July 20, 1993         [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                        

No. 92-1835

                        UNITED STATES,

                          Appellee,

                              v.

                      PETER MORAN HENRY,

                    Defendant, Appellant.

                                        

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

        [Hon. Jaime Pieras, Jr., U.S. District Judge]
                                                    

                                        

                            Before

                    Boudin, Circuit Judge,
                                         
                Bownes, Senior Circuit Judge,
                                            
                  and Stahl, Circuit Judge.
                                          

                                        

   Jose R. Gaztambide on brief for appellant.
                     
   Charles  E. Fitzwilliam,  United  States Attorney,  Jeanette
                                                               
Mercado-Rios, Assistant  U.S. Attorney,  and  Jose A.  Quiles  on
                                                           
brief for appellee.

                                        

                                        

          PER  CURIAM.  Defendant-appellant Peter Moran Henry
                     

appeals the denial of a motion to withdraw his guilty plea in

the United States  District Court for the  District of Puerto

Rico.    Finding no  error in  the  decision of  the district

court, we affirm.

                              I

                          Background
                                    

          Henry   took   his   girlfriend,   Hattie   "Penny"

Middlebrook, and  a friend of hers,  Ruby Christine Marshall,

on  a vacation to St.  Lucia in September,  1991.  Upon their

return to  the  airport in  San  Juan, Puerto  Rico,  Customs

Inspector Herdmann observed  Middlebrook and Marshall walking

in  a suspiciously  rigid  manner,  apparently following  the

directions  provided by  the physical  gestures of  a nervous

Henry.   When the Inspector  questioned the  women, he  found

that  Middlebrook was carrying  the customs  declarations for

three travelers.    When he  asked who  their male  traveling

companion was,  they identified Mr. Henry.   Herdmann decided

that  further investigation  was required  when  he overheard

Henry tell another Inspector that he did not know Middlebrook

and  Marshall.   A  search  revealed  packages, containing  a

substance which was later established to be cocaine, taped to

the bodies  of both women.   No drugs  were found  in Henry's

possession.

                             -2-
                              2

          On October 9, 1991, a Federal Grand Jury returned a

true bill  against  Henry and  codefendants  Middlebrook  and

Marshall for violations  of 21 U.S.C.     841(a)(1), 952, 955

and 18  U.S.C.   2.  The  three count indictment charged that

on  or  about  September  30, 1991,  Henry,  Middlebrook  and

Marshall,  aiding and  abetting  each  other, did  knowingly,

intentionally   and   unlawfully  possess   with   intent  to

distribute, and did import into the customs  territory of the

United States from St.  Lucia, approximately 2.3 kilograms of

cocaine, which cocaine  was not part  of the official  supply

list nor part of the cargo  manifest of the airline flight on

which the codefendants had travelled from St. Lucia to Puerto

Rico.   Henry pled not  guilty at his  arraignment on October

24, 1991.

          On December 18, 1991, the first day of Henry's jury

trial,  testimony was received  from Inspector  Herdmann (who

testified to the events in  the airport recounted above)  and

Middlebrook.  Middlebrook testified that Henry left the motel

where the three were staying in St. Lucia each morning before

she awoke, and that he  was gone for most of those days.  She

further testified that,  on the  way to the  airport for  the

departure  flight, Henry stopped at  a man's house.   He went

inside while  Middlebrook and Marshall waited  outside on the

porch.  When  he emerged,  he told his  companions that  they

would be  taking some drugs back  to the United States.   The

                             -3-
                              3

women  entered  the house  where  drugs were  taped  to their

bodies  and they were  outfitted with  loose-fitting dresses.

The  drugs  were  secured  between  Middlebrook's  legs  with

masking tape  and a  girdle  which she  identified at  trial.

Middlebrook testified  that she received instructions to walk

with her legs pressed together so that attention would not be

drawn  to her walk.   The court  adjourned for the  day after

Middlebrook described her encounter with Inspector Herdmann.

