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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br>No. 97-1200 <br> <br>                     JES S MIRANDA-GONZ LEZ, <br> <br>                      Petitioner, Appellant, <br> <br>                                v. <br> <br>                          UNITED STATES, <br> <br>                            Appellee. <br> <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>          [Hon. Hctor M. Laffitte, U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                     Boudin, Circuit Judge, <br>                                 <br>                 Bownes, Senior Circuit Judge, <br>                                 <br>                   and Lynch, Circuit Judge. <br>                                 <br>                                 <br>                                 <br>                                 <br>     Rafael F. Castro-Lang for appellant. <br> <br>     Warren Vzquez, with whom Guillermo Gil, United States <br>Attorney, Jorge E. Vega-Pacheco, Assistant United States Attorney, <br>and Camille Vlez-Riv, Assistant United States Attorney, were on <br>brief for appellee. <br> <br> <br>                                 <br>                                 <br>                         June 28, 1999 <br>                                 <br>                                 <br>                                 <br>                                 <br>                                

  BOWNES, Senior Circuit Judge.  On April 5, 1993, Jess <br>Miranda-Gonzlez ("Miranda") pleaded guilty to one count of <br>distributing cocaine in violation of 21 U.S.C.  841(a)(1).  The <br>district court sentenced Miranda to a prison term of thirty-three  <br>months, followed by three years of supervised release, and a $5,000 <br>fine.  <br>  Miranda subsequently filed a pro se motion seeking to <br>vacate his plea under 28 U.S.C.  2255, which was later <br>supplemented with a more detailed memorandum of law once he <br>retained counsel.  In these documents, Miranda maintained, inter <br>alia, that he did not voluntarily and intelligently plead guilty <br>because he was under the influence of certain prescription drugs at <br>the time.  In the alternative, he argued that his answers during <br>the plea colloquy were so incoherent that they should have alerted <br>the judge to postpone the plea and order a psychiatric evaluation.  <br>  The motion was referred to a magistrate judge, who, after <br>conducting an extensive hearing, recommended that it be denied.  <br>The district court adopted the magistrate's findings and <br>recommendations in their entirety and refused to grant the motion, <br>ruling that Miranda had knowingly and intelligently entered his <br>guilty plea.  This appeal followed. <br>  Because entering a guilty plea is a solemn act involving <br>the waiver of several constitutional rights, principles of due <br>process require that a plea "amount to a voluntary and 'intentional <br>relinquishment or abandonment of a known right or privilege.'" <br>United States v. Cotal-Crespo, 47 F.3d 1, 4 (1st Cir. 1995) <br>(citation omitted).  Rule 11 of the Federal Rules of Criminal <br>Procedure sets forth a detailed procedure for accepting a guilty <br>plea to ensure that a defendant who pleads guilty does so with "an <br>understanding of the nature of the charge and the consequences of <br>his plea."  Id. (quoting McCarthy v. United States, 394 U.S. 459, <br>467 (1969)).  <br>  A defendant who pleads guilty to an offense and later <br>attempts to wipe the slate clean bears a heavy burden, for he <br>"possesses no absolute right to retract his plea."  United States <br>v. Pellerito, 878 F.2d 1535, 1537 (1st Cir. 1989).  A guilty plea <br>will not be set aside where a defendant has had a change of heart <br>simply because he now believes the case against him has become <br>weaker or because he is not satisfied with the sentence he has <br>received.  When, as now, a defendant wishes to have his plea <br>declared invalid due to his use of prescription medication or <br>illicit drugs, "[t]he mere fact that [he] took potentially mood- <br>altering medication is not sufficient to vitiate his plea."  Id. at <br>1542.  Rather, he must show "that the medication affected his <br>rationality."  Id.  We review de novo the district court's legal <br>conclusions in denying the  2255 motion, and we defer to any <br>findings of fact unless clearly erroneous. <br>  In United States v. Parra-Ibanez, 936 F.2d 588 (1st Cir. <br>1991), we imposed on district judges a duty to conduct a more <br>searching inquiry into the contemporaneous effects of medication on <br>a defendant's ability to render a knowing and intelligent plea when <br>they are alerted to the fact that a defendant has recently ingested <br>drugs.  Accord United States v. Cole, 813 F.2d 43, 46-47 (3d Cir. <br>1987).  Confronted with a situation in which the district court <br>ignored obvious signs of a possible mind-altering influence, we <br>remanded the case for further factfinding by the district court as <br>to the chemical properties of the medication and the defendant's <br>particular medicinal regimen.  See 936 F.2d at 598.  Arguing that <br>his guilty plea is similarly suspect, Miranda seeks to shoehorn his <br>situation into our holding in Parra-Ibanez.  But try as he might, <br>it does not fit. <br>  Unlike in Parra-Ibanez, once put on notice that Miranda <br>had been taking Xanax and Ativan, the court here conducted an <br>extended colloquy to ascertain Miranda's reasons for taking the <br>medications, the frequency with which he took them, the dosage of <br>each, and the effects of the drugs on his cognitive functions <br>during the change of plea hearing: <br>    THE COURT:  Have you taken any medicine, <br>  pills, drugs or alcoholic beverages in the <br>  past 24 hours? <br> <br>    THE DEFENDANT:  Yes.  