
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1786                                    UNITED STATES,                                      Appellee,                                          v.                                   CARL LALIBERTE,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                           Campbell, Senior Circuit Judge,                                      ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________            Martha S.  Temple, with  whom  Foote  & Temple  was on  brief  for            _________________              _______________        appellant.        Margaret D. McGaughey, Assistant United States Attorney, with whom Jay        _____________________                                              ___        P. McCloskey, United States Attorney, were on brief for appellee.        ____________                                 ____________________                                     May 31, 1994                                 ____________________                      CAMPBELL, Senior Circuit  Judge.   On February  18,                                _____________________            1992, Carl  Laliberte was charged in  a five-count indictment            with conspiring  with seven  others to  possess in  excess of            five  kilograms  of  cocaine  with intent  to  distribute  in            violation of 21 U.S.C.    841(a)(1), 841(b)(1)(A), 846 (1988)            (Count One), possessing cocaine  with intent to distribute in            violation of 21 U.S.C.     841(a)(1), 841(b)(1)(B) (1988) and            18 U.S.C.    2 (1988)  (Counts Two through  Four), and  using            real property to commit violations of 21 U.S.C.    841(a)(1),            846 (1988) so  that the  property was  subject to  forfeiture            pursuant to  21 U.S.C.   853  (1988) (Count Five).   On April            27, 1992,  Laliberte pleaded  guilty to  Counts One  and Five            pursuant to  an Agreement To Plead Guilty  And Cooperate (the            "Cooperation Agreement") entered into  with the United States            Attorney  for  the  District  of   Maine  (the  "Government")            pursuant  to  Fed. R.  Crim.  P.  11.   On  October 6,  1992,            Laliberte, prior  to sentencing,  filed a motion  to withdraw            his  guilty plea.  The  United States District  Court for the            District of Maine, on  May 21, 1993, entered a  memorandum of            decision  and order  denying Laliberte's  motion.   Laliberte            appeals from this decision.  We affirm.                                          I.                      The  April 27, 1992,  Cooperation Agreement between            Laliberte  and  the  Government,  in  addition  to  requiring                                         -2-            Laliberte to plead guilty  to Counts One and  Five, provided,            inter alia, that Laliberte would             _____ ____                      meet  with  attorneys and  agents  of the                      Government,  as  needed,  to tell  fully,                      honestly,  truthfully and  completely all                      that  the defendant kn[ew] or ha[d] heard                      about  violations  of  federal and  state                      laws,  including but  not limited  to the                      defendant's    involvement    and     the                      involvement  of  others in  violations of                      law  . . .  .  The  defendant agree[d] to                      provide   the   Government  or   aid  the                      Government  in  acquiring all  documents,                      photographs, bills, records, receipts and                      all like materials to which the defendant                      ha[d]  access, which  w[ould] corroborate                      this  information.     Defendant  further                      agree[d]  to   testify  fully,  honestly,                      truthfully and completely  at any and all                      grand  juries,  trials or  other official                      proceedings in which his  testimony [was]                      requested.            Laliberte  also consented  to  "assist the  United States  in            effecting the  forfeiture or  other transfer of  any property            . . . subject to  forfeiture to  the United States  under any            law  of  the United  States."   In  exchange  for Laliberte's            compliance  with its  terms  and conditions,  the Cooperation            Agreement stated  that the  Government (1) "may  petition the            Court for the imposition of any lawful sentence," see Fed. R.                                                              ___            Crim.  P. 11(e)(1)(B), and  (2) "will move  to dismiss Counts            Two,  Three and  Four  of the  indictment  after sentence  is            imposed,"1   see  Fed.   R.  Crim.   P.  11(e)(1)(A).     The                         ___            Cooperation Agreement left to the sole judgment of the United                                            ____________________            1.  Counts Two through  Four were, in fact, dismissed  on the            Government's motion.                                         -3-            States Attorney  for the District of  Maine whether Laliberte            had  complied with its  terms and conditions     although the            Government promised  that, at Laliberte's  request, it  would            "make  known the  cooperation  provided by  defendant to  any            individual  or  entity  to   whom  defendant  wishe[d]   such            information disseminated."  A decision that Laliberte had not            cooperated was  to have  "a material and  articulable basis."            