          On the  second  day of  trial,  before  Middlebrook

could resume her testimony, Henry changed  his plea to guilty

on  all  three counts.   The  court  accepted his  plea after

engaging in a  colloquy in  which Henry:   (1) denied  having

taken  drugs, medicine  or  alcohol in  the past  twenty-four

hours; (2)  denied being  under the  care of  a doctor  for a

mental  or  emotional condition;  (3)  affirmed  that he  was

satisfied  with his  attorney's representation;  (4) declared

that he  considered himself guilty; (5)  acknowledged that he

understood that by pleading  guilty he would be found  guilty

without  trial;  (6)  confessed  to  asking  Middlebrook  and

Marshall  to carry the  drugs; (7) demonstrated  that he knew

the maximum  sentence and fine  he faced as  a result of  his

plea; (8) denied that he was being forced to change his plea;

(9)  stated that he was  pleading guilty for  no other reason

than the fact that he  was guilty; and (10) declared  that he

had consulted with his  attorney and understood the questions

                             -4-
                              4

he  was being  asked  by the  court.   The judge  ordered the

preparation   of  a  presentence   investigation  report  and

scheduled sentencing for March 19, 1992.

          On  March 3, 1992, Henry  filed a motion  pro se to
                                                          

withdraw his guilty plea.  He claimed that he had been forced

to plead guilty by his lawyer and that he was confused at the

time he entered the  plea because he was under  the influence

of a variety of  medications.  The court assigned Henry a new

lawyer and  rescheduled the  sentencing hearing for  June 24,

1992.   On May 13,  1992, Henry, with  the assistance of  new

counsel,  moved  to withdraw  his  plea  on  the ground  that

letters  he  had  received from  his  girlfriend, codefendant

Middlebrook,  proved that  she had  committed perjury  at the

trial.1    At  the  sentencing hearing,  the  district  court

                    

1.   The  letters,  postmarked January  27,  1992,  and dated
December  29, 1991,  January 1,  1992 and  January  13, 1992,
included the following statements:
          Peter  I'm  so  very  sorry   about  what
          happened.   I  didn't  know that  I'll be
          talking  to  the United  States Attorney.
          My  lawyer  didn't  say  anything  to  me
          before  we arrived  in  Puerto  Rico  [to
          testify  at the  trial].    I  have  been
          thinking  about  what  happened  and  the
          things that I said  I was so scare[d] and
          I'm feeling so bad about it . . . .

          I can't  help but  think  that you  don't
          want to talk to me because of what I said
          and you  know that's  not true.   But you
          know that I was scare[d] and I don't want
          to go  back to that  place.   But if  you
          don't  want to  talk to  me I'll  try and
          understand.

                             -5-
                              5

denied  Henry's withdrawal  motion,  and sentenced  him to  a

seventy-month term of imprisonment, followed by four years of

supervised release.

                    

The letters also reveal  that Middlebrook believed herself to
be pregnant with Henry's child.

                             -6-
                              6

                              II

                           Analysis
                                   

          It  is well  established  that a  defendant, having

chosen  to  plead  guilty,  possesses no  absolute  right  to

withdraw his or  her plea.  United States v. Tilley, 964 F.2d
                                                   

66, 72 (1st  Cir. 1992);  United States v.  Austin, 948  F.2d
                                                  

783, 786  (1st Cir.  1991); United  States v. Pellerito,  878
                                                       

F.2d  1535, 1537 (1st  Cir. 1989); United  States v. Buckley,
                                                            

847 F.2d 991,  998 (1st  Cir. 1988), cert.  denied, 488  U.S.
                                                  

1015 (1989); United States  v. Ramos, 810 F.2d 308,  311 (1st
                                    

Cir. 1987).   Where a motion to withdraw is  brought prior to

sentencing,  as was  done in  this case,  the district  court

should allow it only if there is a "fair and just reason" for

doing so.   Fed. R. Crim.  P. 32(d); United States  v. Doyle,
                                                            

981 F.2d 591,  594 (1st Cir.  1992); Tilley, 964 F.2d  at 72;
                                           

Austin, 948 F.2d  at 786;  Buckley, 847 F.2d  at 998;  United
                                                             

States v. Kobrosky, 711 F.2d 449, 454 (1st Cir. 1983).
                  

          This court has held that the following factors must

be evaluated in deciding whether a "fair and just reason" has

been offered in support of a withdrawal motion:

          (1) the  timing of defendant's  change of
          heart; (2) the force and  plausibility of
          the reason; (3) whether the defendant has
          asserted his legal innocence; (4) whether
          the  parties had reached  (or breached) a
          plea agreement; and (5) most importantly,
          whether the defendant's  guilty plea  can
          still    be   regarded    as   voluntary,
          intelligent, and  otherwise in conformity
          with  Rule  11 of  the  Federal  Rules of

                             -7-
                              7

          Criminal  Procedure  in   light  of   the
          proffered   reason   and  the   disclosed
          circumstances.

