
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT        No. 97-1051                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                               JOS  A. MARRERO-RIVERA,                                Defendant, Appellant.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                                                                      ____________________                                        Before                                Selya, Circuit Judge,                                       _____________                              Cyr, Senior Circuit Judge,                                   ____________________                             and Keeton,* District Judge.                                          ______________                                                                                      ____________________             Linda Backiel for appellant.             _____________             W. Stephen Muldrow, Assistant United States Attorney, with whom             __________________        Guillermo Gil, United States Attorney, Jos  A. Quiles-Espinosa, Senior        _____________                          _______________________        Litigation Counsel, Edwin O. V zquez, Deputy Chief, Criminal Division,                            ________________        and Nelson P rez-Sosa, Assistant United States Attorney, were on brief            _________________        for appellee.                                                                                      ____________________                                  September 8, 1997                                                                                      ____________________                                    ____________________             *Of the District of Massachusetts, sitting by designation.                    CYR, Senior Circuit  Judge.  Appellant Jos   A. Marrero                    CYR, Senior Circuit  Judge.                         _____________________          Rivera  ("Marrero") contends  that the  district  court erred  in          denying his motion to withdraw his guilty plea, see Fed. R. Crim.                                                          ___          P. 32(e), and miscalculated the  quantity of cocaine for which he          was  held criminally  responsible at  sentencing.  We  affirm the          district court judgment.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    Appellant  Marrero,  owner  and  operator  of  a  small          "cafeter a,"  employed  one  Jes s  Flette  Hidalgo  ("Flette").1          After  unwittingly negotiating with  undercover DEA agents  and a          confidential informant,  Flette agreed  to supply  them with  ten          kilograms of  cocaine, then  transmitted a  message to  Marrero's          beeper stating  that "ten jet  skis" should be prepared.   Flette          later  emerged from the Marrero business establishment carrying a          box  containing one  kilogram of  cocaine.   Shortly  thereafter,          Marrero was arrested in possession  of the beeper to which Flette          had transmitted the "ten jet skis" message.2                    Marrero  initially entered a  "not guilty" plea  to the          charge  of conspiring  with  Flette to  possess,  with intent  to                                        ____________________               1The record is silent as to the work Flette was required to          perform for Marrero.               2The government contended that the one kilogram contained in          the box was a  sample, intended to demonstrate the quality of the          ten kilograms to be supplied.                Three months after  pleading guilty, Marrero  first asserted          that he had not  known what was in  the box which he left  at the          cafeteria for Flette following his  receipt of the "ten jet skis"          message on the beeper.                                          2          distribute, ten kilograms of cocaine in violation of 21 U.S.C.             841(a)(1), 846.  Thereafter, Marrero's lead counsel, Jos  Aguayo,          Esquire, advised that a plea agreement would be in Marrero's best          interests and tried to persuade him  to plead guilty.  Later,  on          July 19, 1996, confronted with a 5:00 p.m. deadline for informing          the  government  whether  he would  change  his  plea, and  after          consulting  with a second attorney, Marrero ultimately decided to          plead guilty.3          A.   The Rule 11 Hearing          A.   The Rule 11 Hearing               ___________________                    On July  22, 1996,  Marrero pled  guilty pursuant  to a          plea agreement and  the district court conducted  a comprehensive          Rule 11 hearing.  See Fed. R.  Crim. P. 11.  The court  inquired,                            ___          inter alia, into Marrero's educational and employment background.          _____ ____          Marrero stated that he had  read, signed, and understood the plea          agreement, after discussing it with counsel.  He further acknowl-          edged  that he  was satisfied  with  Attorney Aguayo's  represen-          tation, that he  understood the indictment discussed  with him by          counsel,4 and that he understood his legal rights as explained by                                        ____________________               3Even  after meeting with both counsel, however, Marrero had          remained  determined to proceed to trial.  At around 3:30 or 4:00          p.m., Marrero and  Aguayo went to a  local bar for about  an hour          while  a potential  defense  witness  decided  whether  he  would          testify without a subpoena.               4Count  1 alleged that  Marrero and Flette  "did unlawfully,                                       _______ ___ ______   ___ __________          willfully, and intentionally combine, conspire, confederate,  and          agree together  with each other,  to commit offenses  against the          _____ ________  ____ ____ _____   __ ______ ________          United  States,  to  wit:  willfully,  knowingly  and  unlawfully                           __  ___   __________  _________  ___  __________          attempting  to possess  with intent to  distribute multi-kilogram          __________  __ _______  ____ ______ __  __________          amounts, that  is, ten (10)  kilograms of cocaine, a  schedule II                             ___  __   _________ __ _______          narcotic  drug  controlled  substance,  that  is,  conspiracy  to                                                  ____  __   __________  __          violate Section 841(a)(1) of Title 21, United States Code.          _______ _______ _________ __ _____ __  ______ ______ ____               All  in violation of  Title 21, United  States Code, Section                                               ______  ______ _____ _______                                          3          the court.                    The  district court then went through the indictment in          abbreviated fashion.5 Marrero acknowledged that he understood the          potential penalties attending the conspiracy charge and explicit-                                                              ___ _________          ly agreed  that he was criminally responsible for conspiring with          __ ______  ____ __ ___ __________ ___________ ___ __________ ____          Flette to  distribute ten kilograms  of cocaine.  