          United States Court of Appeals
                     For the First Circuit


Nos. 12-2111
     13-1622

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                         RONALD MERRITT,

                      Defendant, Appellant.


          APPEALS FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Richard G. Stearns, U.S. District Judge]



                             Before

                       Lynch, Chief Judge,
               Selya and Kayatta, Circuit Judges.



     Robert S. Sinsheimer, with whom Lauren Thomas and Sinsheimer
& Associates were on brief, for appellant.
     Dina Michael Chaitowitz, Assistant United States Attorney,
with whom Carmen M. Ortiz, United States Attorney, was on brief,
for appellee.



                          June 16, 2014
            SELYA, Circuit Judge.         This is the second in a matched

set of bookend cases.     In the earlier case, we rejected the appeal

of Larry Wilkins to set aside his conviction and sentence because

of   a   notorious    scandal   that    shook      public   confidence   in   a

Massachusetts state testing laboratory.              See Wilkins v. United

States (Wilkins II), ___ F.3d ___ (1st Cir. 2014) [No. 13-1637,

slip op. at 14].

            This time around, the appellant is Wilkins's accomplice,

Ronald Merritt.       Although the appellant enjoys a more lenient

standard of review, we conclude that the court below did not abuse

its discretion in refusing to allow him to withdraw his guilty

plea.     We   also    conclude    that      the   appellant's   sentence     is

substantively reasonable.

                                       I.

                                  Background

            These appeals arise out of the same fateful transaction

that we described in Wilkins II.          We outline the structure of this

transaction.    On April 23, 2011, an undercover police officer

posing as a customer in search of a fix approached the appellant in

a Boston neighborhood reputed to be a haven for drug dealers.               The

appellant agreed to make the sale and, after receiving payment,

crossed the street, gave the cash to his supplier (Wilkins), and

returned to give the undercover officer a bag of what appeared to

be crack cocaine.     These events are described in greater detail in


                                       -2-
Wilkins II, ___ F.3d at ___ [slip op. at 2-4], and we assume the

reader's familiarity with that opinion.

            Wilkins and the appellant were jointly indicted for

possession of crack cocaine with intent to distribute.        See 21

U.S.C. § 841(a)(1). After initially maintaining his innocence, the

appellant entered a straight guilty plea (that is, a guilty plea

unaccompanied by a written plea agreement).         The government,

however, made clear that it would recommend a below-the-range

sentence.

            At the change-of-plea hearing, the government's version

of events prominently featured the fact that the substance involved

in the street corner transaction was crack cocaine.    The appellant

admitted the truth of that account.     The district court accepted

the guilty plea and scheduled the disposition hearing for September

7, 2012.

            Roughly a week before the scheduled sentencing date, news

broke of problems associated with Annie Dookhan, a chemist at the

William A. Hinton State Laboratory Institute.    See Wilkins II, ___

F.3d at ___ [slip op. at 4-5].   Because Dookhan was the chemist who

had certified that the substance trafficked in the appellant's case

was crack cocaine, the appellant's counsel told the sentencing

court that the news (which at that point was limited to reports

that Dookhan had breached laboratory protocols) would likely be the

basis of a future effort to rescind his plea.           Despite this


                                 -3-
foreshadowing, the court and the parties agreed to proceed with

sentencing, reserving to the appellant the right to move to

withdraw his plea at a later date.          The court then imposed an 84-

month term of immurement, which was appealed.

          In   the   ensuing   weeks,   a    state   police   investigation

revealed the full extent of Dookhan's perfidy, including her

deliberate contamination of certain samples and her certification

of others without chemical testing.          Although no evidence linked

any of these pernicious practices directly to the appellant's case,

he nonetheless moved to withdraw his plea.           See Fed. R. Crim. P.

11(d)(2)(B).

          The district court heard arguments on this motion in

tandem with arguments on Wilkins's petition to set aside his

conviction and sentence under 28 U.S.C. § 2255.               In an omnibus

rescript, the court denied relief to both men.          See United States

v. Wilkins (Wilkins I), 943 F. Supp. 2d 248, 259 (D. Mass. 2013).

Pertinently, the court concluded that the appellant had not shown

that Dookhan's misconduct was material to his guilty plea and,

therefore, he lacked any founded basis for contending that his plea

was involuntary. See id. at 258. The appellant appealed from this

order, and we consolidated his two appeals.




                                  -4-
                                  II.

                               Analysis

            Before us, the appellant advances two claims of error.

We treat them separately.

                                  A.

                            Plea Withdrawal

            We start with the appellant's claim that the district

court erred in denying his request to withdraw his guilty plea.

The "fair and just reason" rubric usually applies only to plea-

withdrawal motions made before sentencing.    See Fed. R. Crim. P.

11(d)(2).     Here, however, the parties agree that because the

appellant reserved his right to seek such a withdrawal prior to

sentencing, the "fair and just reason" standard applies (not the

more stringent standard for collateral relief described in Wilkins

II, ___ F.3d at ___ [slip op. at 6-7]).        The district court

accepted this agreement, and so do we.

