
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 96-1588                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                     PEDRO MURIEL A/K/A PEDRO JUAN REYES-MURIEL,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Scott A. Lutes for appellant.            ______________            Margaret E.  Curran, Assistant United  States Attorney, with  whom            ___________________        Sheldon  Whitehouse,  United  States Attorney,  and  Zechariah Chafee,        ___________________                                  ________________        Assistant United States Attorney, were on brief for appellee.                                 ____________________                                     May 5, 1997                                 ____________________                      BOWNES, Senior Circuit Judge.   Defendant-appellant                      BOWNES, Senior Circuit Judge.                              ____________________            Pedro  Muriel  appeals the  district  court's  denial of  his            motion to withdraw his plea of guilty.  We affirm.                                            BACKGROUND                                      BACKGROUND                      Muriel  was arrested  during  the  execution  of  a            warrant to  search his  girlfriend's apartment.   When police            entered  the  apartment on  September  14,  1995, they  found            Muriel  standing in a  bedroom in his  underwear and reaching            toward  the bed, upon which  police found a  loaded Smith and            Wesson 10-millimeter  handgun under a pillow.   Muriel claims            that he was not reaching for the gun but for his pants.                        Police had obtained the  warrant to search the two-            bedroom  apartment  rented  by  Muriel's  girlfriend,  Ingrid            Ostos, on  the basis  of information  provided by  a reliable            informant previously used by  the police.  In the  bedroom in            which they found Muriel and the gun, police also found $1,065            in cash in a nightstand, an ammunition box containing sixteen            live .45  caliber rounds, and some  personal papers belonging            to  Muriel and  Ostos.   In the  other bedroom  they  found a            plastic bag holding twenty-three glassine  packets containing            traces of heroin and a small electronic scale.                        Muriel  had previously  been  convicted  for  other            offenses.   At  the  time he  was arrested,  he was  facing a            pending  violation of  a  probationary term  and a  suspended            sentence  in Rhode  Island Providence County  Superior Court.                                         -2-                                          2            In  the case  at bar,  Muriel was  indicted on  three counts:            Count I,  violation  of 21  U.S.C.    841(a)  (possession  of            heroin with intent to distribute),  Count II, violation of 18            U.S.C.   924(c)(1) (using or carrying a firearm during and in            relation  to   a  drug-trafficking  crime),  and  Count  III,            violation  of  18  U.S.C.     922(g)  by  being a  "felon-in-            possession" (i.e., possession of  a firearm after having been            convicted of a felony).   Muriel entered a plea of not guilty            to the charges at his arraignment, and the case was placed on            the  trial calendar for December 1995.  On November 30, 1995,            the  parties signed a plea agreement pursuant to Federal Rule            of Criminal Procedure 11(e)(1)(B),  in which Muriel agreed to            plead guilty  to Count  III (the  felon-in-possession charge)            and the government agreed  to drop the other two  charges and            recommend  to the court that  Muriel be sentenced  at the low            end  of the applicable guideline  range.  The government also            orally  agreed  not to  oppose  a  three-level reduction  for            acceptance of responsibility.                      Between the  time the  plea agreement was  accepted            and Muriel's sentencing, the  Supreme Court decided Bailey v.                                                                _________            United  States, 116  S.  Ct. 501  (1995),  which altered  the            ______________            prevailing interpretation of  the term "use"  in 18 U.S.C.               924(c)(1),  one  of  the   offenses  with  which  Muriel  had            originally  been  charged,  but  which  was  dropped  by  the            government  pursuant  to the  plea  agreement.   18  U.S.C.                                           -3-                                          3            924(c)(1) provides,  in relevant  part, that any  person who,            "during  and in  relation to  any crime  of violence  or drug            trafficking crime . . . uses  or carries a firearm, shall . .            .  be sentenced to imprisonment for five years  . . . ."   In            Bailey, the Supreme  Court held that, in  order to constitute            ______            an offense under the  "use" prong of   924(c)(1),  there must            be evidence  of  "active  employment" of  a  firearm  in  the            commission  of the  predicate offense;  mere possession  of a            firearm by  a person committing an offense is not sufficient.            Id. at 505.    At  the sentencing  hearing  on  February  23,            ___            1996, Muriel  moved to vacate his  plea of guilty so  that he            could move to  suppress evidence seized during  the search of            September 14, 1995.   The district  court denied the  motion,            and Muriel was subsequently  sentenced to thirty-three months            in  prison, a three-year period of  supervised release, and a            fine of $7,130.80.  He then timely filed this appeal.                        