    [NOT FOR PUBLICATION -- NOT TO BE CITED AS PRECEDENT]

         United States Court of Appeals
                    For the First Circuit


No. 98-1919

                  UNITED STATES OF AMERICA,

                     Plaintiff, Appellee,

                              v.

                  MARK DANIEL MARIN-CANALES,

                    Defendant, Appellant.


No. 98-1920

                  UNITED STATES OF AMERICA,

                     Plaintiff, Appellee,

                              v.

                 ALEXANDER RODRIGUEZ-MIRANDA,

                    Defendant, Appellant.




        APPEALS FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

        [Hon. Hector M. Laffitte, U.S. District Judge]


                            Before

                    Torruella, Chief Judge,
                Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.
     Zygmunt G. Sominski on brief for appellant Mark Daniel
Marin-Canales.
     Carmen R. De Jesus on brief for appellant Alexander
Rodriguez-Miranda.
     Camille Velez-Rive, Assistant United States Attorney,
Guillermo Gil, United States Attorney, and Jorge E. Vega-
Pacheco,    Assistant United States Attorney, on brief for
appellee.




                      April 24, 2000
       COFFIN, Senior Circuit Judge.        Defendants-appellants Mark

Daniel Marin-Canales and Alexander Rodriguez-Miranda request

that   this   court   vacate    their    pleas   of    guilty    to    cocaine

possession    charges   and    challenge    various     aspects       of   their

sentences.    Finding no errors in the trial court's acceptance of

defendants' guilty pleas or imposition of their sentences, we

affirm.

                        I.    Factual Background

       On May 9, 1997, a United States Customs Service airplane

observed a low-flying Cessna 210 aircraft proceeding from South

America into the United States.         The aircraft entered the United

States over Ponce, Puerto Rico, and it was pursued to the

vicinity of Cidra, Puerto Rico, although it evaded pursuers by

flying    under   electrical    wires.       The      Puerto    Rico       Police

Department received three anonymous calls collectively stating

that a low-flying plane was throwing out bales to a farm in

Cidra where a Mitsubishi Expo van and a BMW waited and that some

of the bales had been placed in the trunk of the BMW.                  At least

one caller provided the license plate numbers of the vehicles.

       The Puerto Rico police first located the BMW, occupied by

Marin and another participant, and upon stopping and searching

it, discovered 28 kilograms of cocaine in the trunk wrapped

identically to the 150 kilograms of cocaine found on the farm.


                                   -4-
The van, occupied by Rodriguez and another participant, was

subsequently   stopped       and    two    nine-millimeter       semi-automatic

pistols were later found by a subcontractor maintaining the

impounded vehicle for the United States Customs Service.

    Both defendants entered into plea agreements with the United

States under which they pled guilty to possession with intent to

distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), in

exchange for the dismissal of other counts.1              In each, there was

no agreement as to the defendant's criminal history category

(CHC).   Marin's plea agreement stated that if his CHC were I and

if he qualified for the "safety valve" provision of U.S.S.G. §

5C1.2,2 the pertinent sentencing range would be 87 to 108 months

and the government would recommend 87 months.                 Rodriguez's plea

agreement    stated    that    if    his    CHC   were   I,    the     applicable

sentencing range would be 168 to 210 months and the government

would    recommend    168.     Both       agreements     spoke    in    terms   of

contingencies – in both, the defendant was promised only that

the government would recommend a sentence at the lower end of



    1Marin pled guilty to count IV of the five-count indictment,
which charged possession of 28 kilograms of cocaine, and
Rodriguez pled guilty to count V, which charged possession of
150 kilograms.
    2The "safety valve" provision releases the minimum mandatory
sentence when a defendant meets certain criteria, including
having a CHC of I. See U.S.S.G. § 5C1.2(1).

