
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-1228                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                               LUIS E. PARRILLA-TIRADO,                                Defendant, Appellant.                              __________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                 [Hon. Jaime Pieras, Jr., Senior U.S. District Judge]                                          __________________________                              __________________________                                        Before                                Selya, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                              __________________________               Lydia Lizarribar-Masini for appellant.               _______________________               Ernesto Hernandez-Milan, Assistant  United States  Attorney,               _______________________          with  whom  Guillermo Gil,  United States  Attorney, and  Jose A.                      _____________                                 _______          Quiles-Espinosa, Senior  Litigation Counsel,  were on brief,  for          _______________  __________________________          appellee.                              __________________________                                    April 28, 1994                                   __________________________                    SELYA,  Circuit Judge.    Having  rethought his  guilty                    SELYA,  Circuit Judge.                            _____________          plea,  defendant-appellant  Luis  E.  Parrilla-Tirado  (Parrilla)          moved to  withdraw it pursuant  to Fed. R.  Crim. P. 32(d).   The          district court denied the motion and thereafter imposed sentence.          Parrilla appeals.  We affirm.          I.  PROCEEDINGS BELOW          I.  PROCEEDINGS BELOW                    On April 24, 1991, appellant and  a companion, Angel M.          Concepcion-Roberto  (Concepcion), were apprehended  after a high-          speed chase.  The  authorities discovered a firearm on  the front          passenger seat  of their  car.1  On  September 18, 1991,  a grand          jury returned a two-count indictment.   Count 1 charged appellant          with  violating 18  U.S.C.    922(g)(1)  (1988),  a statute  that          renders it unlawful for a convicted felon, among other things, to          "transport  in interstate or  foreign commerce, or  possess in or          affecting  commerce, any  firearm," and  also charged  Concepcion          with assisting the crime's commission in  violation of the aiding          and abetting statute, 18 U.S.C.   2(a) (1988).   Count 2 reversed          the  defendants'   roles,  charging  that   Concepcion  knowingly          transported and/or possessed the  firearm in violation of section          922(g)(1), and that appellant aided and abetted him.                    Appellant was  arraigned before  a magistrate judge  in          February  of   1992.    Notwithstanding  the   structure  of  the          indictment,  the   Assistant   United  States   Attorney   (AUSA)          inexplicably  told  the  magistrate  that   appellant  was  being                                        ____________________               1The record  reflects that  Concepcion had been  driving the          vehicle and that appellant had occupied the front passenger seat.                                          2          prosecuted exclusively on count  1.  Consequently, the magistrate          arraigned appellant only on that count.  He pled not guilty.                    Four   months   later,   appellant,  through   counsel,          negotiated a non-binding plea  agreement with the government, see                                                                        ___          Fed. R. Crim. P. 11(e)(1)(A), under  which he agreed to admit his          guilt  on count 1 and the  government agreed to seek dismissal of          the charge  leveled against him in  count 2.  In  due course, the          district  court allowed appellant's change of plea.  In September          1992, the probation office compiled and delivered the presentence          investigation  report (PSI  Report).   In December,  after having          been  afforded  an  opportunity  to scrutinize  the  PSI  Report,          appellant  moved to withdraw his plea.  The district court denied          the  motion, primarily  on the  ground that  appellant's asserted          reasons lacked  "force and  plausibility."  Soon  thereafter, the          court sentenced appellant on count 1 and dismissed count 2.                    Appellant  now  asserts that  no  consideration existed          within  the  plea  bargain  to  support  the  guilty  plea,  and,          therefore, that he should have been allowed to withdraw it.  This          assertion rests  on two theses:   (1) that the AUSA  indicated at          arraignment  that count 2 did not involve appellant; and (2) that          the  two  counts  were,   in  all  events,  multiplicitous,  and,          consequently, pleading  guilty to one count  effectively disposed          of the other.          II.  ANALYSIS          II.  ANALYSIS                    We first set in place the framework under which motions          to  withdraw pleas  must  be  analyzed,  and  then  turn  to  the                                          3          specifics of appellant's asseverational array.                                  A.  The Framework.                                  A.  The Framework.                                      _____________                    Trial judges  are the  judiciary's infantry:   they man          the front lines  and, therefore, possess special insight into the          dynamics of the  cases over which they preside.   In deference to          that insight, we review the district court's decision to grant or          deny a  request to  withdraw a  guilty plea solely  for abuse  of          discretion.  