            The "fair and just reason" standard for plea withdrawal

derives from Federal Rule of Criminal Procedure 11(d)(2)(B). Under

this rule, a court may permit such a withdrawal if "the defendant

can show a fair and just reason for requesting" that relief.

Although this gives a defendant the benefit of a permissive

standard, it does not endow him with an unfettered right to retract

a guilty plea.    See United States v. Mercedes Mercedes, 428 F.3d

355, 359 (1st Cir. 2005).

                                  -5-
          Mindful that a district court's close relationship to the

plea process affords it a superior coign of vantage, we review a

district court's denial of a motion to withdraw a plea solely for

abuse of discretion.   See United States v. Gonzalez-Vazquez, 34

F.3d 19, 22 (1st Cir. 1994).   The devoir of persuasion rests with

the movant. See United States v. Parrilla-Tirado, 22 F.3d 368, 371

(1st Cir. 1994).

          In determining whether a defendant who seeks to retract

his plea has carried his burden, an inquiring court must consider

the totality of the circumstances. See Mercedes Mercedes, 428 F.3d

at 359.    This inquiry often gives particular weight to four

factors. A typical starting point is to ascertain whether the plea

was voluntary, intelligent, and informed when tendered. See United

States v. Gates, 709 F.3d 58, 68 (1st Cir.), cert. denied, 134 S.

Ct. 264 (2013). "From that starting point, the inquiry customarily

should expand to factors such as the strength of the reasons

proffered by the defendant as a basis for withdrawing his plea, the

timing of the motion, and the force of any assertion of legal

innocence." Id. at 68-69. If the court concludes that the balance

of all the relevant factors tilts in favor of the defendant, then

— and only then — should the court proceed to factor in the

prejudice (if any) that the government would suffer were the court

to allow the motion to withdraw.   See United States v. Doyle, 981

F.2d 591, 594 (1st Cir. 1992).


                                 -6-
          Against this backdrop, the appellant strives to persuade

us that his guilty plea was involuntary and uninformed because he

had no knowledge of the Dookhan scandal when he tendered it.     We

are not convinced that the district court abused its discretion in

concluding otherwise.

          The district court supportably characterized the evidence

of both Wilkins's and the appellant's guilt as "overwhelming."

Wilkins I, 943 F. Supp. 2d at 258.       In passing upon Wilkins's

appeal, we agreed.   See Wilkins II, ___ F.3d at ___ [slip op. at 9-

11].   While the basis for that characterization is more fully

explained in those previous opinions, we summarize it here.

          The appellant was the retailer in a prototypical street

corner drug "buy."   In addition to his role in the transaction, he

had on his person what appeared to be another bag of crack cocaine

(which the appellant, when arrested, accused the undercover officer

of planting).   His supplier (Wilkins) had a stockpile of similar

bags, one of which field-tested positive for crack cocaine.

Thirteen other bags from that stockpile, never touched by Dookhan,

were subsequently tested by a state police chemist and yielded

uniformly positive results.   See id. [slip op. at 9-10].

          This evidence strongly suggests the appellant's guilt —

and none of it depends in any way on Dookhan.   We think it follows

that the evidence of Dookhan's skullduggery was not enough to

render the appellant's guilty plea involuntary or uninformed.


                                -7-
          The appellant balks at this conclusion.      To begin, he

points to his lawyer's affidavit, which asserts that if the lawyer

had known of the wide-ranging nature of Dookhan's misconduct, he

would not have recommended that the appellant plead guilty. In the

appellant's view, this self-serving affidavit trumps any judicial

appraisal of the strength of the government's case.      We do not

agree.

          In the plea-withdrawal context, an objective standard

governs the inquiry into materiality.        See Ferrara v. United

States, 456 F.3d 278, 294 (1st Cir. 2006).    Thus, the subjective,

post hoc assertions of defense counsel do not possess decretory

significance.   See, e.g., Hill v. Lockhart, 474 U.S. 52, 59-60

(1985); Miller v. Angliker, 848 F.2d 1312, 1323 (2d Cir. 1988). As

opposed to blind subservience to defense counsel's affidavit, the

task confronting the district court demanded an objective analysis,

informed by the effect, if any, that Dookhan's misconduct was

likely to have had on the appellant's chances at trial.     That is

exactly how the court below approached this matter.1

          In Wilkins II, we explained in some detail why Dookhan's

wrongdoing did not give rise to a viable defense.   See ___ F.3d at



     1
       The district court's passing remark that it was "[r]elying
on its own experience," Wilkins I, 943 F. Supp. 2d at 258, does not
suggest the contrary. Judges are appointed largely on the basis of
their knowledge and experience, and this turn of phrase served
merely to emphasize that the weight of judicial experience informed
the court's objective analysis.