Muriel wants to withdraw his plea of  guilty to the            felon-in-possession  charge.    He  argues that  he  did  not            receive the benefit of his bargain in pleading guilty to this            charge because the Supreme Court's decision in Bailey, handed                                                           ______            down after Muriel had pled  guilty pursuant to the agreement,            would nullify the 18  U.S.C.   924(c)(1) charge, Count  II of            the indictment, which was  dropped by the government pursuant            to  the plea agreement.  Muriel argues further that since the            sentencing court was not convinced by a fair preponderance of                                         -4-                                          4            the evidence on Count I, Count III is the  only viable charge            left against him.  Appellant's Br. at 8.                        Muriel does  not request  a trial; indeed,  he does            not profess his  innocence, but  wishes to file  a motion  to            suppress evidence  in order  to challenge the  affidavit upon            which  the search warrant which  led to the  discovery of the            gun  was based.    Muriel thus  contends  that he  should  be            permitted to  withdraw  his guilty  plea  in order  to  avail            himself of another strategy in his defense.                                        ANALYSIS                                       ANALYSIS                      Muriel makes  two arguments  on appeal.   First, he            contends  that the  district court  abused its  discretion in            denying  his motion  to  withdraw  his  plea because  he  has            asserted a fair and just reason for doing so.  Second, Muriel            contends  that the  district court  committed clear  error in            sentencing  him  by denying  him  a  downward adjustment  for            acceptance of responsibility.                                          I.                                          I.                      Muriel moved  to vacate  his guilty plea  before he            was  sentenced.   Federal Rule  of Criminal  Procedure 32(e),            which governs  plea withdrawals,  states, in  pertinent part:            "If a motion to withdraw a  plea of guilty or nolo contendere            is  made before sentence is imposed, the court may permit the            plea to be withdrawn if the defendant shows any fair and just            reason."  A  defendant has  no absolute right  to withdraw  a                                         -5-                                          5            guilty plea.   See United  States v. Isom,  85 F.3d  831, 834                           ___ ______________________            (1st Cir.  1996); United  States v. Ribas-Dominicci,  50 F.3d                              _________________________________            76,  78  (1st  Cir.  1995).   Moreover,  a  district  court's            decision granting or  denying a motion  to withdraw a  guilty            plea  may  be reversed  only  upon  a demonstrable  abuse  of            discretion.   See United  States v. Sanchez-Barreto,  93 F.3d                          ___ _________________________________            17, 23 (1st Cir. 1996), cert. denied sub nom. Arroyo-Reyes v.                                    _____ ______ ___ ____ _______________            United  States,  117  S.  Ct. 711  (1997);  United  States v.            ______________                              _________________            Parrilla-Tirado, 22 F.3d 368, 371 (1st Cir. 1994).                 _______________                      We  have  employed  four  criteria  in  determining            whether a defendant has asserted a "fair and just" reason for            withdrawing 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  viewed  in  the  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, or otherwise legally suspect.              Sanchez-Barreto, 93  F.3d at  23.  The  fourth consideration,            _______________            which  hinges on whether the plea was knowing, voluntary, and            intelligent,  is most  significant.  Ribas-Dominicci, 50 F.3d                                                 _______________            at 78.                        If, under this analysis, the defendant successfully            meets  his burden of demonstrating a fair and just reason for            withdrawing  his plea,  the  court must  inquire whether  the                                         -6-                                          6            government will suffer  any demonstrable  prejudice from  the            withdrawal of  the plea.   Parrilla-Tirado, 22  F.3d at  371.                                       _______________            Because  we find that Muriel  does not meet  his burden under            this analysis,  however, we need not address  the question of            prejudice.  See id. at 373  n.5; United States v. Doyle,  981                        ___ ___              ______________________            F.2d 591, 596 n.6 (1st Cir. 1992).              (1)  Plausibility            (1)  Plausibility                      Muriel  must  demonstrate  a  plausible  reason for            withdrawing his guilty plea.  See Parrilla-Tirado, 22 F.3d at                                          ___ _______________            371.    Plausibility  cannot  just rest  on  Muriel's  second            thoughts "'about  some fact or a  point of law, or  about the            wisdom  of  his earlier  decision.'"   Isom,  85 F.3d  at 837                                                   ____            (quoting Parrilla-Tirado, 22 F.3d at 371).  Our review of the                     _______________            record supports the district court's assessment that Muriel's            change  of  heart, while  "understandable,"  was  prompted by            second thoughts about the wisdom of his decision to enter the            plea agreement rather than file a motion to suppress evidence            of the  gun.  