See  United States v. Doyle, 981 F.2d  591, 594 (1st                       ___  _____________    _____          Cir.  1992); United States v. Pellerito, 878 F.2d 1535, 1538 (1st                       _____________    _________          Cir. 1989).                    Although  a motion  to  withdraw a  guilty plea  before          sentencing  is determined under a less  stringent standard than a          motion made after sentencing, see Fed. R. Crim. P. 32(d) advisory                                        ___          committee's note, a defendant does not have an automatic right to          withdraw his plea even  at that comparatively early stage.   See                                                                        ___          United  States v.  Buckley, 847  F.2d 991,  998 (1st  Cir. 1988),          ______________     _______          cert.  denied, 488 U.S.  1015 (1989); United  States v. Kobrosky,          _____  ______                         ______________    ________          711 F.2d 449, 454 (1st  Cir. 1983).  Rather, such a motion can be          granted before  sentencing only upon an affirmative  showing of a          "fair and  just reason."  Fed. R. Crim. P.  32(d).  The devoir of          persuasion as to  the existence of such  a reason rests  with the          defendant.   See United States  v. Gonzalez, 970  F.2d 1095, 1100                       ___ _____________     ________          (2d  Cir. 1992);  see  also  Fed.  R.  Crim.  P.  32(d)  advisory                            ___  ____          committee's note.                    To gauge  whether  the asserted  ground for  withdrawal          meets the Rule 32(d)  standard, a court must look  at the overall                                          4          situation, most  prominently (1) the plausibility  of the reasons          prompting the requested  change of  plea; (2) the  timing of  the          defendant's  motion;  (3) the  existence  or  nonexistence of  an          assertion  of innocence; and (4) whether, when viewed in light of          emergent circumstances, the defendant's plea appropriately may be          characterized as involuntary,  in derogation of  the requirements          imposed  by Fed. R. Crim.  P. 11,2 or  otherwise legally suspect.          See  Doyle, 981 F.2d  at 594; Pellerito,  878 F.2d at  1537.  And          ___  _____                    _________          there is  a final  barrier that  must be surmounted:   even  if a          defendant appears at first  blush to meet the strictures  of this          four-part  test, the  nisi prius  court still  must evaluate  the                                ____ _____          proposed  plea   withdrawal  in  relation   to  any  demonstrable          prejudice  that will accrue to the government if the defendant is          permitted to  alter  his stance.   See  Doyle, 981  F.2d at  594;                                             ___  _____          Pellerito, 878 F.2d at 1537.          _________                             B.  Applying the Framework.                             B.  Applying the Framework.                                 ______________________                    We  run  the gauntlet  of relevant  factors, discussing          them in sequence.                    1.  Plausibility of the Asserted Reasons.  A  defendant                    1.  Plausibility of the Asserted Reasons.                        ____________________________________          bent on withdrawing  a guilty plea ordinarily  must demonstrate a          plausible reason for  doing so.  See United States v. Tilley, 964                                           ___ _____________    ______          F.2d 66, 72 (1st Cir. 1992).   In this context, plausibility must                                        ____________________               2Three facets of  Rule 11 are  especially important in  this          respect.   Rule 11(c) prescribes, in exquisite detail, the advice          that a court must give  to a defendant who indicates a  desire to          enter  a  guilty plea.   Rule  11(d)  prescribes a  procedure for          ensuring  that any  plea  is voluntary  in  nature.   Rule  11(e)          outlines  a series  of  safeguards referable  to plea  agreements          between accuser and accused.                                          5          rest on more than the defendant's second thoughts about some fact          or point of  law, see  United States v.  Nichols, 986 F.2d  1199,                            ___  _____________     _______          1203  (8th Cir.  1993),  or  about  the  wisdom  of  his  earlier          decision, see United  States v.  Austin, 948 F.2d  783, 787  (1st                    ___ ______________     ______          Cir. 1991).  We do not think that either of appellant's proffered          reasons can vault this hurdle.                    a.  Refined to bare essence, appellant's flagship claim                    a.          is that, because the  government did not intend to  prosecute him          under count  2, he received nothing of  value in exchange for his          plea  to count  1.   This argument  prescinds from  a presentable          premise:  after all, we frequently have said that plea agreements          are contractual in nature.   See, e.g., United States  v. Atwood,                                       ___  ____  _____________     ______          963 F.2d 476, 479  (1st Cir. 1992); United  States v. Hogan,  862                                              ______________    _____          F.2d 386,  389 (1st Cir.  1988).   But this analogy  can only  be          carried  so far.  Any time a defendant pleads guilty, he receives          some built-in benefits,  cf., e.g.,  Corbitt v.  New Jersey,  439                                   ___  ____   _______     __________          U.S. 212,  224 n.14 (1978) (discussing  leniency usually accorded          to  defendants who  plead guilty  as opposed  to those  who stand          trial); U.S.S.G.   3E1.1 (making available  reduction in  offense          level  for acceptance  of  responsibility), and  so  long as  the          government does not make  a material misrepresentation, renege on          a promise, or breach the plea agreement, see, e.g., Santobello v.                                                   ___  ____  __________          New York,  404 U.S. 257, 262  (1971), we do not  believe that any          ________          further consideration is essential to support a guilty plea.                    In any  event, appellant  received the full  benefit of          his  bargain in this case.  The indictment made manifest, and the                                          6          plea  agreement confirmed,  the grand  jury's decision  to charge          appellant with two crimes,  not one.  Although appellant  had not                         ___          been arraigned on count 2,  that was a matter of mere  mechanics.          He  could have  been arraigned,  and, ultimately,  prosecuted, at          virtually any time.3  Thus, count  2 remained a viable option and          the   dismissal  of   it  benefitted  appellant.     Accordingly,          appellant's  first asserted  reason for  seeking to  withdraw his          plea lacks force.                    b.   As an  alternative reason, appellant  asserts that                    b.          the dismissal of count 2 did not amount to valuable consideration          because the two counts  of the indictment in reality  comprised a          single charge.  This assertion mischaracterizes the components of          the indictment and the relationship of the counts inter sese.                                                            _____ ____                    We do not dispute the  basic proposition on which  this          assertion is founded.   Indeed,  it is apodictic  that no  person          shall  "be subject  for  the  same offence  to  be  twice put  in          jeopardy of life or limb."  U.S. Const.,  amend. V.  To this end,          the  Double Jeopardy  Clause shields  a defendant  from a  second          prosecution for the same  offense after either an acquittal  or a          conviction,  and   also  shields   a   defendant  from   multiple                                        ____________________               3To  be sure, an overlong period of delay between indictment          and   arraignment  might   vitiate  the   prospects  for   future          prosecution.  See U.S.  Const. amend. VI; see also  United States                        ___                         ___ ____  _____________          v. Mala, 7  F.3d 1058, 1061 (1st Cir. 1993).  But the delay here,             ____          as of the time  appellant negotiated the plea agreement,  was not          overly  protracted.   And  in any  event,  even an  extraordinary          period of delay in arraigning  a defendant does not automatically          annul  an indictment, but merely  serves, if and  when raised, to          trigger an analysis of relevant factors that eventually  may lead          to a  dismissal of the charge.   See, e.g., Barker  v. Wingo, 407                                           ___  ____  ______     _____          U.S. 514, 530 (1972); Mala, 7 F.3d at 1062 n.3.                                ____                                          7          punishments for the same offense.  See Jones v. Thomas, 491  U.S.                                             ___ _____    ______          376, 380-81  (1989); United  States v. Rivera-Martinez,  931 F.2d                               ______________    _______________          148, 152 (1st Cir.), cert. denied,  112 S. Ct. 184 (1991).  Thus,                               _____ ______          an indictment may be regarded as repugnant to the Double Jeopardy          Clause  if it  charges a  single offense  in more  than a  single          count.  See  United States v. Lilly, 983 F.2d  300, 302 (1st Cir.                  ___  _____________    _____          1992).                    The  Supreme   Court  has  spoken  to   this  topic  in          unambiguous terms:                    The applicable rule  is that  where the  same                    act or transaction constitutes a violation of                    two distinct statutory  provisions, the  test                    to be applied to  determine whether there are                    two  offenses or  only  one, is  whether each                    provision requires proof of  a fact which the                    other does not.          Blockburger  v. United  States, 284  U.S. 299,  304 (1932).   If,          ___________     ______________          applying the  Blockburger test,  the crimes charged  are discrete                        ___________          offenses, the defendant may be prosecuted  for both offenses even          though they  arise out of  the same  conduct, but  if the  crimes          charged have  the same elements, or  if one is  a lesser included          offense of the other, double jeopardy  at some point will bar the          door.   See United States v.  Dixon, 113 S. Ct.  2849, 2857, 2860                  ___ _____________     _____          (1993); United  States v. Colon-Osorio,  10 F.3d  41, 45-46  (1st                  ______________    ____________          Cir. 1993).                    Under Blockburger, appellant's claim fails.  Count 1 of                          ___________          the indictment  requires a  showing that appellant,  after having          been convicted of a felony, transported  or possessed the firearm          discovered by  the police.  See  18 U.S.C.   922(g)(1).   Count 2                                      ___                                          8          requires a  showing that  Concepcion, rather than  appellant, had          been convicted  of a prior  felony, that Concepcion,  rather than          appellant, knowingly transported  or possessed  the firearm,  and          that appellant, rather  than Concepcion, aided  and abetted.   On          the allegations contained in that count, appellant could not have          been  convicted  under  section  922(g)(1), but  only  under  the          separate aiding and abetting statute, 18 U.S.C.   2(a).  Plainly,          then, the elements of  the two offenses are distinct  rather than          identical.   