
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-2018                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                HECTOR De ALBA PAGAN,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Raymond L. Acosta, U.S. District Judge]                                             ___________________                              _________________________                                        Before                       Selya, Boudin and Stahl, Circuit Judges.                                                ______________                              _________________________               Jorge L. Arroyo, by appointment of the Court, for appellant.               _______________               Jose  A. Quiles-Espinosa,  Senior  Litigation Counsel,  with               ________________________          whom  Guillermo  Gil, United  States  Attorney,  and Rosa  Emilia                ______________                                 ____________          Rodriguez-Velez, Assistant United States Attorney, were on brief,          _______________          for the United States.                              _________________________                                   August 26, 1994                              _________________________                    SELYA, Circuit  Judge.   On March 22,  1993, defendant-                    SELYA, Circuit  Judge.                           ______________          appellant  Hector De Alba Pagan pled guilty  to five counts of an          indictment  charging  him, and  twenty-three other  persons, with          various  drug-trafficking  offenses.    On August  5,  1993,  the          district court, after first denying defendant's pro  se motion to                                                          ___  __          withdraw  his earlier  plea,1 sentenced  him to a  lengthy prison          term.  This appeal followed.                    Defendant  makes  several  points.    Distilled,  these          points reduce to  three broad  issues.  We  address those  issues          seriatim.          ________                                          I.                                          I.                                          __                                   Plea Withdrawal                                   Plea Withdrawal                                   _______________                    Defendant contends  that the  district  court erred  in          refusing to allow him to  withdraw his guilty plea.  We  review a          district  court's decision to grant or deny a request to withdraw          a guilty plea solely for abuse  of discretion.  See United States                                                          ___ _____________          v.  Parrilla-Tirado, 22  F.3d 368,  371  (1st Cir.  1994); United              _______________                                        ______          States v. Doyle, 981 F.2d 591, 594 (1st Cir. 1992); United States          ______    _____                                     _____________          v. Pellerito, 878 F.2d 1535, 1538 (1st Cir. 1989).  Applying that             _________          standard, we discern no error.                    It  is settled that a motion to withdraw a guilty plea,          made before sentencing,  can be granted "only upon an affirmative          showing of a `fair  and just reason.'"  Parrilla-Tirado,  22 F.3d                                                  _______________                                        ____________________               1Defendant filed his motion to withdraw pro se, although, at                                                       ___ __          the time, he was represented by counsel.  In the  same motion, he          asked  the court to discharge his lawyer and appoint a successor.          The court denied this  request as well.  On  appeal, defendant is          represented by a newly appointed attorney.                                          2          at  371  (quoting  Fed.  R.  Crim.  P.  32(d)).    The  burden of          persuasion rests with  the defendant.   See id.   In  determining                                                  ___ ___          whether this  burden has been  carried, an  inquiring court  must          consider  the totality of  the circumstances, focusing especially          on four  factors,  namely, (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  the defendant's  plea          realistically  may  be  characterized as  legally  suspect,  say,          because it  was involuntary  or  otherwise in  derogation of  the          requirements  imposed by Fed.  R. Crim. P.  11.  See  id. at 371;                                                           ___  ___          Doyle, 981 F.2d  at 594; Pellerito, 878 F.2d at  1537.  If, after          _____                    _________          due consideration, the  defendant appears to  have the better  of          this assessment, the court must  then mull an additional  factor:          prejudice  to the  government.   See Parrilla-Tirado, 22  F.3d at                                           ___ _______________          371;  United  States v.  Kobrosky, 711  F.2d  449, 455  (1st Cir.                ______________     ________          1983).   Here, we do not reach the question of prejudice, for the          defendant's claim,  when  measured by  virtually every  pertinent          test, fails at the earlier stage.                    We need not wax  longiloquent.  Defendant asserts three          reasons for  seeking to  withdraw his plea,  but two of  them are          hopelessly infirm and do not warrant discussion.  His quest rises          or falls, therefore, on  his claim that, when he  pleaded guilty,          he "did not  understand that,  as a consequence  of his plea,  he          would be sentenced [based  partly] on relevant conduct  that went          beyond that which he  admitted to in his statements  to the court                                          3          [at the change-of-plea hearing]."  Appellant's Brief at 16-17.                    On  this chiaroscuro  record, we  cannot find  that the          lower court  erred in refusing  to credit this  professed reason.          