                                      -5-
the applicable range, whatever that might be.               Both defendants

agreed that their sentences would be within the sound discretion

of the sentencing judge and would be imposed in accordance with

the Sentencing Guidelines.3

       The court accepted defendants' guilty pleas and sentenced

them       pursuant     to   the   United   States   Sentencing   Guidelines.

Because Marin's CHC was II, he was not eligible for the safety

valve and the applicable sentencing range was 121 to 151 months.

The court accepted the government's recommendation of a sentence

at the lower end, 121 months.               Because Rodriguez's CHC was II,

the applicable sentencing range was 188 to 235 months.                    The

court accepted the government's recommendation of 188 months.

             II.    Denial of Rodriguez's Motion to Suppress

       Prior       to   pleading     guilty,    Rodriguez   moved   for   the

suppression of his warrantless arrest and all evidence flowing

from the arrest, arguing that the arrest was effected without

probable cause in            violation of his Fourth Amendment rights.

See Beck v.         Ohio, 379 U.S. 89, 91 (1964). The court denied



       3
      Both agreements explained that "defendant . . . is aware
that his sentence is within the sound discretion of the
sentencing judge and will be imposed in accordance with the
United States Sentencing Guidelines."    Marin's plea agreement
also declared: "Defendant . . . is fully aware . . . that if his
criminal history is greater than I, his sentence will be
increased accordingly, and that the Court is not bound by this
plea agreement."

                                        -6-
Rodriguez's motion and he subsequently entered into the plea

agreement.      It   is   well   established   that    by   entering   an

unconditional    guilty    plea,    a    defendant    waives   all   non-

jurisdictional defects.     See Tollett v. Henderson, 411 U.S. 258,

267 (1973) (explaining that after a defendant has pled guilty,

"he may not thereafter raise independent claims relating to the

deprivation of constitutional rights that occurred prior to the

entry of the guilty plea"); Acevedo-Ramos v. United States, 961

F.2d 305, 307 (lst Cir. 1992) ("It is clear that a plea of

guilty to an indictment is an admission of guilt and a waiver of

all non-jurisdictional defects.").        Because the issues raised by

Rodriguez are non-jurisdictional, he has waived the opportunity

for appellate review by entering an unconditional guilty plea.4

        III.    Voluntariness of Defendants' Guilty Pleas

    Both defendants seek to have their guilty pleas vacated due

to what they define as defects in the plea hearing proceedings,

allegedly in violation of Fed. R. Crim. P. 11.              The advisory

committee's note to Fed. R. Crim. P. 32, which authorizes plea


    4After filing his brief, Marin requested that he be allowed
to adopt the arguments made by Rodriguez with regard to the
motion to suppress. Because Marin was not a party to the motion
to suppress, he cannot appeal its denial or raise the issues it
presented. See Playboy Enters., Inc. v. Public Serv. Comm'n of
Puerto Rico, 906 F.2d 25, 40 (lst Cir. 1990) (arguments not made
before district court or raised too late on appeal are waived).
Even if he had been a party to the motion, his arguments were
waived when he pled guilty, as we have explained.

                                   -7-
withdrawal motions, explains that when a defendant moves for the

first time on direct appeal to set aside his guilty plea, "the

applicable standard is that stated in Hill v. United States, 368

U.S. 424 (1962): 'a fundamental defect which inherently results

in    a   complete    miscarriage   of     justice'    or   'an    omission

inconsistent with the rudimentary demands of fair procedure.'"

Fed. R. Crim. P. 32 advisory committee's note; see also Fed. R.

Crim. P. 11(h) ("Any variance from the procedures required by

this rule which does not affect substantial rights shall be

disregarded.").       We acknowledge, as we did in United States v.

Carrington, 96 F.3d 1 (lst Cir. 1996), that the standard upon

which we base our review of the defendant's request to vacate

his   guilty   plea   is   "'somewhat     cloudy.'"   See   id.   at   5   n.2

(quoting United States v. Martinez-Martinez, 69 F.3d 1215, 1219

(lst Cir. 1995)).      In other cases, we have applied the harmless

error standard.       See, e.g., United States v. Parra-Ibanez, 936

F.2d 588, 598 & n.24 (lst Cir. 1991).          Because we find no error

at all in the Rule 11 proceedings, we need not decide this

issue.