Memorandum  and Order of  March 19, 1996  at 4.            Muriel  advances  the  following  as  plausible  reasons  for            withdrawing  his plea: (1) his motion to withdraw was not the            product of  second thoughts  but was  prompted by  the Bailey                                                                   ______            decision; (2) an alleged defect in the warrant makes his plea            suspect;  and  (3)  the plea  bargain  ceased  to  be to  his            benefit.  We find none of these to be plausible reasons.                                                           -7-                                          7                      By his own admission Muriel had second thoughts all            along about his  strategic choice to plea bargain  because he            had doubts about  the sufficiency of the  evidence upon which            the search warrant  was based.   But Muriel  made a  tactical            decision to forgo the warrant challenge because, at the time,            he thought it was  in his best interests to  secure dismissal            of the  most  serious  charge, 18  U.S.C.     924(c)(1)  (the            "Bailey   charge"),  which  carries   a  five-year  mandatory             ______            sentence.   Appellant's  Memorandum in  Support of  Motion to            Vacate  Plea of Guilty at 2.  Nearly three months later, when            Muriel concluded  that circumstances had changed  such that a            potential motion to  suppress seemed to be  a better strategy            than his plea bargain, he decided that withdrawal of his plea            was  in  order.   But,  as  we  have  already stated,  second            thoughts do not constitute a plausible reason for withdrawal.                      Muriel  also argues that  the information contained            in  the affidavit  in  support  of  the  search  warrant  was            insufficient to establish probable cause, and  that this is a            plausible  reason for  withdrawing his  plea.   Specifically,            Muriel contends  that the warrant "contained  lies," and that            this  renders  his  plea  and conviction  "legally  suspect."            Appellant's  Br. at 12.   But, as the  district court pointed            out,  Muriel has  not  met his  burden  of showing  that  the            affidavit did not sustain a finding of probable cause for the                                         -8-                                          8            warrant.   Memorandum  and  Order of  March  19, 1996  at  5.            Muriel has neither demonstrated  that, under the "totality of            the  circumstances" test,  the  information contained  in the            affidavit does not  show that there  was "a fair  probability            that contraband or  evidence of a crime"  would be discovered            at a specific  place, Illinois  v. Gates, 462  U.S. 213,  238                                  __________________            (1983), nor presented evidence of "deliberate falsehood or of            reckless  disregard for the truth" on the part of the affiant            detective, Franks v. Delaware, 438 U.S. 154, 171 (1978).                         __________________                      Aside  from  the  affidavit  itself  and  his  bare            allegations  that  the   affidavit  contained  lies   by  the            informant and  misstatements by the  investigating detective,            Muriel  offers  no proof  that  probable cause  to  issue the            warrant was lacking.   On the facts before us,  we cannot say            that the  district court  abused its discretion  in rejecting            Muriel's  argument that deficiencies  in the warrant rendered            his plea legally suspect.1    We  add  that  Muriel   has  no            argument  that he was   previously deprived of  the chance to            file  a  motion to  suppress because  he  was unaware  of the            facts.  To  the contrary, Muriel's decision to  plead guilty,            rather  than  file  a  motion to  suppress,  was  a  tactical            decision made months  before he moved  to withdraw his  plea.                                            ____________________            1.    Although we review  the denial of a motion to  suppress            de  novo, see United States  v. Zayas-Diaz, 95  F.3d 105, 111            __  ____  ___ ____________________________            n.6 (1st Cir. 1996),  we review the denial of  a pre-sentence            motion to withdraw a guilty plea for abuse of discretion.                                         -9-                                          9            At the time Muriel pled guilty, he possessed all the relevant            information  about  the  affidavit  that  he  now  claims  is            defective.  This is not a  case where the defendant can point            to newly-discovered  evidence.   Cf. United States  v. Ramos,                                             ___ _______________________            810 F.2d 308,  313 (1st  Cir. 1987) (finding  that the  lower            court  did not  abuse  its discretion  in  refusing to  "give            weight  to a  self-serving,  unsupported  claim of  innocence            raised  judicially  for  the  first time  after  the  Rule 11            hearing,"  particularly where the  defendants had not offered            insight into  the substance of  the exculpatory information).            We  conclude that  Muriel's unsupported claims  regarding the            sufficiency of the search warrant  do not provide a plausible            reason for withdrawal here.                      