Hence, there is  no multiplicitousness.   See Colon-                                                                 ___ ______          Osorio, 10 F.2d at 45.          ______                    2.    Timing.   The timing  of a  motion to  withdraw a                    2.    Timing.                          ______          guilty  plea is  significant.   Delayed  requests,  even if  made          before  sentencing, are  generally regarded  with disfavor.   See                                                                        ___          Pellerito,  878 F.2d  at 1541.   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.  See Doyle, 981 F.2d at 595.                          ___ _____                    In  this  case,  appellant  waited  roughly six  months          before he moved to withdraw his plea.  And, moreover, his belated          change  of  heart followed  not  long after  the  PSI Report    a          document which contained, inter alia, information suggesting that                                    _____ ____          a stiff sentence loomed    arrived at the court's doorstep.4   In          appellant's case, then, a simple  chronology of events serves  to                                        ____________________               4The PSI  Report not  only suggested a  guideline sentencing          range of 188-235 months,  but also indicated that grounds  for an          upward  departure might  exist.   Appellant  filed his  motion to          withdraw shortly after  having had an opportunity to  examine the          report.                                          9          cast a long shadow  over the legitimacy of his  professed reasons          for  seeking  to  change  course.    Courts  need  not  accept  a          defendant's  explanations  uncritically.   See generally   United                                                     ___ _________   ______          States v. O'Brien, 14 F.3d 703, 708 (1st Cir. 1994) (reminding us          ______    _______          that "[t]here are limits to coincidence").                    3.   Claim  of  Innocence.   In  determining whether  a                    3.   Claim  of  Innocence.                         ____________________          proposed  plea  withdrawal  is   fair  and  just,  a  defendant's          assertion  of  innocence  may  weight  the  scales  in  favor  of          withdrawal, and conversely,  the absence of a  claim of innocence          weights  the opposite pan of the scales.   See Doyle, 981 F.2d at                                                     ___ _____          596; Kobrosky, 711  F.2d at  455.  Appellant  derives no  comfort               ________          from this  tenet.  In his  motion papers, he did  not profess his          innocence.    Thus, this  factor  cuts  sharply against  allowing          appellant's motion to withdraw his guilty plea.                    4.  Other Considerations.  Other considerations can, of                    4.  Other Considerations.                        ____________________          course,  influence  whether  a  defendant should  be  allowed  to          withdraw   a  guilty  plea.     Here,  however,   we  discern  no          miscellaneous considerations that counsel in favor  of permitting          appellant  to withdraw  his plea.   To  the contrary,  the record          discloses that appellant entered  the plea voluntarily, with full          knowledge of the  terms of  the plea agreement,  see Austin,  948                                                           ___ ______          F.2d  at 787, and under  circumstances wherein the plea evidenced          an intentional relinquishment of a known right.                    Furthermore,   despite   the  AUSA's   misstatement  at          arraignment, the key facts were at  appellant's disposal from the          very  outset.  The indictment itself was crystal clear.  The plea                                          10          agreement was  pellucid in  its  description of  the two  counts.          Then, too, the  court explained matters fully  during the change-          of-plea  hearing   and  appellant  assured  the   court  that  he          understood  both  the agreement  (which  he had  signed)  and the          consequences of the ensuing plea.  He also assured the court that          he entered into  the plea and the plea agreement  of his own free          will.                    We will  not paint the lily.   It is the  policy of the          law to  hold litigants to  their assurances.   As we wrote  in an          analogous case, "[w]e  will not  permit a defendant  to turn  his          back  on his own representations  to the court  merely because it          would  suit his convenience  to do so."   Pellerito, 878  F.2d at                                                    _________          1539.  So it is here.          III.  CONCLUSION          III.  CONCLUSION                    We need go no  further.5  Given reasons for  withdrawal          that are lacking in plausibility, an  extended time lapse between          the original plea and the motion to withdraw, the  absence of any          assertion of innocence, the district court's scrupulous adherence          to the  dictates of Rule  11, and  the totality of  the attendant          circumstances, we  discern no  hint of  discretion abused  in the          court's refusal to permit appellant to withdraw his  guilty plea.          To be blunt, appellant had no entitlement to a second bite of the          fig   and we will not afford him one.                                        ____________________               5Because appellant has utterly failed to  present a fair and          just reason  for plea withdrawal,  we need  not discuss  possible          prejudice to  the government.   See Doyle, 981  F.2d at 596  n.6;                                          ___ _____          Buckley, 847 F.2d at 998 n.5.          _______                                          11          Affirmed.          Affirmed.          ________                                          12