Finally,  the  Cooperation  Agreement  expressly  stated that            "[n]othing in this agreement  shall be interpreted to require            the United States to move the Court pursuant to United States            Sentencing Commission Sentencing Guideline Section  5K1.1 for            a downward departure."                       Laliberte   maintains,  and  the  record  tends  to            confirm,  that   after  the  execution  of   the  Cooperation            Agreement he assisted  the Bureau  of Intergovernmental  Drug            Enforcement (the "BIDE") and the Drug Enforcement Agency (the            "DEA")  on at  least one  occasion.   His cooperation  was in            regard to  the controlled purchase of six pounds of marijuana                a transaction that led to the  arrest, on May 4, 1992, of            an  individual named Hank  Dresser    the  seizure of fifteen            pounds  of  marijuana,  and  the  criminal  forfeiture  of  a            residence.                      Laliberte's  collaboration   was,  however,  short-            lived.   On  May  5,  1992, James  Hollywood,  United  States            Pretrial/Probation  Officer, complained to the district court                                         -4-            by  memorandum  that  his  office  had  not  been  told  that            Laliberte   was  assisting  government   agents.    Hollywood            asserted  that it  was  improper for  Laliberte to  cooperate            without the permission of the court and others, including the            probation officer.  In response, the district court issued an            order on May 6, 1992, directing the cessation  of Laliberte's            active law enforcement cooperation.2                      About three  months later, on August  10, 1992, the            Government filed  a motion  requesting the district  court to            permit Laliberte  to resume  his active cooperation  with law            enforcement  agencies.  This motion was allowed on August 15,            1992.   On September 30,  1992, however, it  appears that the            district  court  vacated  its  August 15,  1992,  order,  and                                            ____________________            2.  The order stated:                      It having been brought to the attention of the                 Court  that the  Defendant herein,  Carl Laliberte,                 has   been  engaged   in  active   law  enforcement                                           ______                 cooperative activities at  the instigation of  BIDE                 and DEA officials .  . . without first seeking  the                 consent of Defendant's supervising officer  and the                                                                 ___                 approval  of  the  Court,  and that  such  activity                 ________________________                 interferes with, disrupts,  and defeats the Court's                 efforts,  through its  duly appointed  officers, to                 properly  supervise  said  Defendant  while  he  is                 subject to the authority of the Court.                      It  is hereby, in consequence thereof, ORDERED                                                             _______                 that  all active  participation  of Defendant  Carl                 Laliberte  in cooperative or  other law enforcement                 activity CEASE, forthwith, pending further order of                          _____                 this Court.            (emphasis in original).                                         -5-            reinstated  its  May  6,  1992, order  which  had  proscribed            Laliberte's active cooperation.                       Nearly a week later,  on October 6, 1992, Laliberte            moved to withdraw his  guilty plea pursuant to Fed.  R. Crim.            P. 32(d).3  The motion  asserted, inter alia, that, following                                              _____ ____            the district court's May  6, 1992, order, Laliberte's counsel            had asked  the Government on May  8, June 17, and  June 25 to            take whatever action was necessary to have that order lifted.            Laliberte's motion further maintained that the Government had            "refused to take  any action  to have the  order lifted,  and            [had]  informed  defense counsel  of  its  position that  the            [district court] lack[ed] the authority to interfere with the            active cooperation of a defendant with government agents, and            that it would  not seek the [district  court's] permission to            allow  such  active  cooperation   because  to  do  so  would            acknowledge that  authority."   In light of  the Government's            alleged "failure to provide  the information requested by the            Probation Officer to  consider consenting to  the defendant's            cooperation,  and  its failure  to seek  the approval  of the            [district court]  to allow such cooperation,"  the withdrawal                                            ____________________            3.  Fed. R. Crim. P. 32(d) states in relevant part:                      If a motion for withdrawal of a plea of guilty                 or  nolo  contendere  is  made before  sentence  is                 imposed,  imposition of  sentence is  suspended, or                 disposition is  had under 18 U.S.C.    4205(c), the                 court  may permit  withdrawal  of the  plea upon  a                 showing  by  the defendant  of  any  fair and  just                 reason. . . .                                         -6-            motion argued that Laliberte had been denied "the opportunity            to earn the filing  of a motion for downward  departure which            the Government had  promised him."   