Finally, Muriel argues that  he did not receive the            benefit of his bargain because of Bailey's impact on his plea                                              ______            agreement, because  he  received no  downward adjustment  for            acceptance of responsibility, and because he was sentenced at            the higher  end of the applicable guideline range rather than            the  lower  end.    We  have   frequently  stated  that  plea            agreements are contractual in nature.  See Parrilla-Tirado 22                                                   ___ _______________            F.3d  at 371; United States v. Atwood, 963 F.2d 476, 479 (1st                          _______________________            Cir.  1992).   We  have  further explained  that  a defendant            receives  some  "built-in" benefits  when  he  or she  pleads            guilty and that,  barring material misrepresentation, default            on a promise, or  breach of the agreement by  the government,                                         -10-                                          10            no additional  consideration is required to  support a guilty            plea.  Parrilla-Tirado, 22 F.3d at 371-72.                          _______________                      Muriel's  memorandum in  support  of the  motion to            withdraw his plea states that he ultimately decided to  forgo            filing a motion to  suppress evidence of the gun  in exchange            for the  chance to bargain  away the most  significant charge            against  him, the  Bailey charge,  which carried  a mandatory                               ______            minimum of five years.  There was ample consideration for the            agreement--in exchange for Muriel's guilty plea to Count III,            the  government agreed  to drop  Counts I and  II and  not to            oppose  a  reduction  in   his  sentence  for  acceptance  of            responsibility.   Muriel cannot be permitted  now to withdraw            his plea in  the hopes  of renegotiating a  better deal  just            because Counts I and II later looked like weak charges.                        Although Muriel may believe that he did not receive            any "built-in" benefits  of his bargain, his bargain was with            the  government,   which  could  only   make  the   agreed-to            recommendations  to the  court and  could not  guarantee that            Muriel would  receive a  particular sentence.   Sentencing is            within  the discretion of  the district court.   Moreover, as            Rule 11(e)(1)(B) itself makes clear, a plea agreement of this            kind is made with the "understanding that such recommendation            or request  shall not be  binding upon the court."   We agree            with  the district court that Muriel should not be allowed to            vacate his guilty plea on this basis.                                         -11-                                          11            (2)  Timing            (2)  Timing                      The  length of time  between the entry  of the plea            and the  filing of the motion  to withdraw is a  factor to be            considered.  Ramos, 810 F.2d at 312.  "Because the  timing of                         _____            a defendant's attempted plea  withdrawal is highly  probative            of  motive, close scrutiny of the  chronology is important in            adjudicating whether  retraction is  fair and just."   Doyle,                                                                   _____            981 F.2d at 595.                        Muriel moved  to withdraw his plea  on February 23,            1996, over two  months after Bailey  was decided, and  almost                                         ______            three months  after  his  guilty  plea  was  entered.    This            circuit's case  law counsels against withdrawal  after such a            delay.   See Isom, 85 F.3d at 839 (two-month delay too long);                     ___ ____            Ramos, 810 F.2d at 313  (thirteen-day delay too long); United            _____                                                  ______            States  v. Keefe, 621 F.2d 17, 20 (1st Cir. 1980) (three-week            ________________            delay  too long).  What is more significant, however, is that            Muriel's motion to withdraw came one month  after the release            of the Presentence Investigation Report ("PSI Report"), which            recommended a sentence of  30 to 37 months, and  found Muriel            to  be  ineligible  for  probation.    If  timing  is  indeed            probative  of motive,  then  it would  seem  that Muriel  was            actually  prompted  to  move  to  withdraw  his  plea  by his            disappointment  with  the  recommended  sentence  in the  PSI            Report.            (3)  Claim of Innocence            (3)  Claim of Innocence                                         -12-                                          12                      A defendant's assertion  of innocence  may cause  a            court  to   look  favorably   upon  a  motion   to  withdraw.            Conversely,  the lack of a claim of innocence weighs in favor            of sustaining a guilty plea.  See Parrilla-Tirado, 22 F.3d at                                          ___ _______________            373;  Doyle, 981 F.2d  at 596.   Muriel does not  claim to be                  _____            innocent of  the felon-in-possession charge to  which he pled            guilty.  He admitted his guilt at the Rule 11 hearing and has            not   asserted   otherwise  at   sentencing  or   on  appeal.            Obviously, Muriel's  failure to  assert a claim  of innocence            weighs against his contention that his reason for withdrawing            his plea is fair and just.                   (4)  Voluntary and Knowing Plea            (4)  Voluntary and Knowing Plea                      "[B]y   entering   a  guilty   plea,   a  defendant            effectively waives  several constitutional rights.   