He  assured the          ______ __  __________ ___ _________  __ _______          court that he  had not been coerced or  intimidated into pleading          guilty; that he had read  and signed the "Government's Version of          the Facts" appended to the plea agreement, and, after  discussing          it with Attorney Aguayo, acknowledged that the actual events were          as recited by the government.                      The prosecutor then described the factual predicate for          the  guilty plea, including  the meeting  between Flette  and the          undercover agents, at which it  was "agreed that Jesus Flette and          persons working with him would provide 10 kilograms of cocaine to                                        ____________________          846."          ___               (Emphasis added.)               5The  Rule 11  colloquy regarding  the  indictment proceeded          essentially as follows:                     [Court]:  "Now, in  Paragraph  1 of  the plea                    agreement, you agree to plead guilty to Count                    One of the  indictment, charging a  violation                    of  Title  21,  U.S.  Code, Section  846  and                    841(a)(1).  Is that so?"                    [Marrero]: "Yes, sir."                    [Court]: "And  Count  One  charges  you  with                    conspiring with others to unlawfully attempt-                    ing   [sic]   to  possess   with   intent  to                    distribute  multi-kilograms,   that  is,   10                    kilograms  of  cocaine  .  .  .  that  is,  a                    conspiracy  to violate  Section 841(a)(1)  of                    Title 21.  Is that so?"                    [Marrero]: "Yes, sir."                                          4          the  undercover DEA  agents."   The prosecutor  stated that  "[a]          beeper message was  sent to a pager company,  indicating that the          ten jet skis should be  prepared because the buyers were ready."6          Further,  the prosecutor  described how  Flette  had entered  the          Marrero cafeteria and left with the box of cocaine, and how, when          arrested, Marrero was  carrying the beeper  bearing the "ten  jet          skis" message from  Flette.  Finally, the  prosecutor represented          that  Flette  would  establish that  Marrero  had  "willingly and          knowingly conspired with Jesus Flette and others to distribute 10          kilograms of cocaine and in  fact did distribute the one kilogram          of cocaine."  At this point, Marrero agreed with the government's          version of the  relevant events as  described by the  prosecutor.          The district  court accepted  the guilty  plea after  determining          that it was voluntary, knowing, and intelligent.           B.   The Rule 32(e) Hearing           B.   The Rule 32(e) Hearing                ______________________                    Shortly after the  presentence-investigation interview,          and some three months after the Rule 11 hearing, Marrero moved to          withdraw the  guilty plea, see  Fed. R. Crim. P.  32(e), claiming                                     ___          that it  was:   (1) involuntary, in  that he  had succumbed  to a          sense  of helplessness and futility when confronted with Attorney          Aguayo's  advice  that   the  benefits  of  the   plea  agreement          outweighed  the risks of  conviction at trial;  (2) not "intelli-                                        ____________________               6The  Government's Version of the Facts described the beeper          message as: "Jesus Flete then sent a message  to a beeper service          to be  forwarded to  the beeper of  the defendant,  Jose Marrero-          Rivera.  That  message stated that the ten  'jet skis' (referring          to the ten kilos of  cocaine) should be prepared." (parenthetical          in original).                                          5          gently"  made,  as it  had  been  premised on  several  incorrect          assumptions,  including that he  was guilty of  conspiracy simply          because he  had received and  retained the box for  his employee,          Flette,  even though he  had no  contemporaneous knowledge  as to                   ____ ______ __  ___ __  _______________ _________  __ __          what was  in the box;  (3) not "knowingly"  made, in that  he had          ____ ___  __ ___ ___          delegated  to counsel the responsibility for reviewing and inter-          preting the plea  agreement, and thought that once  he had agreed          to change his plea he would  have to sign the plea agreement  and                                _____  ____ __          provide affirmative responses during the change-of-plea colloquy;          (4) not adequately  supported by the Government's  Version of the          Facts, or  the prosecutor's summary  during the Rule  11 hearing,          because there was  no demonstration that  Marrero had known  that          the box  he had  held in  his hands  contained cocaine;  and (5),          predicated on an inadequate Rule 11 inquiry, in that the district          court  neither  asked,  nor   determined,  whether  Marrero   had          understood the mens rea element for the crime of conspiracy.                         ____ ___                    At  the ensuing  Rule  32(e)  hearing, Attorney  Aguayo          testified that he  had explained the  plea agreement to  Marrero,          but did  not coerce him to sign it.  Upon inquiry by the district          court, as  to whether Aguayo  had "explain[ed] the nature  of the          charges"  and  "the  issue  about  .  .  .  the  requirement  the          government   had  to  prove  his  knowing  participation  in  the          conspiracy," Aguayo replied that he  had done so and that  he had          "explained . . .  very clearly that . . . in  order for the Court          to accept a plea  of guilty there had  to be a basis in  fact for          it."   Marrero  responded by  introducing notes,  used by  Aguayo                                          6          during  their  change-of-plea  conference,  describing  Marrero's          admission as  follows:  "What  I did  . . .  A person came  to my          business  and left  a  package  for Jesus  Flette.   The  package          contained cocaine."                    The district court found a sufficient factual predicate          for  the guilty  plea,  citing  in  particular  the  Government's          Version of  the Facts,  with which Marrero  had agreed  and which          explicitly noted that  the "ten jet skis" message  from Flette to          __________ _____          Marrero meant ten kilograms  of cocaine.  See supra note  6.  The                                                    ___ _____          court  construed this to  mean that Marrero  thereby acknowledged          not only  the true  purport of the  beeper message,  but admitted          that he had so understood the message at the time he received it.          Further,  the  court  considered  its  earlier  Rule  11  inquiry          adequate to  support a  reliable determination  that Marrero  had          understood  the conspiracy indictment and the plea agreement, and          expressly  had  agreed  that he  was  criminally  responsible for          conspiring  to  sell ten  kilograms  of  cocaine.   Finally,  the          district court found nothing, either in the plea agreement or the          Rule  11 hearing  transcript,  which  warranted  a  finding  that          Marrero had not understood  what he was admitting to  at the Rule          11 hearing.  Accordingly, the district court denied the motion to          withdraw the guilty plea.                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________          A.   