Pellerito, 878 F.2d  at 1537 (citations omitted).   See also,
                                                            

Doyle,  981  F.2d at  594;  Tilley, 964  F.2d  at 72.   After
                                  

performing this analysis, "[i]f  the combined weight of these

factors  tilts in the defendant's favor,  then the court must

also assess the quantum of prejudice, if any, that will inure

to the government."  Doyle,  981 F.2d at 594.  We  review the
                          

denial  of a motion  to withdraw a  guilty plea  for abuse of

discretion.  Id.; Tilley, 964 F.2d at 72; Pellerito, 878 F.2d
                                                   

at 1538; Kobrosky, 711 F.2d at 454.
                 

     A.   Timing
                

          As this court recently stated in Doyle,
                                                

          [b]ecause  the  timing  of a  defendant's
          attempted   plea  withdrawal   is  highly
          probative  of  motive, close  scrutiny of
          the    chronology    is   important    in
          adjudicating  whether retraction  is fair
          and just.   While an immediate  change of
                                                   
          heart may well lend considerable force to
                                                   
          a   plea   withdrawal  request,   a  long
                                                   
          interval between the plea and the request
                                                   
          often weakens any claim that the plea was
                                                   
          entered  in  confusion  or   under  false
                                                   
          pretenses.
                   

Doyle,  981 F.2d at 595  (emphasis added).   On appeal, Henry
     

claims  that his change of  heart occurred on  March 3, 1992,

after receiving what he claims to be exculpatory letters from

his girlfriend,  and codefendant, Middlebrook.   In an effort

to  put  the best  light on  his  case, he  claims  that this

                             -8-
                              8

happened  over ninety  days  prior to  the actual  sentencing

hearing held on June 24, 1992.

          We see the facts somewhat differently.  Henry first

attempted  to  change his  plea  seventy-five  days after  he

entered the guilty plea at trial, and only sixteen days prior

to the  originally scheduled sentencing hearing.2   Appellant

made no  mention  of  the letters  from  Middlebrook  in  his

motion.  Rather, he  claimed that he was forced by his lawyer

to  plead guilty  and  that he  was  under the  influence  of

prescription  drugs at the time  he entered the  plea.  Henry

did not seize on the Middlebrook  letters as a reason for his

change of heart until his May 13, 1992 motion.

          It was  reasonable for the district  court to infer

from the  seventy-five day  delay between  appellant's guilty

plea  and his  withdrawal  motion, and  the proximity  of his

withdrawal request to his scheduled sentencing  hearing, that

Henry  did not experience the kind of "swift change of heart"

that  would indicate  that  the guilty  plea  was entered  in

"haste and confusion."    Ramos,  810 F.2d at  312.  As  this
                               

court  noted in affirming  the denial of  a withdrawal motion

filed eight  weeks after the  original plea was  accepted, "a

long delay between the plea and the motion to revoke belies a

claim  that the plea was  entered in haste  and confusion and

                    

2.   The date of the  actual sentencing hearing is irrelevant
to our evaluation of this factor.

                             -9-
                              9

requires compelling reasons to support it."  United States v.
                                                          

Crosby,  714 F.2d  185, 192  (1st  Cir. 1983)  (citing United
                                                             

States  v.  Barker, 514  F.2d  208,  222 (D.C.  Cir.),  cert.
                                                             

denied, 421 U.S.  1013 (1975)), cert.  denied, 464 U.S.  1045
                                             

(1984).   Appellant has offered  no explanation for  the long

delay before his  first motion to withdraw  his plea.  It  is

clear that receipt  of the Middlebrook  letters were not  the

proximate  cause of his  decision to change  his plea because

those letters were not mentioned in his March, 1992 motion.

     B.   Force and Plausibility of the Proffered Reasons
                                                         

          At  the June  24, 1992  hearing, appellant  and his

counsel offered several reasons  in support of his withdrawal

motion:   the  Middlebrook letters  showed that  she perjured

herself at  his trial; his consumption  of prescription drugs

at the time of his trial  made him confused; he was pushed by

his  lawyer  to plead  guilty;  and,  he  was  in  "emotional

distress"  at the time  of his  plea because  Middlebrook was

pregnant with his child.   The district court considered  the

force and plausibility of these reasons, and found them to be

inadequate to support the withdrawal motion.

          The court "scrutinized" the  content of the letters

and stated that  it did  "not see anything  there that  would

affect the plea of guilty . . . entered in December of 1991."