For that            waiver to  be valid, the plea must  amount to a voluntary and            intentional relinquishment or abandonment of a known right or            privilege."  United States v. Gray, 63  F.3d 57, 60 (1st Cir.                         _____________________            1995)  (citing United  States v.  Cotal-Crespo, 47 F.3d  1, 4                           _______________________________            (1st   Cir.),  cert.   denied,   116  S.   Ct.  94   (1995)).                           _____   ______            Accordingly, while  technical violations  of Rule 11  "do not            count," violations of any of the three core concerns--absence            of coercion,  understanding of the charges,  and knowledge of            the consequences of the guilty plea--mandate that the plea be            set aside.  Ribas-Dominicci, 50 F.3d at 78.                        _______________                                         -13-                                          13                      Muriel  does  not  assert  that his  plea  was  not            voluntarily entered or that he did not understand the Rule 11            plea  colloquy.   Instead,  he claims  that,  at the  time he            agreed to the plea bargain, he could not have known  that the            Bailey decision would nullify Count II of the indictment, and            ______            that  therefore he  was  operating under  a false  assumption            regarding the applicable law  when he entered his plea.   The            argument that the change in  law rendered his plea  unknowing            under  the law at  the time,  and that  he was  prejudiced in            giving  up  the opportunity  to  challenge  the admission  of            evidence (the gun) fails for several reasons.                        First,  there  are  no allegations  of  coercion or            mistake, nor is there any evidence of such on the part of the            government.  Second, the  record shows that Muriel understood            the charges against him and that he was aware of the possible            risks involved in  pleading guilty.  The district court found            that at the change  of plea hearing, "Muriel was  apprised of            the precise nature of the charge set forth in Count III,  the            elements the government  was required  to prove  in order  to            convict him, the sentence that could be imposed if his guilty            plea  was accepted  and the  rights he  was relinquishing  by            pleading  guilty."  Memorandum and Order of March 19, 1996 at            7.   In  addition,  Muriel's plea  agreement  stated that  he            understood  the constitutional  rights he  was relinquishing,            and that he  understood that he had no right  to withdraw his                                         -14-                                          14            plea in the event  the court did not accept  the government's            sentencing  recommendations.    Muriel  acknowledged  that he            signed  the agreement  and  understood its  contents, and  he            concedes that he understood the Rule 11 colloquy.                        This  court  has  not  allowed  defendants,  absent            coercion  or mistake,  to  renege on  plea agreements  on the            basis that  they have miscalculated their  risks and benefits            or have belatedly discovered a new defense.  United States v.                                                         ________________            Allard, 926 F.2d 1237, 1243 (1st Cir. 1991).              ______                      In reaching a  plea bargain, a  defendant                      assesses the likelihood of conviction and                      balances   that   against  the   relative                      severity  of the  sentence he  expects to                      receive  pursuant  to  the agreement  and                      that   which   could   be  imposed   upon                      conviction.   In many cases, that process                      results in a compromise pursuant to which                      the defendant makes a  conscious decision                      to  relinquish a perceived defense. . . .                      To  hold  otherwise  would   render  plea                      agreements and the pleas entered pursuant                      to them meaningless.                Id. (collecting cases).            ___                      Similarly, the Supreme Court has stated in Brady v.                                                                 ________            United   States  that,  "absent  misrepresentation  or  other            _______________            impermissible conduct  by state  agents, a voluntary  plea of            guilty intelligently made in the light of the then applicable                                      ___________________________________            law  does  not  become  vulnerable   because  later  judicial            ___            decisions indicate that the plea rested on a faulty premise."            397  U.S.   742,  757  (1970)   (internal  citation  omitted)            (emphasis  added).   Muriel's  post-hoc  determination  after                                           ________                                         -15-                                          15            Bailey  that  he  would be  better  off  filing  a motion  to            ______            suppress the gun and then bargaining anew with the government            does not constitute grounds for vacating his plea.                        We do not believe that a district court abuses  its            discretion by denying a motion to withdraw a guilty plea that            is premised on the basis that a decision by the Supreme Court            interpreting a  criminal statute  might affect a  count which                                              _____            was  dropped by agreement of the parties in the plea bargain.            