In this  same vein,  the            final paragraph of the motion concluded:                      Since  the  Government  would   not  have                      allowed   the   defendant   to   actively                      cooperate  unless  he  agreed   to  plead                      guilty,   and   since  the   Government's                      representation to the  defendant that  he                      would  be given the opportunity to earn a                      downward  departure  through such  active                      cooperation  was   the  most  significant                      factor  in the  defendant's determination                      to plead guilty, the Government's failure                      to  seek the  consent  of  the  Probation                      Officer and the approval of the [district                      court] in a  timely manner to  allow such                      active  cooperation  frustrated the  very                      basis  of  the  defendant's  decision  to                      enter  into  the  plea  agreement  and to                      plead guilty.            On  May  21,  1993,  the district  court  denied  Laliberte's            motion,  concluding that he had "failed to meet his burden of            demonstrating  a `fair and just'  reason to withdraw his plea            of guilty entered in this case."                        In  spite of the district court's having prohibited            Laliberte   from  actively   assisting  in   cooperative  law            enforcement  activities, the  Government, on  June 15,  1993,            moved both to dismiss  Counts Two, Three and Four,  and for a            downward departure  in his  sentence, pursuant to  U.S.S.G.              5K1.1  and  18  U.S.C.    3553(e)  (1988).    The  Government            declared that  Laliberte had substantially  assisted "in  the            investigation  and  apprehension of  others."   The  district                                         -7-            court granted the  Government's motion, dismissing the  three            counts and  reducing Laliberte's prison term  to sixty months            from the  applicable Sentencing Guidelines  range of seventy-            eight to ninety-seven  months.4 Laliberte was  also sentenced            to  serve four years of supervised release and to forfeit his            interest in  real property in  Auburn, Maine.   Judgment  was            entered on July 12, 1993.                      On appeal, Laliberte now contends that the district            court abused its discretion  when on May 21, 1993,  it denied            his motion to withdraw  his guilty plea.  In  considering his            argument, we consider the May 21, 1993, order in light of the            subsequent  sentencing  actions,  including the  Government's            request, accepted  by the court, to dismiss  the three counts            and reduce the sentence.                                         II.                                          A.                      The district court's  decision denying  Laliberte's            motion  to withdraw  his guilty  plea is reviewed  solely for            abuse of  discretion.  See United  States v. Parrilla-Tirado,                                   ___ ______________    _______________               F.3d   ,  , 1994 WL 143251, at *1 (1st Cir. Apr. 28, 1994)            ("[W]e review the district court's  decision to grant or deny            a  request  to withdraw  a guilty  plea  solely for  abuse of                                            ____________________            4.  The district court  calculated the Sentencing  Guidelines            range based on its conclusion that Laliberte's Adjusted Total            Offense Level was twenty-seven  (27) and that he fell  into a            Criminal History Category of II.                                            -8-            discretion." (citing  United States  v. Doyle, 981  F.2d 591,                                  _____________     _____            594 (1st Cir. 1992), and United States v. Pellerito, 878 F.2d                                     _____________    _________            1535, 1538 (1st Cir. 1989))).                      In  Parrilla-Tirado, we  observed that a  motion to                          _______________            withdraw a guilty plea brought before sentencing, such as the            one  here, is reviewed under  a more liberal  standard than a            motion filed after  sentencing.   Id. at *2  (citing Fed.  R.                                              ___            Crim.  P.  32(d)   advisory  committee's  note  ("Under   the            amendment, a  defendant who proceeds  too late to  come under            the more generous `fair  and just reason' standard  must seek            relief  under   2255, meaning 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.'")).  Nevertheless, "a            defendant does not  have an automatic  right to withdraw  his            plea  even at that  comparatively early stage."   Id. (citing                                                              ___            United  States v. Buckley, 847 F.2d 991, 998 (1st Cir. 1988),            ______________    _______            cert. denied,  488 U.S. 1015, 109  S. Ct. 808, 102  L. Ed. 2d            ____________            798  (1989), and United States v. Kobrosky, 711 F.2d 449, 454                             _____________    ________            (1st Cir. 1983)).  Rather, a motion to withdraw a guilty plea            brought  before  sentencing  will  be granted  only  "upon  a            showing by the defendant of any fair and just  reason."  Fed.            R. Crim.  P. 32(d); Parrilla-Tirado,  1994 WL 143251,  at *2.                                _______________            The burden of persuasion as to the existence of such a reason                                         -9-            falls upon  the defendant.  Parrilla-Tirado,  1994 WL 143251,                                        _______________            at  *2 (citing United States v. Gonzalez, 970 F.2d 1095, 1100                           _____________    ________            (2d  Cir.  1992),  and  Fed.   