge has overseen pretrial proceedings, conducted the Rule 11 inquiries, accepted the original guilty plea, and heard at first hand the reasons bearing on its withdrawal." Pellerito, 878 F.2d at 1538. Many of the findings at issue here are based on the district court's observation of the demeanor of the defendant and the credibility of various witnesses. In this case, we will not second-guess these first- hand observations, especially since the district court's consideration of Solano-Moreta's claims was particularly careful and thorough.
Finally, we also reject Solano-Moreta's challenge to the district court's acceptance of his plea agreement at sentencing. "Before accepting a plea agreement that contains a specific sentence under Fed. R. Crim. P. 11(e)(1)(C), a sentencing court is required to satisfy itself either that: 'the agreed sentence is within the applicable guideline range; or (2) the agreed sentence departs from the applicable guideline range for justifiable reasons.'" United States v. Carrozza, 4 F.3d 70, 87 (1st Cir. 1993) (quoting U.S.S.G. 6B1.2(c)).
Ignoring the second of the two options provided by 6B1.2(c) of the guidelines, Solano-Moreta rests his challenge on the bare assertion that the stipulated sentence exceeded the guideline range set forth in the pre-sentence report. Accordingly, he has made no showing that the district court erred in accepting the plea agreement and imposing the 540-month sentence that he acceded to when he signed it. Nor has he made any showing that the court erred in refusing to "mitigat[e]" his sentence.
We have considered all of defendant's arguments properly presented on direct appeal and find them without merit.
Defendant's conviction is affirmed.
This document cites
- U.S. Code - Title 18: Crimes and Criminal Procedure - 18 USC 924 - Sec. 924. Penalties
- US Code - Title 21: Food and Drugs - 21 USC 848 - Sec. 848. Continuing criminal enterprise
- U.S. Court of Appeals for the First Circuit - United States of America, Appellee, v. Luis E. Parrilla-Tirado, Defendant, Appellant., 22 F.3d 368 (1st Cir. 1994)
- U.S. Court of Appeals for the First Circuit - United States of America, Plaintiff, Appellee, v. Hector H. Tuesta-Toro, Defendant, Appellant., 29 F.3d 771 (1st Cir. 1994)
- U.S. Court of Appeals for the First Circuit - United States of America, Appellee, v. Giuseppe Pellerito, A/K/a Joseph El Italiano, Defendant, Appellant. United States of America, Appellee, v. Hector Rivera-Martinez, A/K/a El Men., 878 F.2d 1535 (1st Cir. 1989)
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