I'm taking Xanax and <br>  Ativan. <br> <br>    THE COURT:  What's that for? <br> <br>    THE DEFENDANT:  For my nerves so I can relax. <br> <br>    THE COURT:  Now, when was the last time that <br>  you have these pills? <br> <br>    THE DEFENDANT: I take them in the morning and <br>  in the evening. <br> <br>    THE COURT:  So last night you took these <br>  pills? <br> <br>                       THE DEFENDANT:     Yes, this morning. <br> <br>    THE COURT:  And this morning? <br> <br>    THE DEFENDANT:  And this morning. <br> <br>    THE COURT:  Now, this Ativan and Xanax, with <br>  "X", Xanax, that's an anthiolithic [sic], that <br>  is, to sort of calm your nerves, isn't it? <br> <br>    THE DEFENDANT:  Yes. <br> <br>    THE COURT:  And does that in any way cloud[] <br>  your thinking or put[] you drowsy or make[] <br>  you drowsy or in any way impair your mental <br>  process? <br> <br>    THE DEFENDANT:  Sometimes I have blackouts. <br> <br>    THE COURT:  But now let me -- let's talk about <br>  now, today, now.  You took those pills this <br>  morning, and my question to you is whether <br>  those pills have in any way affected your <br>  capability or ability to understand today's <br>  proceedings. <br> <br>    THE DEFENDANT:  No. <br> <br>    THE COURT:  They don't affect you?  You have <br>  to voice your answer. <br> <br>    THE DEFENDANT:  No, no, no. <br> <br>Following this inquiry, the court then asked several questions of <br>Miranda to probe his comprehension of the crime with which he was <br>charged and the specific purpose of that day's proceedings.  <br>Miranda briefly consulted with counsel and answered that he was <br>present to change his plea to guilty "for the sale of an eighth <br>. . . [o]f cocaine."  <br>  We believe that the judge faithfully conducted the <br>requisite Parra-Ibanez inquiry and was satisfied that in his <br>medicated state Miranda fully understood the nature of the hearing <br>and the gravity of his decision to plead guilty.  The record amply <br>supports that determination. <br>  The cases cited by Miranda do not compel a contrary <br>result.  The absolute failure to investigate further once apprised <br>of the recent ingestion of drugs doomed the plea entered by the <br>defendants in Parra-Ibanez and Cole, while the judge here properly <br>asked probing follow-up questions.  <br>  Manley v. United States, 396 F.2d 699 (5th Cir. 1968), <br>similarly offers Miranda no solace.  In Manley, the Fifth Circuit <br>invalidated a defendant's plea where he was given two injections of <br>narcotics immediately before tendering his plea.  Because the <br>defendant had difficulty communicating with his own lawyer and the <br>government misrepresented the nature of the injections to the <br>district court, the court of appeals found itself unable to say <br>with any measure of certainty that the medication did not impair <br>his judgment in deciding to plead guilty.  See 396 F.2d at 701.   <br>  Ours is a different situation altogether.  The district <br>court spent considerable time delving into the details surrounding <br>the defendant's use of the medicine during the actual plea hearing; <br>the magistrate judge later allowed Miranda to further develop the <br>record during the habeas hearing.  Miranda does not contend that <br>either judge misapprehended the risks of the medications or was <br>misinformed about their effects.  On the whole, the determination <br>that Miranda was of sound mind when he pleaded guilty to <br>trafficking in cocaine was based on reliable evidence. <br>  Finally, Miranda has a fallback position:  he insists <br>that his answers during the plea colloquy showed that he was so <br>incoherent that the court should have postponed the proceedings sua <br>sponte and ordered a psychiatric review.  We disagree.  From our <br>review of the transcript, Miranda's responses did not reflect a <br>patent lack of lucidity.  To the contrary, we discern nothing that <br>would have warranted a departure from the scheduled proceedings.  <br>Despite having taken prescription medication that morning, Miranda <br>signaled that he understood the purpose of the hearing; he was able <br>to communicate with his lawyer; and he spoke clearly and <br>responsively in answering the judge's inquiries.  Although he said <br>that he sometimes had difficulty concentrating and occasionally had <br>what he called "blackouts" while on his medication, he acknowledged <br>that he was experiencing no problems during the plea hearing.  As <br>his own expert later attested, he was taking only mild tranquilizer <br>twice a day to control his bouts of anxiety.  Our conclusion is <br>bolstered by the record of the hearing held by the magistrate judge <br>on the  2255 motion, which established, among other things, that <br>there existed no reason to believe that Miranda was experiencing <br>psychosis or that he suffered from any serious mental illness at <br>the time of the change of plea hearing.  While we can envision a <br>set of circumstances under which a colloquy might give rise to <br>further concerns about a defendant's capacity to fully comprehend <br>his actions, the exhaustive on-the-record discussion here provided <br>no warning flags warranting more drastic action.   <br>  We note, moreover, that the district court took great <br>pains to ensure fairness, asking both the prosecutor and defense <br>counsel whether either had any doubts as to Miranda's competence to <br>enter the guilty plea, in light of the disclosures concerning his <br>medication and recent psychiatric history.  Neither voiced an <br>objection.  Under the circumstances, the judge did all that was <br>required of him.   <br>  For the reasons set forth above, we affirm the district <br>court's denial of Miranda's  2255 motion.</pre>

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