R.  Crim.  P.  32(d)  advisory            committee's note).                      To   decide  whether  the   reason  for  withdrawal            proffered  by  the  defendant  is  "fair  and  just,"  courts            consider a number of factors, including:                      (1)  the plausibility [and  the force] 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) [most  importantly,]                      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, or otherwise legally suspect.            Id.  (citing United States v.  Doyle, 981 F.2d  591, 594 (1st            ___          _____________     _____            Cir.  1992), and United  States v. Pellerito,  878 F.2d 1535,                             ______________    _________            1537  (1st Cir.  1989))  (footnote  omitted).   Additionally,            "[i]f  the  combined weight  of  these factors  tilts  in the            defendant's  favor,  then  the  court must  also  assess  the            quantum  of  prejudice,  if  any,  that  will  inure  to  the            [G]overnment" before it permits the defendant to withdraw his            plea.  Doyle, 981 F.2d at 594; e.g., Parrilla-Tirado, 1994 WL                   _____                   ____  _______________            143251, at *2; Pellerito, 878 F.2d at 1537.                           _________                                         -10-                                          B.                      We apply the above-listed factors seriatim.                      1.   Plausibility  and  Force   of  the   Proffered                           ______________________________________________            Reasons.   A  defendant  may  not  renounce his  guilty  plea            _______            without  advancing a  plausible reason  for doing  so.   See,                                                                     ___            e.g., Parrilla-Tirado, 1994 WL 143251, at *2; Doyle, 981 F.2d            ____  _______________                         _____            at 594; United States v. Tilley, 964 F.2d 66, 72-73 (1st Cir.                    _____________    ______            1992).   Laliberte argues that he should have been allowed to            withdraw his guilty plea  because, by virtue of the  district            court's  sua  sponte  order  prohibiting  him  from  actively                     ___  ______            assisting the BIDE and the DEA, he was denied the opportunity            to  perform his end of  the Cooperation Agreement,  or, as he            says, he was compelled "to breach the agreement he signed."                        Had the district court's prohibition operated so as            to  deny Laliberte  the  benefit of  his bargain,  that might            indeed  have been a plausible reason to allow him to renounce            his  plea.    But  Laliberte  mischaracterizes  what actually            happened.   Laliberte pled guilty on the basis of a so-called            Cooperation Agreement, which burdened  him with meeting  with            government agents,  "as needed,"  to tell all  he knew  about            violations  of   law  and   providing  testimony   and  other            assistance, as requested.   If he  did this, the  Cooperation            Agreement provided that the  Government (1) "may petition the            Court for  the imposition of  any lawful  sentence," and  (2)            would  "move to  dismiss Counts  Two, Three  and Four  of the                                         -11-            indictment after sentence [was]  imposed."  The U.S. Attorney            was to  be  the sole  judge  of Laliberte's  compliance,  and            promised  to make  known  Laliberte's cooperation  to  anyone            Laliberte requested.  The Cooperation Agreement flatly stated            that  nothing therein  required the  Government "to  move the            Court  pursuant   to  United  States   Sentencing  Commission            Sentencing Guideline Section 5K1.1 for a downward departure."                      In  fact,   the  Government  ultimately   moved  to            dismiss, and the district  court dismissed, Counts Two, Three            and Four of the indictment, thus giving to Laliberte the full            benefit  of  its promise  under  (2).   The  Government  also            complied  with (1)  by petitioning  for "a  lawful sentence,"            and, in  so doing,  disregarded its right,  elsewhere stated,            not to  seek a downward  departure.  To  Laliberte's benefit,            ___            the  Government moved for, and  the district court granted, a            significant downward departure in Laliberte's sentence on the            grounds of his substantial assistance.                        The  Government's recommendations,  incorporated in            the   district  court's  final   judgment,  accordingly  gave            Laliberte the  full benefit of  his bargain for  dismissal of            the  three charges,  and also  gave Laliberte  an additional,            unpromised   benefit  (the   downward  departure)   that  the            Cooperation Agreement had expressly stated the Government was            not  required  to provide.    The  stated  premise  of  these            ___                                         -12-            benefits was that Laliberte had  substantially assisted, thus            performing  his  share  of  the bargain  as  to  cooperating.            Whatever can be said had Laliberte been denied these benefits                                                    ______            because of asserted non-cooperation, we can see no basis  for            his  claim of  having been  denied the  right to  perform his            share of the agreement where the Government acknowledged that            he  had  met  his  obligations and  accorded  him  everything            promised  in the event of  his performance     with a sizable            bonus (the downward departure) to boot.                        