The  court further  stated  that it  did  "not find  them  to

suggest  any instance  of perjury."     On  appeal, appellant

                             -10-
                              10

merely asserts that the letters should have been presented to

a  jury  to  determine  their  force  and  credibility.    We

disagree.   The district  court has  the discretion  to grant

plea withdrawal motions, and  it is therefore properly within

the province  of the district  court to conduct  the required

five-part inquiry,  including an evaluation of  the force and

plausibility of the reasons proffered for the change of plea.

We  have read the Middlebrook letters and cannot say that the

district court's finding was clearly erroneous, especially in

light  of  the fact  that  the same  court  heard Middlebrook

testify at  trial.  While the  letters may tend to  show that

Middlebrook regretted the role  she played in her boyfriend's

incarceration, it is not self-evident that the letters either

constitute an  admission of perjury or  provide evidence that

perjury was committed.

          The  court rejected appellant's contention that his

plea  at   trial  was   influenced  by  his   consumption  of

prescription medicines.  At the sentencing hearing, the court

noted  that Henry  had been  asked at  the time  of  his plea

whether he had taken  drugs, medicine or alcohol in  the past

twenty-four hours, and that the appellant had answered in the

negative.  Later in  the sentencing hearing, Henry's counsel3

agreed  that the  trial  court had  properly determined  that

                    

3.   The attorney who represented appellant at the sentencing
hearing replaced Henry's trial counsel.  Replacement  counsel
also represented Henry on appeal.

                             -11-
                              11

appellant was not under the influence  of medications when he

changed his plea to guilty.

          The court found that appellant's trial attorney had

not coerced  him into  pleading  guilty.   Indeed, the  court

stated that his lawyer's advice was

          proper and sound.  And it was looking for
          the  welfare of  this  defendant.   And I
          don't think he induced the defendant into
          doing anything but  to tell the defendant
          the truth  and  that the  defendant  took
          this  decision upon  his  own  free  will
          because he  was  present.   He heard  two
          days  of  testimony of  witnesses against
          him.
          . . . .
          Having observed Attorney  Garcia come  in
          this case and the circumstances which led
          to the defendant's plea[] of guilty.  The
          Court  is  disincline[d]  to accept  your
          assertions.
             Contrary to that  I believe Mr. Garcia
          gave you good advice.

Appellant does  not contest this  finding on  appeal, and  we

find  nothing in  the record  to upset  the  district court's

findings.

          Appellant  did not  raise his  "emotional distress"

theory on appeal. 

     C.   Legal Innocence
                         

          At no time has appellant directly stated that he is

legally  innocent of the charges  to which he  pled guilty on

December 19, 1991.  On that date, during the Rule 11 hearing,

appellant  said that  he  asked Middlebrook  and Marshall  to

carry the drugs, and stated:

                             -12-
                              12

          But I'm taking the blame  because I asked
          them and I had no business to ask them to
          take drugs.  We didn't go to St. Lucia to
          get drugs.   That's not what we go to St.
          Lucia  for.   But  they were  taking  the
          drugs and when we  go to Puerto Rico they
          got busted.  They  had drugs and I didn't
          have nothing and I feel guilty and I feel
          sorry because I knew what I asked them to
          do  was against  the  law.   So what  I'm
          asking the Court today,  I am asking you,
          Judge,  if  I  could  get  some  type  of
          leniency, maybe 42  months or 36  months,
          or I am not  going to put no time,  but a
          time to be in jail  for the crime that  I
          help committed [sic].4

Appellant clearly  acknowledged that  he felt guilty  for his

role  in aiding and abetting the  importation of cocaine into

the United States.  On appeal, Henry merely claims that he is

legally innocent because "he had not carried drugs nor forced

anyone  to  bring  drugs  into  the  United  States."    That

assertion  is an  insufficient expression of  legal innocence

because  he did not assert  his innocence of  the crimes with

which he was charged.  As  we noted in Doyle, "the absence of
                                            

a claim of  innocence weighs  in favor of  allowing a  guilty

plea to stand."  Doyle, 981 F.2d at 596.
                      

     D.   Breach of Plea Agreement
                                  

          Because there  never was a  plea agreement  between

the appellant and the government, this factor bears no weight

                    

4.   Although  the  record, on  appeal,  does  not include  a
transcript  of  the  trial  proceedings,  including the  plea
colloquy, a  copy  of  the  transcript was  appended  to  the
appellant's brief,  and the  government quoted parts  of this
passage in its brief.