Plea Withdrawal Before Sentencing          A.   Plea Withdrawal Before Sentencing               _________________________________               1.   Legal Framework               1.   Legal Framework                    _______________                                          7                    We begin with bedrock principles.  There is no absolute          right to withdraw a guilty plea  prior to sentencing.  See United                                                                 ___ ______          States v. Pellerito,  878 F.2d 1535, 1537 (1st  Cir. 1989), cert.          ______    _________                                         _____          denied, 502 U.S.  862 (1991).  Rather, a defendant may be allowed          ______          to withdraw a guilty plea before sentencing  only for a "fair and          just reason."  See  United States v.  Cotal-Crispo, 47 F.3d 1,  3                         ___  _____________     ____________          (1st Cir.), cert. denied, 116 S. Ct. 94 (1995); see also  Fed. R.                      _____ ______                        ___ ____          Crim. P. 32(e) ("the court may permit the plea to be withdrawn if          the  defendant shows any fair  and just reason").   The burden of          persuasion rests with  the defendant.  United States  v. Isom, 85                                                 _____________     ____          F.3d 831, 834 (1st Cir. 1996); United States  v. Parrilla-Tirado,                                         _____________     _______________          22 F.3d 368, 371 (1st Cir. 1994).                    The  district court  must  consider several  factors in          determining whether the burden of  persuasion has been met by the          defendant,  the most  significant  being  whether  the  plea  was          voluntary,  intelligent and knowing,  within the meaning  of Rule          11.   Cotal-Crispo, 47  F.3d at 3;  United States v.  Allard, 926                ____________                  _____________     ______          F.2d 1237, 1243 (1st Cir. 1991).  Other relevant  considerations,          see pp. 22-25, include:   (1) the plausibility and weight of  the          ___          proffered reason; (2) the timing  of the request; (3) whether the          defendant asserted legal  innocence; and (4) whether  the parties          had reached,  or breached, a  plea agreement.   Isom, 85  F.3d at                                                          ____          834; Cotal-Crispo, 47 F.3d at 4.  Finally, assuming the defendant               ____________          carries  the burden of persuasion on the aforementioned consider-          ations,  the  district  court  must  weigh  in  the  balance  any          demonstrable  prejudice  to  the  government  were the  defendant                                          8          allowed to withdraw the plea.   Isom, 85 F.3d at  835; Pellerito,                                          ____                   _________          878 F.2d at 1537.                    At the outset, it is particularly important to note the          difficult  appellate terrain which  the present challenge  to the          district court's Rule 32(e) determination must traverse; that is,          the factfinding underlying the plea withdrawal  ruling may not be          set  aside for  anything less  than  "clear error."   See,  e.g.,                                                                ___   ____          Pellerito, 878 F.2d at 1538  ("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 upon  its          withdrawal.").                    If the district court's  account of the  evi-                    dence is  plausible  in light  of the  record                    reviewed  in  its   entirety,  the  court  of                    appeals  may  not  reverse   it  even  though                    convinced  that had  it been  sitting as  the                    trier  of  fact, it  would  have weighed  the                    evidence differently.   Where  there are  two                    permissible  views   of  the   evidence,  the                    factfinder's  choice between  them cannot  be                    clearly erroneous.          Cumpiano v. Banco  Santander Puerto Rico, 902 F.2d  148, 152 (1st          ________    ____________________________          Cir. 1990)  (citing Anderson v.  City of Bessemer City,  470 U.S.                              ________     _____________________          564, 573-74 (1985) (bench trial findings))).  Moreover, we accord          considerable  deference to  the  firsthand assessment  ultimately          made  by the  district court,  which  must be  affirmed absent  a          demonstrable abuse of  discretion.  See United States v. Sanchez-                                              ___ _____________    ________          Barreto, 93 F.3d 17, 23 (1st Cir. 1996), cert. denied, 117 S. Ct.          _______                                  _____ ______                                          9          711 (1997) (Rule 32(e) findings).               2.   Core Rule 11 Concerns               2.   Core Rule 11 Concerns                    _____________________                    We  first  inquire  whether   certain  "core"  Rule  11          concerns  were met.   Rule  11  was "intended  to  ensure that  a          defendant who pleads guilty does so with an 'understanding of the          nature of the charge and the consequences of his plea.'"   Cotal-                                                                     ______          Crispo, 47 F.3d at 4 (quoting McCarthy v. United States, 394 U.S.          ______                        ________    _____________          459, 467 (1969)); United States  v. Medina-Silverio, 30 F.3d 1, 2                            _____________     _______________          (1st Cir. 1994); see  also Fed. R. Crim. P.  11(c).  Accordingly,                           ___  ____          the  Rule 11  hearing should  "produce a  complete record  of the          factors relevant  to that determination  so as 'to  eliminate any          need to resort  to a later factfinding proceeding  in this highly          subjective area.'"  Allard, 926  F.2d at 1244 (quoting  McCarthy,                              ______                              ________          394 U.S. at 469).7                      A  total failure to address any "core concern" mandates                       _____                    ___          that  a guilty  plea be set  aside.   See Isom,  85 F.3d  at 835;                                                ___ ____          United States v. Gray,  63 F.3d 57,  60 (1st Cir. 1995);  Medina-          _____________    ____                                     _______          Silverio,  30 F.3d  at 3.    Otherwise, we  consider whether  any          ________          particular defect in the Rule 11 hearing affected the defendant's          "substantial  rights."  See id.; Fed. R. Crim. P. 11(h); see also                                  ___ ___                          ___ ____          United States v.  Martinez-Martinez, 69 F.3d 1215, 1219 (1st Cir.          _____________     _________________          1995)  (Rule 11(h)  "harmless  error"  rule  excuses  "minor  and          technical violations"),  cert. denied,  116 S.  Ct. 1343  (1996);                                   _____ ______                                        ____________________               7We  have identified  three "core"  Rule  11 concerns:   (1)          voluntariness     i.e., absence of coercion; (2) understanding of                            ____          the charge; and  (3) knowledge of the consequences  of the guilty          plea.  