      We consider primarily four factors when reviewing a request

to withdraw a guilty plea:

      (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

                                    -8-
    viewed in light of the emergent circumstances, the
    defendant's plea appropriately may be characterized as
    involuntary, in derogation of the requirements imposed
    by Fed. R. Crim. P. 11, or otherwise legally suspect.

United States v. Parrilla-Tirado, 22 F.3d 368, 371 (lst Cir.

1994) (footnote omitted).

    Regarding the first factor, defendants proffer no particular

reason    for   requesting   changes      of   plea,   other   than    alleged

involuntariness.       Second, their requests were made thirteen

months after their change of plea hearings and nine months after

sentencing without explanation for the delay.5 We have explained

that "the more a request is delayed – even if made before

sentence is imposed – the more we will regard it with disfavor."

United States v. Isom, 85 F.3d 831, 838 (lst Cir. 1996).                Third,

defendants do not assert their innocence, which weights the

balance against allowing them to withdraw their pleas.                 See id.

at 839.

    Mindful      of   the   fact   that    defendants    start   from     this

disadvantaged point, we consider the final factor.                    Our main

concern here is whether defendants' guilty pleas were "knowing,


    5Although both defendants filed notices of appeal in June
1998, they did not allege error in the Rule 11 proceedings until
filing their March 1999 statement of issues. We recognize that
the delay in receiving transcripts hindered some aspects of
defendants' arguments with regard to the Rule 11 proceedings,
but other aspects – for example, that the plea agreements were
misleading – could easily have been identified prior to the
receipt of transcripts.

                                    -9-
voluntary and intelligent within the meaning of [Federal Rule of

Criminal Procedure] 11."       United States v. Cotal-Crespo, 47 F.3d

1, 3 (lst Cir. 1995).       Fed. R. Crim. Pro. 11(d) states:

    The court shall not accept a plea of guilty or nolo
    contendere without first, by addressing the defendant
    personally in open court, determining that the plea is
    voluntary and not the result of force or threats or of
    promises apart from a plea agreement. The court shall
    also inquire as to whether the defendant's willingness
    to plead guilty or nolo contendere results from prior
    discussions between the attorney for the government
    and the defendant or the defendant's attorney.

The rule encompasses three "core concerns": "1) absence of

coercion; 2) the defendant's understanding of the charges; and

3) the defendant's knowledge of the consequences of the guilty

plea."

United   States   v.   Gray,    63   F.3d   57,   60   (lst     Cir.   1995).

Furthermore,   we    review    the   "totality    of   the     circumstances

surrounding the Rule 11 hearing, rather than apply a 'talismanic

test.'" Cotal-Crespo, 47 F.3d at 4-5 (citation omitted).

    A.    Rodriguez

    Defendant Rodriguez makes only general allegations that the

court erred in accepting his guilty plea and points us to no

specific error.      Assuming that he has preserved this argument,

we peruse the Rule 11 proceedings for general error and we find

none.     Instead,     we   discover    that   the     court    conducted   a




                                     -10-
"comprehensive inquiry," akin to that upheld in Isom, 85 F.3d at

835-37.

      The court ascertained that Rodriguez had signed the petition

to   change   his     plea    to   guilty,     had     fully    answered       a   plea

questionnaire, and had signed the plea agreement.                          Rodriguez

responded affirmatively to the court's questions about whether

he had discussed the indictment against him with his counsel,

whether he understood the nature of the charge to which he was

pleading    guilty,     and    whether    he   understood        that     he   waived

certain fundamental rights by pleading guilty (such as the

rights to remain silent, be assisted by counsel, confront and

cross-examine witnesses against him, present witnesses on his

own behalf, and       hold the prosecution to its burden of proving

him guilty beyond a reasonable doubt).                     After this, Rodriguez

confirmed     that    he     had   no    doubts      about     pleading        guilty.