Laliberte  suggests that  had  he been  allowed  to            cooperate  for the  entire time,  he would,  in some  way not            explained,   been  so   extraordinarily   helpful  that   the            Government  might have  requested  an  even greater  downward            departure.   But as the  Government pointed out  at argument,            what opportunities are extended to an informer to  help catch            others are  necessarily  always subject  to the  Government's            control and  veto.  The Cooperation  Agreement, moreover, was            devoid of  any promise by  the Government to  allow Laliberte            the right to engage in unlimited cooperation; cooperation was            rather a duty imposed on Laliberte as needed and requested                        ____                         ______     _________            a  duty  which,  if satisfied  in  the  opinion  of the  U.S.            Attorney, would  result in the guaranteed  dismissal of three            counts  and  possibly,  though  only  by   implication,  some            unspecified   recommendations    for   sentencing   leniency.            Whatever  promise of sentence reduction was implied, however,                                         -13-            was  offset by  the  Government's express  disclaimer of  any            right  to  a  downward  departure.    Under  the  Cooperation            Agreement as so written,  Laliberte would doubtless have been            entitled to  complain had  his  chance to  cooperate been  so            vitiated as to remove all possibility of earning the promised            dismissal  of the three counts, and  possibly    although far            less clearly    to earn some sentencing leniency.  But where,            as here, his cooperation sufficed both to secure dismissal of            the three  counts and a discretionary  downward departure, we                              ___            see  no plausibility in the  claim that he  was deprived of a            fair and  sufficient  chance  to  fulfill  his  part  of  the            contract.                      2.   Timing.  "The timing of a motion to withdraw a                           ______            guilty plea is  significant.  Delayed requests,  even if made            before  sentencing, are  generally  regarded with  disfavor."            Parrilla-Tirado, 1994 WL 143251, at *4 (citing Pellerito, 878            _______________                                _________            F.2d at 1541); e.g., Doyle, 981 U.S.  at 595.  Generally, the                           ____  _____            longer  a  defendant  waits  before bringing  his  motion  to            withdraw his guilty  plea, the more  forceful his reasons  in            support of  withdrawal must be.   E.g., Parrilla-Tirado, 1994                                              ____  _______________            WL 143251,  at *4; Doyle,  981 F.2d at  595.  This  principle                               _____            obtains because,  "[w]hile an  immediate change of  heart may            well lend considerable force to  a plea withdrawal request, a            long interval between the plea and the request  often weakens                                         -14-            any claim that  the plea  was entered in  confusion or  under            false pretenses."  Doyle, 981 F.2d at 595 (citing cases).                               _____                      Here, Laliberte  entered his guilty  plea on  April            27, 1992.  The district court's order prohibiting his  active            involvement with  law enforcement  agencies was filed  just a            little more than  a week later on May 6,  1992.  Although the            district  court  vacated  that  order  on  August  15,  1992,            Laliberte  contends  that,  by  that time,  he  had  lost all            opportunity   to  cooperate   because  sentencing   was  then            scheduled for  September 21, 1992.5   Accordingly,  Laliberte            moved the  district  court to  withdraw  his guilty  plea  on            October 6, 1992    more than five months after he had entered            it and  five months to the day after the district court's May            6, 1992, order.  Laliberte attributes much of this five-month            delay  to time "spent trying to  resolve the problem" created            by  the district court's order.  One can argue, however, that            Laliberte's   efforts  to   promote   the  efficacy   of  the            Cooperation Agreement over several months after its execution            make  it less  likely  that he  entered  his guilty  plea  in            "confusion or under false  pretenses."  Id.  But  because the                                                    ___            timing issue  is essentially immaterial to  our outcome here,            we  see no need to resolve it.   Even assuming the motion was            timely, it fails on its merits.                                            ____________________            5.  Sentencing was eventually continued until the first  week            of July 1993.                                         -15-                      3.   Claim   of  Innocence.     Courts   look  more                           _____________________            favorably  on a  motion to  withdraw a  guilty plea  when the            motion is  accompanied by an  assertion of innocence.   E.g.,                                                                    ____            Parrilla-Tirado, 1994 WL  143251, at *4;  Doyle, 981 F.2d  at            _______________                           _____            596.  Conversely, "the absence of a claim of innocence weighs            in favor of  allowing a guilty  plea to  stand."  