See Medina-Silverio, 30 F.3d at 2.                 ___ _______________                                          10          United  States v.  Raineri, 42  F.3d  36, 41-42  (1st Cir.  1994)          ______________     _______          (harmless  error   analysis  usually   looks  to   whether  error          influenced decisionmaker or  ultimate outcome, but these  are not          only proper considerations under Rule 11(h); "substantial rights"          not violated where defendant was not properly informed of maximum          penalty but received lesser sentence than maximum), cert. denied,                                                              _____ ______          515  U.S. 1126 (1995).  In determining  whether there was a total          failure  to address a  core Rule 11  concern, we  review all "the          circumstances  surrounding the Rule 11 hearing . . . [with a view          to determining]  what was  communicated by  the trial  court, and          what should  reasonably have  been understood  by the  defendant,          ____ ______  __________ ____  ____ __________  __ ___  _________          rather than  the form  of the  communication."  Cotal-Crispo,  47                                                          ____________          F.3d at 4-5 (citations omitted) (emphasis added).                     (a)  Voluntary Plea                     (a)  Voluntary Plea                          ______________                    Marrero  maintains  that  Aguayo   pressured  him  into          accepting  the plea  agreement at  the  last minute,  even though          Marrero was still  "inclined to go to trial" within an hour or so          before  the deadline  for changing  his plea.   Marrero  paints a          vivid  picture:   "definitely anxious  .  . .  more anxious  than          usual,"  waiting at  a local  bar,  with his  attorney, to  learn          whether or not a potential witness would agree to testify without          a subpoena, before deciding at the eleventh hour to accede to his          attorney's  importunings to accept  the plea bargain  tendered by          the  government.8   Furthermore,  as  he did  at  the Rule  32(e)                                        ____________________               8During  the Rule 32(e) hearing, Aguayo testified that while          waiting at the  bar he had a  beer, but could not  recall whether          Marrero did.  As Marrero has not alleged that he had  anything to                                          11          hearing,  Marrero  contends  that  Aguayo's  description  of  the          prospective  sentence was overly rosy,9 whereas his estimation of          the  prospects for  success at  trial  was unduly  pessimistic.10          Notwithstanding  Marrero's resourceful  challenge,  there was  no          clear error or abuse of discretion in the finding that the guilty          plea was voluntary.                    At  the   Rule   11   hearing,   the   district   court          appropriately  inquired  whether  Marrero was  acting  freely and          whether  anyone had  coerced him into  pleading guilty.   Marrero          reassured  the district  court under  oath that  he was  pleading          freely  and that  no  one had  attempted to  coerce him.   Aguayo          corroborated these representations.  Accordingly, Marrero's sworn          responses  were reasonably  credited by  the  district court,  as          "[i]t  is  the policy  of  the law  to  hold  litigants to  their          assurances."  Parrilla-Tirado,  22 F.3d at  373; see also  United                        _______________                    ___ ____  ______          States v.  Martinez-Molina,  64 F.3d  719,  733 (1st  Cir.  1995)          ______     _______________          (statements  at plea  hearing  "carry  a  strong  presumption  of          verity" (quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977))).                           __________    _______                                        ____________________          drink, however,  there is  no suggestion in  the record  that the          guilty plea was rendered involuntary in this regard.               9For example,  Marrero points  to  Aguayo's suggestion  that          there was  a "drug  program" pursuant to  which Marrero  might be          able to reduce his sentence by a year, that he would  be eligible          for "good-time" credits, and that he could spend the final 10% of          his prison stay in a half-way house.               10Marrero also faults  Aguayo's failure to  advise him of  a          possible  defense (i.e., that  Marrero lacked the  requisite mens                             ____                                      ____          rea  for  conspiracy), and  for  failing  to  mention either  the          ___          possibility that Flette's testimony might be vulnerable on cross-          examination  or that certain favorable jury instructions might be          given.                                          12                    Moreover,  Marrero's  belated  representation  that  he          believed he had to answer all questions in the affirmative during                      ___ __          the Rule  11 colloquy  cannot be credited,  on its  face, without                                                      __ ___  ____          virtually  displacing  the  "clear  error"   standard  of  review          governing the appellate inquiry.   Cf. United States v. Butt, 731                                             ___ _____________    ____          F.2d  75,  80 (1st  Cir. 1984)  (even where  appellant represents          that, upon advice of counsel, he uttered false statements at Rule          11 hearing,  those statements  will be  presumed true  unless the          contrary  allegations state a claim for ineffective assistance of          counsel  and include credible,  valid grounds for  departing from          the normal presumption).                    Similarly,  there  is  no   affirmative  evidence  that          Marrero acted involuntarily.  Consequently, even assuming counsel          persuaded  him that  a  guilty plea  would  best serve  Marrero's          interests,  the resultant  plea  would  not  have  been  rendered          "involuntary."   See Miles  v. Dorsey, 61  F.3d 1459,  1470 (10th                           ___ _____     ______          Cir.  1995), cert.  denied, 116  S. Ct.  743 (1996);  Williams v.                       _____  ______                            ________          Chrans,  945 F.2d  926, 933  (7th  Cir. 1991)  ("'Advice     even          ______          strong urging'  by counsel does  not invalidate a  guilty plea.")          (quoting Lunz v. Henderson, 533  F.2d 1322, 1327 (2d Cir.), cert.                   ____    _________                                  _____          denied, 429 U.S. 489 (1976)), cert. denied, 502 U.S. 1208 (1992).          ______                        _____ ______                    Nor can the mere fact that Marrero and counsel may have          undervalued the merit of any potential defense render the Rule 11          plea involuntary.   See United  States v. Muriel, 111  F.3d. 975,                              ___ ______________    ______          981  (1st Cir.  1997) ("This  court  has not  allowed defendants,          absent coercion or  mistake, to renege on plea  agreements on the                                          13          basis that  they have miscalculated  their risks and  benefits or          have  belatedly  discovered   a  new  defense.").     