After  all, the  court made  it very clear  to defendant  that he          would be  sentenced  in accordance  with  the provisions  of  the          sentencing guidelines,  informed  him  of  the  maximum  possible          punishment, asked  him about promises or  assurances beyond those          limned  in the plea  agreement (defendant said  there were none),          and made certain that defendant was told quite pointedly that the          matter of relevant conduct would be determined at sentencing.                    To be sure,  defendant claims to have  had a subjective          understanding  to the  contrary.2   But where,  as here,  a court          expressly retains  the power to determine  relevant facts bearing          on sentencing under the guidelines, "a defendant cannot claim . .          .  that the plea is rendered involuntary when the court exercises          this  power."   United States  v. Williams,  919 F.2d  1451, 1456                          _____________     ________          (10th Cir.  1990),  cert. denied,  499  U.S. 968  (1991);  accord                              _____ ______                           ______          United States v. Stephens, 906 F.2d 251, 254 (6th Cir. 1990).  In          _____________    ________          short, a defendant's lament that he misjudged the consequences of          his guilty  plea, without more, is not a fair and just reason for          setting  the plea  aside.   By the  same token,  the fact  that a          defendant  misapprehends  the likely  guideline  sentencing range          does  not constitute  a fair  and just  reason for  withdrawing a                                        ____________________               2Defendant  asserts  that  a   principal  reason  for   this          subjective belief lay in his lawyer's  statements to him, abetted          by his lawyer's failure to tell him of comments made by the judge          at sidebar.   These circumstances are more directly  pertinent to          the claim of ineffective assistance, see infra Part II.                                               ___ _____                                          4          guilty plea.  See  Williams, 919 F.2d  at 1456; United States  v.                        ___  ________                     _____________          Bradley, 905 F.2d 359,  360 (11th Cir. 1990); Stephens,  906 F.2d          _______                                       ________          at 253;  United  States v.  Jones, 905  F.2d 867,  868 (5th  Cir.                   ______________     _____          1990); United States  v. Sweeney,  878 F.2d 68,  69-71 (2nd  Cir.                 _____________     _______          1989).3                    Although the absence of a plausible reason itself often          constitutes  an insurmountable  obstacle to  a  defendant's plea-          withdrawal  effort, we  note that,  here,  most of  the remaining          factors  involved in  the  Parrilla-Tirado test  also counsel  in                                     _______________          favor of upholding  the district court's  ruling.  Beyond  noting          two  vital  pieces of  information    that  defendant has  yet to          assert his innocence, and  that we have  been unable to find  any          substantial defect in the  Rule 11 proceedings   we think that it          would serve  no  useful purpose  to  cite  book and  verse.    It          suffices  to  say  that the  district  court  did  not abuse  its          discretion in denying defendant's plea-withdrawal motion.                                         II.                                         II.                                         ___                                Ineffective Assistance                                Ineffective Assistance                                ______________________                    The Sixth  Amendment requires that  persons accused  of          crimes shall  receive the benefit  of counsel for  their defense.          See U.S. Const.,  Amend. VI.  The defendant maintains that he was          ___          denied   this  boon   because  his   trial  counsel   acted  both                                        ____________________               3Here, no one supplied the defendant with an estimate of the          guideline sentencing range during the change-of-plea hearing.  We          note in passing,  however, that  courts have held  that even  the          furnishing  of  an incorrect  estimate  to defendant  by  his own                             _________          counsel would not afford  a basis for permitting him  to withdraw          his  earlier  plea.   See,  e.g.,  Williams,  919  F.2d at  1456;                                ___   ____   ________          Stephens, 906 F.2d at 253.          ________                                          5          irresponsibly and  below an  acceptable standard  of proficiency.          We do not think this plaint is ripe for appellate review.                    "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 originally be presented to, and acted upon by,          the trial court."  United States v. Mala, 7 F.3d  1058, 1063 (1st                             _____________    ____          Cir.  1993) (collecting  cases), cert.  denied,  114 S.  Ct. 1839                                           _____  ______          (1994).    Here,  defendant's  complaint  anent  trial  counsel's          performance  is  utterly factbound,  and cannot  intelligently be          evaluated on the sparse record that is now before us.                    Nonetheless,  the rule  reiterated  in Mala  should  be                                                           ____          construed in a  practical, commonsense fashion.  The chief reason          that we  do not  undertake first-instance review  of prototypical          ineffective  assistance claims  is prudential  in nature.   As we          said in Mala:                  ____                    Since   claims   of  ineffective   assistance                    involve  a  binary analysis     the defendant                    must show, first, that  counsel's performance                    was  constitutionally deficient  and, second,                    that the deficient performance prejudiced the                    defense,  see  Strickland v.  