Doyle,  981                                                              _____            F.2d at 596; e.g, Parrilla-Tirado, 1994 WL 143251, at *4.  In                         ___  _______________            this case, Laliberte concedes that  he admitted his guilt  at            the Rule  11 proceeding.  See  Fed. R. Crim. P.  11.  Neither                                      ___            his  motion  to withdraw  his guilty  plea nor  his appellate            brief  contains  an assertion  of  innocence.6   "Thus,  this            factor cuts  sharply against allowing [Laliberte's] motion to            withdraw his guilty plea."   Parrilla-Tirado, 1994 WL 143251,                                         _______________            at *4.                      4.   Voluntariness.  "In  assaying the merits of  a                           _____________            motion  to  withdraw,  an  inquiring  court   must  determine            whether, in light of the defendant's proffered reason and any            newly disclosed facts, the plea may still be deemed voluntary            and  intelligent."   Doyle,  981 F.2d  at 596  (citing United                                 _____                             ______            States v. Austin, 948  F.2d 783, 786-87 (1st Cir.  1991), and            ______    ______                                            ____________________            6.  The   district  court  noted  that  Laliberte  argued  in            Defendant's Reply  To Government's Opposition  To Defendant's            Motion To  Withdraw Guilty Plea  that he had  represented his            legal innocence to his  counsel.  The district court  was not            impressed by this argument, observing that at no  time during            the proceedings  did Laliberte assert his  legal innocence to            the court.                                         -16-            United States v.  Allard, 926  F.2d 1237,  1245-47 (1st  Cir.            _____________     ______            1991)).                        Laliberte   maintains  that   he  would   not  have            voluntarily  entered a guilty plea had he known that within a            month  of doing  so the  district court  would proscribe  his            active cooperation with law enforcement agencies, and thereby            vitiate  his  ability to  earn  a downward  departure  in his            sentence.7     We   think,  however,   that  the   denial  of            Laliberte's motion  to withdraw his plea must now be reviewed            in light  of the Government's actual  recommendations and the            final  judgment that  was entered.    This court  asks simply            whether,   given  what   finally   happened,  including   the            Government's favorable recommendations, the court's dismissal            of  the counts,  and the  reduced sentence,  Laliberte's plea            still appears  to have been  voluntary and intelligent.   For            reasons  already  largely  discussed  above,  see supra  part                                                          ___ _____            II.B.1, the answer is clearly "Yes."                      It is  true the district court's May 6, 1992, order            prevented  Laliberte from  continuing  to  assist  government            agencies  during  much of  the  period  prior to  sentencing.            Still, he  rendered some assistance  and, more to  the point,            that assistance sufficed for him to receive all the  benefits               and more     promised to him in the  Cooperation Agreement                                            ____________________            7.  Laliberte  does not  argue that  his initial  decision to            plead guilty  was made involuntarily,  unintelligently, or in            violation of the requirements of Rule 11.                                         -17-            in return for  his assistance.   In exchange for  Laliberte's            promise  to  plead  guilty to  Counts  One  and  Five and  to            cooperate with  government agencies, the  Government, in  the            Cooperation Agreement, had agreed  to "move to dismiss Counts            Two, Three  and Four of  the indictment after  sentence [was]            imposed."  The Government further said that it  "may petition            the  Court  for  the  imposition  of  any  lawful  sentence,"            although  the  Cooperation  Agreement  expressly  stated that            "[n]othing in this agreement  shall be interpreted to require            the United States to move the Court pursuant to United States            Sentencing Commission Sentencing Guideline Section  5K1.1 for            a downward departure."   Thus, Laliberte voluntarily  pleaded            guilty on April  27, 1992, with  no assurances whatever,  but            only  a bare hope, that he would receive a downward departure            in his sentence.  Ultimately, the district court, pursuant to            the Government's  motions,  not only  dismissed  Counts  Two,            Three  and Four,  but  also, by  downward departure,  reduced            Laliberte's prison  term to  sixty months from  the guideline            range of  seventy-eight to ninety-seven months.  Accordingly,            when viewed in light of all of these "emergent circumstances"                                    ___                not just  the  district court's  May  6, 1992,  order                revealing that  Laliberte received no less  and, indeed, more            than he had been promised if he pleaded guilty, we cannot say            that  Laliberte's guilty  plea  was rendered  involuntary  or            unintelligent by subsequent events.                                          -18-                      Affirmed.                       ________                                                      -19-