Rather,  in          determining  whether  to  arrive at  a  plea  agreement, criminal          defendants,  with the  assistance of  counsel,  must compare  the          merit  of their  defenses with  the strength of  the government's          case, as well as the penalties likely to be imposed pursuant to a          plea  agreement  or following  trial.    Were  it otherwise,  and          belatedly-realized mistakes  in their  pre-plea assessments  were          deemed  sufficient, without  more, to  warrant plea  withdrawals,          "plea agreements and the pleas entered pursuant to them [would be          rendered] meaningless."  Allard, 926 F.2d at 1243.                                   ______                    Often the decision to plead guilty is heavily                    influenced  by the  defendant's appraisal  of                    the prosecution's case against him and by the                    apparent  likelihood  of   securing  leniency                    should a guilty plea be offered and accepted.                    Considerations like these  frequently present                    imponderable questions for which there are no                    certain answers;  judgments may be  made that                    in   the   light   of   later   events   seem                    improvident,  although  they  were  perfectly                    sensible at  the time. .  . . A  defendant is                    not  entitled  to  withdraw his  plea  merely                    because he discovers long after  the plea has                    been  accepted  that his  calculus  misappre-                    hended the quality of the State's case or the                    likely  penalties  attached   to  alternative                    courses of action.          Brady v. United States, 397 U.S. 742, 756-57 (1970).            _____    _____________                    Finally, the strategic decision to plead guilty was not          rendered  involuntary   by  the  anxieties  and   time  pressures          confronting  Marrero.  The  unenviable position in  which Marrero          found himself  is common  among criminal  defendants, and  hardly          exceptional enough  to evince  an overbearing of  his will  or to                                          14          have  precluded a rational  assessment of the  available options.          See id. at 750 (no evidence  defendant was so gripped by fear  of          ___ ___          possible  death penalty  as  to  preclude  rational  weighing  of          advantages of trial with advantages  of guilty plea); Dorsey,  61                                                                ______          F.3d  at 1470 ("Although  deadlines, mental  anguish, depression,          and stress are inevitable hallmarks of pretrial plea discussions,          such  factors  considered  individually or  in  aggregate  do not          establish that  petitioner's plea was  involuntary."); Pellerito,                                                                 _________          878   F.2d  at   1541  ("Criminal   prosecutions  are   stressful          experiences  for  nearly all  concerned  .  .  . .  The  relevant          question for  plea withdrawal is  . . .  whether the  decision to          plead was voluntary, i.e., a product of free will.").                                ____                    (b)  Knowing and Intelligent Plea                    (b)  Knowing and Intelligent Plea                         ____________________________                    The main focus  of the Rule 32(e) claim  in relation to          the second core  concern is that Marrero did  not understand, nor          was   he  informed  about,  the  mens  rea  requirement  for  the                                           ____  ___          conspiracy charge     viz. that the government had  to be able to                                ____          prove he  knew, at  the time,  that the  box he  left for  Flette          contained  cocaine and constituted  a one-kilogram sample  of the          ten  kilograms to  be  delivered to  the  buyers.   In  a closely          related  contention, Marrero insists  that there was  no adequate          factual predicate for the guilty plea since he simply admitted to          _______          having  knowingly  held the  box  for  Flette  and that  the  box          contained cocaine, but that he did not  know, at the time he held                                                        __ ___ ____ __ ____          the box, that it contained cocaine.          ___ ___                    There  was no  "clear  error"  in  the  district  court                                          15          finding  that  Marrero  understood  the  nature  of  the  cocaine          conspiracy  charge at the Rule 11  hearing.  Marrero acknowledged          under  oath  that  he  had  read,  discussed  with  counsel,  and          understood  the indictment.   He endorsed the  factual summary of          the offense given by the government at the Rule 11 hearing.  Both          the indictment and the government's version  of the facts plainly          referred  to  the  requisite  mens  rea  for  conviction  of  the                                        ____  ___          conspiracy offense.11   Thus, Marrero was explicitly  informed of                                                    __________          the mens rea requirement for the conspiracy charge.12              ____ ___                    Nor are we  unmindful that Marrero claims  to have been          undone by  the nuances of  conspiracy law.   But  while a  layman          might not be expected to  understand, ab initio at least, exactly                                                __ ______          what he  need have known to  be found culpable as  a conspirator,          there can have  been little question as  to the point in  time by                                                                         __          which the requisite  culpable knowledge need have  been acquired;          _____                                                   ________          to  wit, before  the defendant's  conspiratorial involvement,  if          any,  terminated.   In  truth then,  the  contention Marrero  now          raises  concerning whether his  guilty plea was  "intelligent" is                                        ____________________               11The  indictment,  see supra  note  4,  was  replete   with                                   ___ _____          language  affording Marrero notice of the requisite knowledge and          intent.   See  also  supra note  5.    Moreover,the  prosecutor's                    ___  ____  _____          summary of  the facts,  see supra pp.  4-5, stated  that Flette's                                  ___ _____          testimony would establish that  Marrero "willingly and  knowingly          conspired"  with Flette to  distribute ten kilograms  of cocaine,          and did distribute one kilogram.               12The  record evidence further  reflects that Marrero  is an          adult  male, age 37,  who completed  high school  and went  on to          become a commercial  airline pilot.   At the time of  his arrest,          Marrero owned and operated his own small cafeteria business.  The          district court  found that Marrero  was alert and  understood the          Rule 11 proceedings.                                          16          not, as he would have it, dependent upon his understanding of the          intricacies  of conspiracy  law, but  on  the commonsense,  near-          universal  understanding  that  one  cannot  be  held  criminally          responsible for agreeing to cooperate with another in effecting a          lawful enterprise.  