Washington, 466                              ___  __________     __________                    U.S.  668, 687 (1984)   such claims typically                    require the resolution of factual issues that                    cannot  efficaciously  be  addressed  in  the                    first instance by an appellate tribunal.   In                    addition, the  trial judge, by reason  of his                    familiarity with the case, is usually in  the                    best position  to assess both the  quality of                    the  legal  representation  afforded  to  the                    defendant  in  the  district  court  and  the                    impact    of    any    shortfall   in    that                    representation.   Under  ideal circumstances,                    the court of appeals  should have the benefit                    of  this evaluation; elsewise,  the court, in                    effect, may be playing blindman's buff.                                          6          Id.  (some internal citations omitted).          ___                    Be  that as  it  may,  the  case  at  bar  possesses  a          procedural wrinkle:  it must,  in all events, be remanded to  the          district court for further proceedings, see infra Part III.  That                                                  ___ _____          circumstance, coupled with the fact that the claim of ineffective          assistance  is at  least  colorable,  impels  us  to  direct  the          district  court,  on remand,  to hold  an evidentiary  hearing in          advance   of  resentencing   to  determine   whether  defendant's          conviction  ought to  be set  aside on  Sixth Amendment  grounds.          Cf., e.g., United  States v. Rodriguez  Rodriguez, 929 F.2d  747,          ___  ____  ______________    ____________________          753 (1st  Cir. 1991)  (per curiam)  (directing district  court on          remand  to conduct  an  inquiry into  defendant's allegations  of          misconduct by counsel); Mack  v. Smith, 659 F.2d 23, 26 (5th Cir.                                  ____     _____          1981)  (per  curiam)  (remanding   for  evidentiary  hearing   to          determine  if  failure  to file  a  timely  appeal  resulted from          ineffectiveness of counsel).   Of course, we take no  view of the          merits of defendant's Sixth Amendment claim.                                         III.                                         III.                                         ____                                      Sentencing                                      Sentencing                                      __________                    The  defendant  asserts  a  salmagundi  of  grounds  in          support  of his contention that  the district court  erred in the          imposition of sentence.  We agree that the sentencing proceedings          were irremediably flawed and must be conducted afresh.                    The right of  allocution affords  a criminal  defendant          the  opportunity to  make a final  plea to  the judge  on his own          behalf  prior to sentencing.   See United States  v. Behrens, 375                                         ___ _____________     _______                                          7          U.S. 162, 165 (1963).  Ancient in law, allocution is  both a rite          and a right.  It  is designed to temper punishment with  mercy in          appropriate  cases,  and  to  ensure   that  sentencing  reflects          individualized circumstances.   See United States  v. Barnes, 948                                          ___ _____________     ______          F.2d 325,  328  (7th Cir.  1991).   Furthermore, allocution  "has          value  in  terms  of  maximizing  the  perceived  equity  of  the          process."  Id. (citation and internal quotation marks omitted).                     ___                    While it can be argued that the right of allocution has          lost  some  of its  stature since  the  advent of  the sentencing          guidelines   the guidelines,  we might add, have been  blamed for          much worse    allocution remains deeply embedded  in our criminal          jurisprudence.  Indeed, the right is incorporated in the Criminal          Rules,  which provide in pertinent part that, prior to imposing a          sentence, the  judge "shall address the  defendant personally and          determine  if the  defendant wishes  to make  a statement  and to          present  any information in mitigation of the sentence."  Fed. R.          Crim. P. 32(a)(1)(C).  If the defendant responds affirmatively to          this invitation,  he must then be permitted to speak.  See, e.g.,                                                                 ___  ____          Barnes, 948 F.2d at 331.          ______                    In  this case,  the  court below  did not  specifically          address  the  defendant  and  make  the  inquiry  that  the  rule          requires.    Despite this  apparent  failure to  heed  the rule's          command, the government argues that  the omission, in itself,  is          not dispositive.  Rather,  the government strives to persuade  us          that the totality of the circumstances surrounding the sentencing          hearing,   including  some   specific  interaction   between  the                                          8          defendant and the judge,  constituted substantial compliance with          the rule.  We are not convinced.                    As we have previously observed, allocution continues to          play a salient  role in criminal  cases.  Thus,  while we do  not          attach talismanic significance to any particular string of words,          a defendant must at  least be accorded the functional  equivalent          of the right.   And, moreover, functional equivalency  should not          lightly  be assumed.    Though  there may  be  cases  in which  a          defendant, despite  the absence of  the focused inquiry  that the          language of the rule requires, can  be said to have received  its          functional equivalent,  such cases will  be few and  far between.          Doubts should be resolved in the defendant's favor.                    