Other  circuits have  also  faced post-Bailey  plea-agreement                                                   ______            appeals, but in contrast to the case at bar, the guilty pleas            that  have been vacated  or remanded involve  guilty pleas to            the  Bailey-affected  charge.2    In  other  words,  Muriel's                 ______            assertion here  that he pled guilty under  a false assumption                                            ____________________            2.  In ruling on the validity of  a guilty plea to a  Bailey-                                                                  ______            affected charge, the Fifth Circuit has explained that, "where            intervening law has established that a defendant's actions do            not constitute  a  crime  and  thus  that  the  defendant  is            actually  innocent of  the charged  offense," a  defendant is            permitted to attack a guilty plea.  United States v. Andrade,                                                ________________________            83 F.3d 729, 731  (5th Cir. 1996).  In Andrade, the defendant                                                   _______            pled  guilty to  a    924(c)(1) charge  in addition  to three            other charges.  Determining  that there was no factual  basis            for  the      924(c)(1)   offense,  the  court   vacated  the            defendant's  conviction  and  sentence  on  that  charge  and            remanded  to the district court.   See also  United States v.                                               ___ ____  ________________            Abdul, 75 F.3d 327 (7th Cir.),  cert. denied, 116 S. Ct. 2569            _____                           _____ ______            (1996).                      But the case at bar differs fundamentally from such            cases.    Here,  the  Bailey  decision  did  not  change  the                                  ______            interpretation of  a statute to which the  defendant had pled            guilty;  rather,   it  affected  a  charge   dropped  by  the            government  before Bailey was decided.  We are not faced with                               ______            a defendant who may have been sentenced for conduct which did            not  constitute a federal offense, as  in Andrade.  Moreover,                                                      _______            Muriel  does  not  deny that  he  is  guilty  of the  offense            charged.                                           -16-                                          16            about the law does not provide a fair and just reason because            the change in law does not affect the charge to which he pled            guilty,  but a  separate count  of the  indictment which  was            dropped.  A case on point is United States v. Knight, 96 F.3d                                         _______________________            307  (8th Cir.  1996),  cert. denied,  No.  96-8236, 1997  WL                                    _____ ______            134752 (Apr. 14, 1997), in which the defendant pled guilty to            a  drug-conspiracy  charge  in return  for  the  government's            agreement to drop a   924(c)(1) charge, along with other drug            offenses.  The  defendant did  not assert that  his plea  was            unknowing, but argued that "a change in the law applicable to            the  gun  charge  materially  altered  the  plea  agreement's            basis."   Id. at 309.   On appeal, the Eighth Circuit decided                      ___            that the  possibility that the defendant's  conduct would not            qualify  as an offense under    924(c)(1) in  light of Bailey                                                                   ______            did  not undermine his bargain with  the government where the            defendant had  been indicted  on several other  charges which            were dropped pursuant to the plea agreement.  Id.                                                            ___                      We therefore need not  review the factual basis for            the dropped Bailey charge against Muriel to determine whether                        ______            the district court was correct in concluding that it was "far            from certain" that Bailey would nullify Count II.  Memorandum                               ______            and Order  of March 19, 1996 at 6.   It is sufficient to note            that  Muriel's contention  that Count  II would  be nullified            because of  Bailey is  not a  sure bet.   The district  court                        ______            found  that  "evidence  that  Muriel  had  a  firearm  within                                         -17-                                          17            reaching distance and made  a movement toward it  when police            entered  could be  sufficient to  establish that  he actively            'used' the firearm."  Id. at 6.                                          ___                      We conclude  that the district court  did not abuse            its discretion  in refusing to  allow Muriel to  withdraw his            guilty plea.                                         II.                                         II.                      Muriel  also  contends  that  the   district  court            committed  clear  error  by   not  awarding  him  a  downward            adjustment  of   two  or  three  levels   for  acceptance  of            responsibility  under Section 3E1.1 of the Federal Sentencing            Guidelines.3                                            ____________________            3.  