Thus, the upshot of the present contention is          ______          that Marrero pled  guilty to a felony cocaine  charge, carrying a          potential life-imprisonment term,  knowing all the while  that he          had never agreed to distribute cocaine.                    At bottom, therefore,  what Marrero points to  as clear          error is the  district court finding     both at the Rule  11 and          the Rule 32(e)  hearing    that Marrero conspired  with Flette to          sell ten kilograms  of cocaine, knowing that the  object of their          agreement was unlawful.   Even so, it was not  essential that the                        ________          evidence establish that  Marrero knew the box  contained cocaine.          Rather, it was only necessary to establish an evidentiary founda-          tion upon  which the  district court reasonably  could find  that          Marrero and  Flette knowingly agreed  to supply ten  kilograms of          cocaine.  See, e.g., United States v.  De La Cruz, 996 F.2d 1307,                    ___  ____  _____________     __________          1311  (1st Cir.)  (although  defendant  never  saw  or  possessed          cocaine, and  there was no  direct evidence that  he knew of  its          existence, a combination of circumstantial factors    presence at          scene,   suspicious  conduct,   subordination  to   drug  leader,          possession of cellular  phone and beeper    allowed  jury to draw          inference  that scienter  elements of  conspiracy were  present),          cert. denied,  510  U.S.  936  (1993).    Among  the  evidentiary          _____ ______          considerations  which sufficed, in combination, to support such a                                          17          showing,  were Marrero's  repeated  admissions  at  the  Rule  11                                              __________          hearing  that he  had  conspired with  Flette  to distribute  ten          kilograms of cocaine; the  employer-employee relationship between          Marrero  and Flette;  the beeper  message  Marrero received  from          Flette   to  prepare  "ten  jet  skis";  the  government  agents'          representations;  the kilogram of  cocaine seized by  the agents;          and  Marrero's acknowledgement  that the government's  version of          the facts, see supra pp. 4-5, was correct.  Furthermore, although                     ___ _____          it is conceivable that Marrero did not know the box contained co-          caine, there is no dispute that it did contain cocaine.                                             ___                    Therefore, given the undisputed physical evidence,  and          Marrero's  admission  that   he  did  conspire  with   Flette  to          distribute  ten  kilograms  of  cocaine,  the  district   court's          findings, both at the Rule 11 hearing and the Rule 32(e) hearing,          were not only entirely plausible, but far more plausible than the          scenario belatedly suggested  by Marrero, even assuming  he never          knew the box contained cocaine.   See Sanchez-Barreto, 93 F.3d at                                            ___ _______________          23; Cumpiano, 902 F.2d at 152.              ________                    The effort to  establish that Marrero did  not know the          box contained  cocaine is  impeded by  two additional  obstacles.          First,  Marrero  must  persuade  us  that  the  district  court's          contrary  assessment constituted  an abuse  of  discretion.   See                                                                        ___          Sanchez-Barreto, 93  F.3d at 23.  Second, after repeatedly repre-          _______________          senting at the  Rule 11 hearing that he did  conspire with Flette                                                  ___          to distribute ten  kilograms of cocaine, the plausibility  of his          present contention  is  seriously diminished  by  his  continuing                                          18          failure,  even at  this late  date,  to attempt  to articulate  a          theory  upon which  it  might be  determined, given  the evidence          relied upon by the government at the Rule 11 hearing, that he did          not conspire with  Flette.  Thus, whether or not Marrero knew the          ___          box contained cocaine  at the time he  left it for Flette,  there          was ample basis  for the  district court  rationally to  conclude          that he did, as well as an abundant evidentiary foundation at the          Rule 11  hearing for  finding the  guilty plea  "intelligent" and          "knowing," especially  in light  of Marrero's  assurances to  the          district court that he had discussed the nature of the conspiracy          charge  with Aguayo  and  understood  it.   On  this record,  the          district court's firsthand assessment that Marrero's  guilty plea          was knowingly and intelligently made did not  constitute an abuse          of discretion.  See id.                           ___ ___                    Finally,  after  reviewing  the entire  record,  we can          discern  nothing that might have indicated to the district court,          in any way,  that Marrero either did not  understand, or had been          misinformed by counsel  regarding, any element of  the conspiracy          charge  lodged  against him.    Rather,  all responses  given  by          Marrero during the Rule 11 colloquy were entirely consistent with          a correct  and  comprehensive  understanding  of  the  conspiracy          charge and its elements.  See Isom, 85 F.3d at 833,  836 (holding                                    ___ ____          that   nothing  in   record  indicated   that  defendant   lacked          understanding of charges); United States v.  Ramos, 810 F.2d 308,                                     _____________     _____          314 (1st  Cir. 1987) (no doubts raised  as to competence to plead          until plea-withdrawal motion); Marquis v. United States, 698 F.2d                                         _______    _____________                                          19          13,  16 (1st  Cir. 1983) (no  indication at Rule  11 hearing that          plea was  involuntary or  product of  misunderstanding); contrast                                                                   ________          Gray, 63 F.3d  at 60 (defendant represented that  he was confused          ____          about  consequences  of  guilty plea);  United  States  v. Ribas-                                                  ______________     ______          Dominicci, 50 F.3d 76, 79  (1st Cir. 1995) (responses during Rule          _________          11 colloquy "should have  alerted the court that  [defendant] was          claiming  that, at  the  time  the trousers  were  sold to  third          parties, he did not intend to commit a  crime"); United States v.                                                           _____________          Ruiz-Del Valle,  8 F.3d 98,  103 (1st Cir. 1993)  (charge neither          ______________          read nor explained, and defendant made statement that should have          put court on notice that she did not understand firearms charge);          United  States v.  Valencia, 923  F.2d 917,  921 (1st  Cir. 1991)          ______________     ________          (defendant  expressed confusion  about jurisdictional  element of          charge);  Mack v.  United States,  635 F.2d  20, 24-25  (1st Cir.                    ____     _____________          1980) (where defendant  stated first that he had  been coerced, a          contradictory  statement that plea was voluntary could not simply          be accepted by district court    "Once Mack stated that the  plea          was not made  of his  own free  will, the court  was required  to          undertake a more searching inquiry." (citations omitted)).                     (c)  Evidentiary Predicate For Guilty Plea                    (c)  Evidentiary Predicate For Guilty Plea                         _____________________________________                    For similar reasons,  we reject the further  claim that          the factual predicate for the guilty plea was inadequate.  First,          Marrero  conceded that  the  government  could  prove,  beyond  a          reasonable  doubt, that  he "willingly  and knowingly  conspired"          with Flette and others to distribute ten kilograms of cocaine and          that they  actually distributed  one kilogram  to the  undercover                                          20          agents.   The district court  was entitled to credit  these sworn          judicial  admissions.  Parrilla-Tirado, 22 F.3d  at 373 ("[i]t is                                 _______________          the policy of the law to hold litigants to their assurances.").                    The district court  record further  supports a  finding          that  Marrero had  the requisite  culpable  state of  mind.   The          government's  version  of  the  facts  stated  that  Marrero  had          received a beeper message to prepare "ten jet skis," specifically                                                               ____________          noting that "jet skis" meant  cocaine.  Marrero explicitly stated          ______ ____  ___ ____  _____  _______          that he had read the government's version of the facts, discussed          it with counsel, and acknowledged its truth.                    Marrero nonetheless contends on appeal  that the record          does  not indicate  that  he  understood  that  the  government's                                    __          rendition of "jet skis" (as  a code term for "cocaine") purported          to   describe  what   Marrero,  as  distinguished   from  Flette,          understood  the term  to mean.   In  addition, he now  notes that          there is  no record  evidence that "jet  skis" was  a prearranged          code, and denies  having known that it meant  anything other than          aquatic jet skis.          _______                    The factual predicate for the requisite mens rea may be                                                            ____ ___          inferred from all the evidence alluded to at the Rule 11 hearing.          See United States  v. Japa, 994 F.2d 899, 903-04  (1st Cir. 1993)          ___ _____________     ____          (factual predicate for  mens rea met even though  court failed to                                  ____ ___          ask during  Rule 11 colloquy,  with regard to one  count, whether          defendants had requisite intent, where intent reasonably could be          inferred  from their admission  of intent in  relation to another          count); Cotal-Crispo,  47 F.3d at  4-5 ("What is critical  is the                  ____________                                          21          substance of what  was communicated by the trial  court, and what          should reasonably have  been understood by the  defendant, rather          than the form of the communication.") (citations omitted).                    Altogether aside  from the  fact that  Marrero has  not          attempted to explain  to us why he  would have received a  beeper          message from Flette to prepare  "ten jet skis," absent any record          indication  or  contention that  either  he  or  Flette dealt  in          aquatic   "jet  skis,"  there  is  no  suggestion  from  Marrero,          plausible  or otherwise,  as to why  the undercover  agents would          have offered  Flette $18,000 for each  "jet ski."13  More  to the          point, were we to postulate that the term "jet skis" did refer to          the  aquatic variety,  we would be  at a total  loss ourselves to          explain the uncontested fact that the box Flette delivered to the          undercover  agents contained  cocaine.  Accordingly,  we conclude          that  the district court reasonably found that Marrero understood          that the  beeper  message he  received  from Flette  referred  to          cocaine, particularly in  light of Marrero's Rule  11 admissions.          See, e.g., supra note 13.          ___  ____  _____                    Finally,  Marrero maintains that  he did not understand          the conspiracy charge and that  once he understood it he realized                                        ____________________               13Marrero  explicitly acknowledged  the  correctness of  the          Government's Version  of the Facts, which states  that the agents          offered to buy "ten jet skis"  at $18,000 each.  Thus, there  was          no  clear error  in  the district  court's  finding that  Marrero          understood,  at the  time he  received  it, that  the "jet  skis"          message  referred  to  cocaine.    In  addition,  of course,  the          indictment to  which Marrero pled  guilty did not speak  in code,          but  plainly alleged,  as an  overt act, that  Flette had  sent a          beeper  message to Marrero  "providing instructions regarding the          sale of ten (10) kilograms of cocaine."                                            22          he was not guilty.   See Parrilla-Tirado, 22 F.3d at  373 (asser-                               ___ _______________          tion of innocence  weighs in favor of withdrawal).   He relies on          notes made by  Aguayo during their Rule 11 conference, indicating          that  Marrero  had admitted  that  the  box  he left  for  Flette          contained cocaine.   Although  Aguayo stated  at  the Rule  32(e)          hearing that he had explained to Marrero the nature of the charge          and that  there had to be a factual basis  for it, Aguayo was not          asked to  explain precisely  how he  had described  the requisite          factual basis.  See supra p. 6.                          ___ _____                    We  cannot  permit  Marrero to  exploit  this  putative          omission on direct appeal absent  a fully developed record, as it          amounts to a Sixth Amendment "ineffective assistance" claim.  See                                                                        ___          United  States  v.  Lopez-Pineda,  55 F.3d  693,  697  (1st Cir.)          ______________      ____________          (inadequate record  precludes review of  "ineffective assistance"          claim  on direct appeal;  collateral review remains  open), cert.                                                                      _____          denied, 116 S.  Ct. 259 (1995); United States  v. Tuesta-Toro, 29          ______                          _____________     ___________          F.3d 771,  776 (1st  Cir. 1994)  (collateral proceeding  under 28          U.S.C.   2255 is proper forum for fact-bound "ineffective  assis-          tance" claim, where record is insufficiently developed for direct          review), cert.  denied, 115  S. Ct. 947  (1995); see  also United                   _____  ______                           ___  ____ ______          States v.  McDonald,      F.3d    ,      , 1997  WL 464957 * (1st          ______     ________  ___       ___   ____          Cir.  August 20, 1997).   