To achieve functional equivalency (or, put another way,          substantial compliance with the imperative of Rule 32 (a)(1)(C)),          it  is not enough that the sentencing court addresses a defendant          on  a particular issue, see,  e.g., United States  v. Walker, 896                                  ___   ____  _____________     ______          F.2d 295, 300-01 (8th Cir. 1990), affords counsel the opportunity          to speak, see, e.g., United  States v. Posner, 868 F.2d  720, 724                    ___  ____  ______________    ______          (5th Cir. 1989), or hears the defendant's specific objections  to          the presentence report, see, e.g., United States v. Phillips, 936                                  ___  ____  _____________    ________          F.2d  1252, 1255-56  (11th Cir.  1991).   Rather, the  court, the          prosecutor,  and the defendant must at the very least interact in          a manner that shows clearly  and convincingly that the  defendant          knew he had a right to speak on any subject of his choosing prior          to the imposition of sentence.   See Green v. United States,  365                                           ___ _____    _____________          U.S. 301, 304-05 (1961).                                          9                    Viewed against this backdrop, we cannot find functional          equivalency  or  substantial  compliance   here.    Although  the          defendant  did engage  in  discussion of  specific points  at the          disposition  hearing, the court did  not, either explicitly or by          fair  implication, invite him to  speak on a  broader, more wide-          ranging level.  Nor does the record furnish any other basis for a          finding that  defendant knew of his  right to allocute.   In this          case, then, the  court's failure to comply with  Rule 32(a)(1)(C)          constituted reversible error.4                    We say "reversible" because, in this type of situation,          we cannot dismiss the error  as harmless.  As early as  1689, the          common law  acknowledged  that  a  court's failure  to  invite  a          defendant  to speak  before  sentencing required  reversal.   See                                                                        ___          Barnes,  948 F.2d at  328 (citing Anonymous, 3  Mod. 265, 266, 87          ______                            _________          Eng.Rep. 175 (K.B. 1689)).   This axiom has survived  the passage          of time.  It is settled that a failure to comply with the mandate          of Rule 32(a)(1)(C) ordinarily  requires vacation of the sentence          imposed without a concomitant inquiry into prejudice.  See United                                                                 ___ ______          States  v. Maldonado, 996 F.2d  598, 599 (2d  Cir. 1993); Barnes,          ______     _________                                      ______          948 F.2d  at 332; Phillips, 936 F.2d at 1256; Walker, 896 F.2d at                            ________                    ______          301; Posner, 868  F.2d at 724; United States v. Buckley, 847 F.2d               ______                    _____________    _______          991,  1002 (1st Cir. 1988),  cert. denied, 488  U.S. 1015 (1989);                                       _____ ______          United  States v. Navarro-Flores,  628 F.2d 1178,  1184 (9th Cir.          ______________    ______________                                        ____________________               4Under  Rule 32(a)(1)(C),  it is  the court's  obligation to          invite  the defendant's  remarks.   Thus, a  defendant ordinarily          will not be  held to have  waived the right of  allocution merely          because he  did not seek to  address the court.   See Barnes, 948                                                            ___ ______          F.2d at 330-31; see also Walker, 896 F.2d at 300.                          ___ ____ ______                                          10          1984); cf. United  States v.  Miller, 849 F.2d  896, 897-98  (4th                 ___ ______________     ______          Cir. 1988) (remanding for  failure to meet strictures of  Fed. R.          Crim. P. 32(a)(1)(A) and (C)).  This is  so precisely because the          impact of  the omission  on a  discretionary decision is  usually          enormously difficult to ascertain.5                    In   line  with   this  virtually  unbroken   skein  of          authorities, we hold, that if  the trial court fails to  afford a          defendant  either  the  right  of allocution  conferred  by  Rule          32(a)(1)(C) or its functional equivalent, vacation of the ensuing          sentence must follow automatically.  So it is here.6                    We affirm  the district court's  denial of  defendant's                    _______________________________________________________          plea-withdrawal  motion,  but  vacate  defendant's  sentence  and          _________________________________________________________________          remand for further proceedings as described herein.  So ordered.          _______________________________________________________________                                        ____________________               5This is not necessarily so, of course, when the sentence is          the minimum  possible.   Thus, the  Ninth Circuit  has undertaken          harmless-error analysis in certain cases in which a defendant has          been  denied  his  right  to  allocution,  limited,  however,  to          instances in  which a sentence is  "already as short as  it could          possibly be under the  Guidelines."  United States v.  Carper, 24                                               _____________     ______          F.3d  1157, 1162  (9th  Cir. 1994);  see  also United  States  v.                                               ___  ____ ______________          Ortega-Lopez, 988 F.2d 70,  72-73 (9th Cir.  1993).  The case  at          ____________          hand is not such a case.               6Because further  proceedings are required, we  do not reach          the  remaining  sentence-related issues  raised  on  appeal.   We          assume that, at the appropriate juncture, the district court will          traverse  that  ground and  make  new  findings  on an  augmented          record.                                          11