The  United  States Sentencing  Guidelines  Section 3E1.1            states:                        Acceptance of Responsibility                      ____________________________                      (a)  If     the     defendant     clearly                      demonstrates acceptance of responsibility                      for  his  offense,  decrease the  offense                      level by 2 levels.                               2                      (b)  If  the  defendant  qualifies for  a                      decrease   under   subsection  (a),   the                      offense  level  determined  prior to  the                      operation of  subsection (a) is  level 16                                                             16                      or   greater,   and  the   defendant  has                      assisted authorities in the investigation                      or prosecution  of his own  misconduct by                      taking  one  or  more  of  the  following                      steps:                           (1)  timely  providing complete                           information  to  the government                           concerning his  own involvement                           in the offense; or                                         -18-                                          18                      A defendant who pleads guilty is  not entitled to a            downward adjustment  for  acceptance of  responsibility as  a            matter  of right.    U.S.S.G.    3E1.1,  application note  3;            United States v. Royer,  895 F.2d 28, 29-30 (1st  Cir. 1990).            ______________________            The  defendant has  the burden  of proving  entitlement to  a            decrease  in   the  offense   level,  including   a  downward            adjustment for  acceptance of responsibility.   United States                                                            _____________            v.  Morillo, 8  F.3d 864,  871 (1st  Cir. 1993).    Whether a            ___________            defendant has  accepted responsibility  for the offense  is a            fact-dominated issue,  and therefore we  review the  district            judge's ruling for clear error.   Royer, 895 F.2d at 29.   We                                              _____            give  the  findings  of  the   district  court  "a  wide  and            deferential  berth"  because the  court  has  the benefit  of            assessing  the  credibility  of  the   defendant  first-hand.            U.S.S.G.   3E1.1 application  note 5; Royer, 895 F.2d  at 30.                                                  _____            While the facts are a close call, we accept the determination            made  by  the  district  judge  because  it  is  not  clearly            erroneous.                                                           ____________________                           (2)  timely  notifying  author-                           ities of his intention to enter                           a   plea  of   guilty,  thereby                           permitting  the  government  to                           avoid  preparing for  trial and                           permitting    the   court    to                           allocate      its     resources                           efficiently,                      decrease   the   offense   level   by   1                                                              1                      additional level.                                           -19-                                          19                      Muriel   did  take  some  steps  towards  accepting            responsibility for  his offense--he wrote a  letter to accept            responsibility and he  testified in court as  to the purchase            of the gun.  (PSI Report at 4; Sent. Hr'g Pt. IV at 94.)  The            prosecution and the probation officer both recommended to the            district court that Muriel receive a three-level reduction in            his  offense level  for  acceptance of  responsibility.   The            district court  did not follow the  recommendation because it            found that Muriel had lied.                        It is  within the discretion of  the district court            to deny a reduction on the  basis of its determination that a            defendant has  resorted to  half-truths or evasions  from the            truth  in an  effort  to  minimize  his or  her  culpability.            United  States v.  Ocasio-Rivera,  991 F.2d  1,  5 (1st  Cir.            ________________________________            1993).  The district judge did not believe  Muriel's repeated            assertion that the gun no longer belonged to him on the night            the  police  executed  the   warrant,  but  belonged  to  his            girlfriend.   In  spite  of  the  fact  that  Ms.  Ostos  was            unfamiliar with the gun,  Muriel continued to insist  that he            had given it to her,  and that she kept the loaded  gun under                                           ___            the pillow upon  which he  had been sleeping.   The  district            court  found  that,  while  Muriel  may  have  made  the  gun            available  to Ostos  while he  was in  the apartment,  Muriel            continued to possess  the gun  up until his  arrest.   (Sent.            Hr'g Pt.  IV  at  162.)   The  district  court's  credibility                                         -20-                                          20            determination  that  Muriel   was  lying   was  not   clearly            erroneous.                                          III.                                         III.                      The judgment of the district court is affirmed.                                                            affirmed                                                            ________                                         -21-                                          21