Rodriguez     affirmatively         answered         the    court's       particular

questions     about    his    understanding       of   the     way   in   which     his

sentence would be determined and that a 168 month sentence was

contingent upon a CHC of I.             Further, Rodriguez indicated that

he understood that the only agreement was that which was in

writing, that the plea agreement had been translated to him,

that he had not been intimidated, threatened, or coerced in




                                        -11-
regard to his guilty plea, and that he pled guilty freely,

willingly, knowingly, and voluntarily.

      Thus, the court addressed the three core concerns that must

be considered when a defendant wishes to enter a guilty plea;

the court's questions confirmed that Rodriguez had not been

coerced, that he understood the charges, and that he understood

the   consequences   of    his   guilty   plea,   including   sentencing

procedures and possibilities.

      B.   Marin

      Defendant    Marin   makes   more   particularized      contentions

regarding the Rule 11 proceeding.          He asserts that the court

erred by setting deadlines for the filing of a change of plea

petition that created undue pressure on him, making improper

comments during the hearing, failing to correctly apprise him of

the sentence he faced, neglecting to inquire about his failure

to answer three questions on the plea questionnaire, and failing

to order a presentence investigation prior to the acceptance of

his plea.

      First, Marin complains about the plea filing deadlines set

by the court pursuant to Fed. R. Crim. P. 11(e)(5).            Defendants

were indicted on May 14, 1997, and pled not guilty on that date.

The docket reflects that on January 27, 1998, the court set a

deadline for change of plea petitions of February 4, due to an


                                   -12-
impending trial date of February 9.           On February 6, Marin filed

his request.     In short, Marin had nearly nine months from his

indictment and entry of a not guilty plea until the deadline to

change his plea, the court set a necessary deadline just prior

to trial, and Marin apparently made no effort to seek additional

time.

       Second, the specific comments of the court that Marin

complains of, to the effect that he had a good attorney, could

not have indicated to Marin that he would receive a particular

sentence nor could it have coerced Marin's plea in any way.              The

court very clearly explained to Marin, and Marin acknowledged

that    he   understood,   that   the    87   month   sentence   would    be

applicable only if he had a CHC of I and qualified for the

safety valve.     Further, the court asked Marin three times if he

understood that if he failed to comply with the safety valve,

his minimum term of imprisonment would be 120 months, to which

Marin responded affirmatively.          Marin relies on United States v.

Padilla, 23 F.3d 1220 (7th Cir. 1994), in which we suggested

that the appropriate remedy when a defendant was never informed

on a mandatory minimum was to allow the defendant to withdraw

his guilty plea.       See id. at 1224.           In the instant case,




                                  -13-
however, the court did apprise defendant of a 120 month minimum,

only one month less than defendant's actual sentence.6

    Third, the three questions of the forty-four question plea

questionnaire which Marin failed to answer pertained to whether

he had been coerced, or induced by promises, to enter a plea of

guilty.    Nevertheless, at Marin's change of plea hearing, the

court questioned him as to whether he had been intimidated,

coerced,   or   forced    into   pleading    guilty   by   anyone,    and   he

responded negatively.

    Fourth, Marin alleges that the court erroneously failed to

order a presentence investigation prior to accepting his plea,

relying on U.S.S.G. § 6B1.1(c), which states that the court

"shall defer its decision to accept or reject any nonbinding

recommendation pursuant to Rule 11(e)(1)(B), and the court's

decision to accept or reject any plea agreement pursuant to

Rules   11(e)(1)(A)      and   11(e)(1)(C)   until    there    has   been   an

opportunity to consider the presentence report."              The commentary



    6Marin’s argument suggests that of the defendant in United
States v. Hernandez-Wilson, 186 F.3d 1 (lst Cir. 1999), in which
we agreed with the defendant that the court had misled him to
believe that he was eligible for the safety valve provision.
See id. at 6. In that case, however, the prosecutor, defense
counsel, and the court believed the defendant was eligible for
the safety valve and the court indicated that if defendant
complied with certain conditions he would be eligible for the
safety valve, although ultimately his criminal history category
prevented him from qualifying. See id. at 5-6.