Further factual  development is plainly          necessary  as the present  claim implicitly presumes  that Aguayo                                                      ________          rendered  ineffective assistance.  Although there could be little          doubt  that an "ineffective  assistance" claim would  lie were it          made to appear that defense counsel failed to explain, prior to a                                          23          Rule 11  hearing, that  the defendant could  not be  convicted of          conspiracy  under 21  U.S.C.     841(a)(1),  846,  unless he  had          knowingly conspired to  distribute cocaine, we  are not about  to          _________          presume professional ineptitude on the part of counsel.                3.   Other Relevant Factors               3.   Other Relevant Factors                    ______________________                    Since the district court conducted a comprehensive Rule          11 hearing  during which  Marrero repeatedly stated  that he  was          satisfied with  Aguayo's representation,  understood the  charges          and  the consequences  of his  guilty  plea, freely  acknowledged          having agreed with Flette to  distribute ten kilograms of cocaine          as alleged  in the indictment  and that he  had not  been coerced          into  pleading guilty,  the Rule  11 record  fully  supported the          district  court's determination that the guilty plea was knowing,          intelligent and  voluntary.  See  Sanchez-Barreto, 93 F.3d  at 23                                       ___  _______________          ("We  have  found  no abuse  of  discretion  in disallowing  plea          withdrawals where  Rule 11 safeguards were  scrupulously followed          by  the district  court."); Ramos,  810  F.2d at  314 ("That  the                                      _____          district  court  thoroughly  complied with  Rule  11  also weighs          heavily against appellant.").                      Furthermore, the change  of heart by Marrero  came more          than  fourteen  weeks after  the  Rule  11  hearing.   Given  the          principal  ground on  which the  Rule  32(e) motion  is based              essentially  that Aguayo had  pressured him into  pleading guilty          and had not  explained to him  that he need  have known that  the          object of the alleged conspiracy  was to distribute cocaine    we          think the  extended delay  in seeking to  vacate the  guilty plea                                          24          likewise diminishes its plausibility.  "The rule of thumb is that          the longer a defendant waits  before moving to withdraw his plea,          the more potency his motion must have in order to  gain favorable          consideration."   Parrilla-Tirado,  22 F.3d  at 373.   See  also,                            _______________                      ___  ____          e.g., Isom, 85 F.3d at  839 (two months, too long); Cotal-Crispo,          ____  ____                                          ____________          47 F.3d at 8  (same); Ramos, 810 F.2d at 313  (thirteen days, too                                _____          long).   Although Marrero  asserts that it  is difficult  to find          legal representation  in Puerto  Rico in  August, and  points out          that the  Rule 32(e)  motion was filed  prior to  the presentence          report  and  sentencing,  contrast  United  States  v.  Gonzalez-                                    ________  ______________      _________          Vazquez, 34  F.3d 19, 22-23  (1st Cir. 1994) (defendant  moved to          _______          withdraw plea after presentence report suggested he would receive          a stiff sentence); Parrilla-Tirado, 22 F.3d at  373 (same), these                             _______________          other  considerations  alone  do not  warrant  setting  aside the          district court's firsthand assessment that there  was no fair and          just reason  for allowing  Marrero to withdraw  his guilty  plea.          See Cotal-Crispo, 47 F.3d at 3.          ___ ____________          B.   Calculation of Drug Quantity           B.   Calculation of Drug Quantity                ____________________________                    In another vein, Marrero challenges the finding that he          was  criminally responsible  for  ten kilograms  of cocaine.   He          contends that the  district court failed  to consider whether  he          had either the intent or the ability to distribute the negotiated          quantity  of cocaine     ten  kilograms.   See U.S.S.G.    2D1.1,                                                     ___          comment. (n.12)  (1995) ("If, however, the  defendant establishes                                                      _________ ___________          that  he . . . did  not intend to provide,  or was not reasonably          capable of  providing the agreed-upon  quantity . . .,  the court                                          25          shall exclude from the offense  level determination the amount of          controlled substance that the defendant establishes that he . . .          did  not intend  to  provide  or was  not  reasonably capable  of          providing.") (emphasis added).   Marrero  further maintains  that          even assuming he knew the  box contained one kilogram of cocaine,          it was not  "reasonably foreseeable" that the one  kilogram was a          sample for a ten-kilogram sale,  and therefore he should not have          been found  culpable for the  total amount negotiated  by Flette.          See U.S.S.G.   1B1.3(a)(1)(B), comment. (n.2) (1995).          ___                    There can have  been no clear error,  see United States                                                          ___ _____________          v. Miranda-Santiago,  96 F.3d  517, 524 (1st  Cir. 1996),  as the             ________________          district court correctly found that Marrero had admitted, both in          the plea  agreement and during the  Rule 11 hearing, that  he was          responsible  for  ten  kilograms of  cocaine  as  charged  in the          indictment.  See supra note 2.   The district court was  entitled                       ___ _____          to credit these  sworn admissions.  See Parrilla-Tirado,  22 F.3d                                              ___ _______________          at 373; Martinez-Molina, 64 F.3d at 733; Carter, 815 F.2d at 829;                  _______________                  ______          Butt, 731 F.2d at 80.           ____                    Finally,  the  claim  that Marrero  did  not  intend to          produce, or  was  not  capable  of producing,  ten  kilograms  of          cocaine, fails as well, since there was no attempt to demonstrate          that he and Flette were  not reasonably capable of delivering the          amount agreed  upon with the  undercover agents.  See  U.S.S.G.                                                              ___          2D1.1 comment. (n.12) (1995).   Accordingly, Marrero's admissions          afforded ample support for the district court finding that he was          criminally responsible for ten kilograms.                                           26                                         III                                         III                                      CONCLUSION                                      CONCLUSION                                      __________                    For the foregoing reasons,  the district court judgment          is affirmed, without prejudice to appellant's right  to renew the             ________          ineffective assistance claim in a collateral proceeding.                                          27