                             -13-
                              13

in  our calculus.  Henry contends that the district court was

confused,  and thought that there  had, in fact,  been a plea

agreement in this case.  Our  review of the transcript of the

sentencing  hearing  indicates that  the  court  had a  clear

understanding of  the situation.   The court cited  the five-

factor test outlined above  and endorsed in Tilley.   When it
                                                  

reached this fourth factor the court stated:  "Four, when the

parties have reached or  breached a plea agreement.   Well, I

guess if he withdraw[s]  his plea now I guess  he's breaching

his plea agreement.   Although  that's not  what this  refers

to."  By stating "that's not what this refers to," and moving

on  to the fifth factor, the court recognized that the breach

of a plea  agreement between the  government and a  defendant

contemplated  by  this  factor  was not  implicated  in  this

case.5

     E.   Voluntariness
                       

          The  fifth  factor  which  must  be  considered  in

evaluating the strength of  appellant's motion to withdraw is

whether, "in  light of  the defendant's proffered  reason and

any newly  disclosed  facts, the  plea  may still  be  deemed

voluntary and intelligent."   Doyle, 981 F.2d  at 596 (citing
                                   

                    

5.   We  note that there were  times in the  hearing when the
court seems to have applied the Tilley factors to appellant's
                                      
change of  plea at  trial, rather  than to  the circumstances
surrounding his  subsequent  efforts to  withdraw his  guilty
plea.   Notwithstanding this apparent confusion,  a review of
the entire  record supports the court's  ultimate decision to
deny appellant's motion.

                             -14-
                              14

United  States  v. Austin,  948  F.2d 783,  786-87  (1st Cir.
                         

1991); United States  v. Allard, 926 F.2d 1237,  1245-47 (1st
                               

Cir.  1991)).     Appellant  contends  on   appeal  that  the

transcript  of his plea colloquy  at trial shows  that he was

indecisive about  his plea,  and that  the hearing  was "both

defective and incomplete."  We disagree.  The  district court

complied fully with the requirements of Fed. R. Crim. P. 11.

          Appellant   initially    resisted   accepting   the

government's  version of the facts of the case.  When offered

the opportunity to explain  with what facts he  disagreed, he

stated

             I  didn't agree  because  both of  the
          ladies    one lady  I'm in love  with and
          the   other  lady,  they  old  enough  to
          understand that the drugs is not legal to
          carry  in the  United States.   All  they
          have  to tell  me  is that  they are  not
          going to  carry it.  There  was no force,
          no  push.   I  asked them  not one  time.
          They  sleep on it  Sunday night.   Monday
          morning I  asked them the  same question,
          and it was agreed  that they would do it,
          without no force.
             So  I figure that I'm guilty by asking
          them to carry the cocaine,  but they also
          have  to  hold  their  responsibility  to
          carry it because I didn't put no force on
          them to carry these  drugs when they know
          the drugs is  not legal to carry.  I only
          asked  them, and  the  word  was said  in
          front of them when  the guy front we with
          it.  We  was sitting at  the table.   All
          they have  to say,  "I'm not coming  down
          for this, I'm not going to do this."
             So I figure like they should hold some
          type  of  responsibility  to   carry  the
          drugs, if the state attorney  didn't make
          a deal  with them that they  going to get
          less time.

                             -15-
                              15

This explanation  reveals that, although he  did dispute some

of  the details of  the government's case,  appellant did not

disagree with the fact that he facilitated the importation of

illegal drugs into the United States.  His statement  reveals

a  greater concern with informing  the court that  he had not

forced  the women to carry  the drugs, than  with denying his

guilt for  his role  in  the scheme.   In  sum,  there is  no

evidence  that appellant was unsure of his plea, nor is there

evidence  that the plea was coerced or entered without a full

understanding of the consequences.

     F.   Prejudice to Government
                                 

          Because  analysis  of  each  of  the  five  factors

supports   the   district  court's   denial   of  appellant's

withdrawal  motion,   we  need  not  consider   the  possible

prejudice  to  government of  reversing  the  decision below.

Doyle, 981 F.2d at 596 n.6 (citing Ramos, 810 F.2d at 315).
                                        

                             III

                          Conclusion
                                    

          Because  the appellant  has  not  made the  showing

required  to reverse a district court's denial of a motion to

withdraw a plea, the decision of the district court is

                              Affirmed.
                                      

                             -16-
                              16