                                    -14-
to the Guideline states that it is intended to parallel Rule

11(e),    outlining     plea   agreement      procedure.     As    the   Fourth

Circuit has explained, the Guidelines take this stance in order

to "carry out the Congressional intent that prosecutors do not

undermine the workings of the Sentencing Guidelines."                    United

States v. Ewing, 957 F.2d 115, 117 (4th Cir. 1992).

    In United States v. Sanchez-Barreto, 93 F.3d 17 (lst Cir.

1996), responding to the same argument, we explained that the

flaw in the defendant's argument was that "he offers no reason

for equating acceptance of his guilty plea with the acceptance

of a plea agreement under § 6B1.1(c)."               Id. at 24;      see also

Ewing, 957 F.2d at 118 (same).               Here, when accepting Marin's

guilty plea at the change of plea hearing, the court repeatedly

emphasized that his sentence was not definite and would be

determined at his sentencing hearing.              By sentencing Marin in

accord    with    the   Sentencing    Guidelines,    after   reviewing      his

presentence report, the court fully accepted the plea agreement

at the sentencing hearing.                   In addition, Marin has not

explained how his interpretation of U.S.S.G. § 6B1.1(c) can be

aligned    with    Fed.   R.   Crim.    P.    32(b)(3),    which    prohibits

disclosure of a presentence report unless the defendant has

consented, pled guilty or nolo contendere, or been found guilty,

other     than    to    suggest      that    requiring     the    presentence


                                      -15-
investigation at the change of plea hearing would benefit the

defendant.        See Sanchez-Barreto, 93 F.3d at 25 ("The overarching

purpose served by the PSR is to assist the district court at

sentencing.").7           The district court's procedure was entirely in

accord with the Sentencing Guidelines as well as the Federal

Rules of Criminal Procedure.

       Finally,      Marin      alleges   that   his    plea   was   involuntary.

Again, a review of the transcript of the proceedings establishes

that       the   court    engaged   in    a   comprehensive    inquiry.     Marin

stated, in response to the court's questioning, that he had

completed one year of college, that he had not consumed any

medication or alcohol in the prior twenty-four hours, and that

he   understood          the   proceedings.      He    acknowledged    having   an

understanding of the indictment, satisfaction with his counsel's

performance, and awareness of the fundamental rights he was

waiving by pleading guilty. In addition, the court took pains to

explain the sentencing possibilities to Marin, which were laid

out in the plea agreement, and which Marin affirmed that he

understood.        Further, the court complied with Fed. R. Crim. P.


       7
      Marin makes the related argument that the court erred
because it accepted the plea agreement before his CHC was
determined.   As just explained, the court did not accept the
plea agreement until sentencing when Marin's CHC was determined.
Further, the plea agreement explicitly stated that the parties
did not agree on Marin's CHC and based all subsequent sentencing
provisions on the contingency that his CHC would be I.

                                          -16-
11(f), contrary to Marin's claims, by determining that there was

a factual basis for his plea.             See, e.g., United States v.

Martinez-Martinez, 69 F.3d 1215, 1220 (lst Cir. 1995) ("If,

during the plea colloquy, the government's statement or the

defendant's own version of the facts sets forth all elements and

conduct of the offense, admission to that conduct sufficiently

establishes the defendant's understanding of the charge.").

Again,   the   court   addressed   the    three   core   concerns   –   that

Rodriguez had not been coerced, that he understood the charges,

and that he comprehended the consequences of his guilty plea.

    In conclusion, we hold that both defendants entered their

guilty pleas knowingly, intelligently, and voluntarily.                 They

have failed to establish any reason why their guilty pleas

should be withdrawn.

                           IV.     Sentencing

    Both defendants assert that the court made various errors

at sentencing.     "We have repeatedly stated in the sentencing

context, as well as in other areas, that issues not presented to

the district court will not be addressed for the first time on

appeal."    United States v. Haggert, 980 F.2d 8, 10 (lst Cir.

1992).     By not raising their arguments before the district




                                   -17-
court, defendants have waived many of their arguments.8                     The one

exception regards their requests for downward departures in

their criminal history categories.                  Only when a sentencing

court's decision not to depart is based upon a mistaken view

that it lacks authority do we have jurisdiction to review it.

See United States v. Leblanc, 24 F.3d 340, 348 (lst Cir. 1994).

      Both defendants argued to the district court that their CHCs

be reduced to I pursuant to U.S.S.G. § 4A1.3 because their

criminal history categories overrepresented the seriousness of

their     criminal      pasts   and    the    likelihood    of    future    crimes.

Rodriguez suggested that his CHC of IV was excessive because

several     of    the    convictions     were    for   juvenile      offenses      or

misdemeanors.        The district court agreed with Rodriguez to an

extent, reducing his CHC to II rather than I.                    In Marin's case,

the   court      refused   to   make    the    departure,    stating       that   the

Guidelines dictated the sentence "unless there is reason to

depart or I find some reason to [grant] a downward departure in



      8
     Marin complains that the court in effect vacated a binding
plea agreement between himself and the prosecutor.          This
argument is baseless because the plea agreement itself stated
that its sentencing recommendations were not binding on the
court.  Further, the plea agreement did not purport to set a
definite sentence in the event that his CHC was not I.
Moreover, in the plea agreement, Marin admitted to understanding
that if his CHC was not I and he did not qualify for the safety
value provision, he would face a minimum mandatory sentence of
120 months.

                                        -18-
this case." By making the departure in Rodriguez's case, the

same   day   that   he   sentenced    Marin,   the   court   revealed   its

understanding of its authority.        See, e.g., id. (concluding that

sentencing court understood that it had authority to depart

because it entertained the defendant's argument before denying

departure).




                                     -19-
                 V.   Ineffective Assistance of Counsel

      Lastly, Marin claims that he was denied the effective

assistance of counsel in violation of his Sixth Amendment right.

"We have held with a regularity bordering on the monotonous that

fact-specific claims of ineffective assistance cannot make their

debut on direct review of criminal convictions, but, rather,

must be presented to, and acted upon by, the trial court."

United States v. Mala, 7 F.3d 1058, 1063 (lst Cir. 1993) (citing

cases).    We have allowed exceptions only when the facts are not

in dispute and the record is sufficiently developed for us to

make a reasoned evaluation of the defendant's claims.                  See id.

      In   the   instant    case,    the    record    is   not   sufficiently

developed to permit reasoned consideration of Marin's claims.

His   allegations,     consisting    mainly    of    counsel's    failure     to

secure a CHC in the plea agreement, to bring attention to

Marin's    failure    to   respond   to    three    questions    in   the   plea

questionnaire, and to seek to set aside Marin's guilty plea

after it became evident that his CHC would be II not I, are

neither based on undisputed facts nor sufficiently developed for

this court to pass judgment on counsel's performance.                       This

claim must be brought first before the district court via a

request for post-conviction relief.

                              VI. Conclusion


                                     -20-
     We hold that the issues raised in Rodriguez's appeal of the

denial of his motion to suppress have been waived.      Further, we

deny defendants' requests to withdraw their guilty pleas because

we   conclude   that   they   were     entered   into   knowingly,

intelligently, and voluntarily.      We also find no errors in the

court's sentencing of defendants.      Finally, we dismiss Marin's

ineffective assistance of counsel claim without prejudice.




                              -21-