                               -8-
___ [slip op. at 9-13].           What we said in that regard applies

equally to the appellant.        But in an effort to blunt the force of

this explanation, the appellant contends that Dookhan's perfidy

paved the way for a defense that was available to him and not to

his accomplice.       He notes that even though testing by the second

chemist revealed uniformly positive results for the virgin bags

drawn       from   Wilkins's   stockpile,2     none   of   those   bags    was

attributable to him.       Thus, he might have been able to assert that

his involvement was merely in a counterfeit drug deal.

              We think that the district court did not abuse its

discretion in concluding that this phantasmagoric gambit would not

have been worth a roll of the dice.             There is not a sliver of

evidence      that   anyone    connected     with   this   transaction    ever

contemplated a sham sale, and the fact that Wilkins's stockpile

(from which the bag sold by the appellant was taken) consistently

tested positive for cocaine argues persuasively that only genuine

drugs were being trafficked that day. Moreover, the district court

supportably found that such a sham was "barely within the rim of

the remotely possible," inasmuch as "any sale of a sham drug [would

have been] extremely dangerous to" Wilkins qua supplier.                  See

Wilkins I, 943 F. Supp. 2d at 258 n.11.



        2
       For the benefit of the curious reader, we note that the
circumstances of this second round of testing are fully described
in Wilkins II, ___ F.3d at ___ [slip op. at 10], and in Wilkins I,
943 F. Supp. 2d at 252-53.

                                     -9-
          To cinch matters, the appellant has never maintained that

this counterfeit drugs scenario (or for that matter any other

exonerative tale) has any grounding in reality.   To the contrary,

the appellant admitted his factual guilt at the change-of-plea

hearing — an admission from which he has never retreated.   Such a

set of circumstances militates powerfully against reversing a trial

court's denial of a plea-withdrawal motion.   See United States v.

Torres-Rosa, 209 F.3d 4, 9 (1st Cir. 2000); Gonzalez-Vazquez, 34

F.3d at 23.

          To be sure, one important factor — timing — counsels in

the appellant's favor. The appellant raised the issue of Dookhan's

misconduct promptly and only delayed moving to withdraw the plea

with the government's acquiescence.3

          But timing alone is not enough to tip the scales.   Even

though, prior to sentencing, "the district court should liberally

allow withdrawal of guilty pleas for any fair and just reason,"

United States v. Mescual-Cruz, 387 F.3d 1, 6 (1st Cir. 2004)

(internal quotation marks omitted), liberal allowance is not to be

confused with automatic allowance.      The words "fair and just

reason" must mean something more than that a defendant has had

second thoughts about his plight.   We cannot fault the court below



     3
       Of course, the appellant derived twin benefits from the
delay. It gave him a chance both to learn the gory details of the
Dookhan scandal and to preview his sentence before deciding whether
to press ahead with an effort to withdraw his plea.

                               -10-
for declining to allow a plea withdrawal where, as here, the record

supports a finding that Dookhan's transgressions were not material

to the appellant's guilty plea.

           In a last-ditch endeavor to change the trajectory of the

debate, the appellant invokes the ideal of "fundamental fairness"

in the plea-bargaining context. But this exhortation is offered at

so high a level of generality that it lacks any real bite, and the

appellant has not given us any plausible reason to believe that his

decision   to   plead    guilty   was   tainted   by   unfairness.   Rule

11(d)(2)(B) itself accounts for fairness concerns when an appellant

seeks to withdraw his plea — and the district court applied the

strictures of that rule meticulously.

           That ends this aspect of the matter.          We hold that the

district court acted within the encincture of its discretion when

it found that the appellant had failed to proffer a fair and just

reason in support of his motion to withdraw his plea.           The order

denying that motion is, therefore, unimpugnable.

                                    B.

                        Reasonableness of Sentence

           We turn now to the appellant's second claim of error: his

challenge to the reasonableness of his sentence.               Due to an

overabundance of prior convictions, mostly for domestic violence

crimes, the appellant was classified as a career offender.            See

USSG §4B1.1.    This classification, in combination with his total


                                   -11-
offense level, yielded a guideline sentencing range (GSR) of 151 to

188 months. At sentencing, the district court varied downward from

the GSR and imposed an 84-month incarcerative term.

          The    appellant    assigns    error   to   this    sentencing

determination.    Our standard of review is familiar: we review

claims of sentencing error for abuse of discretion.          See Gall v.

United States, 552 U.S. 38, 51 (2007).       Our analysis proceeds in

accordance with a two-step pavane.      We first resolve any claims of

procedural error and, if no such error appears, we then inquire

into the substantive reasonableness of the challenged sentence.

See id.; United States v. King, 741 F.3d 305, 307-08 (1st Cir.

2014).

          The appellant's challenge is narrowly focused.         He does

not contest the district court's guideline calculations.         By the

same token, he eschews any claim of procedural error.         Rather, he

complains about the ultimate sentencing determination, arguing that

the district court gave too much weight to his criminal history.

Specifically, he argues that the court failed to take properly into

account that the vast majority of his 26 prior convictions did not

involve drugs and that, in all events, he was well rehabilitated.

          This plaint contains more cry than wool.       "The linchpin

of our review for substantive reasonableness is a determination

about whether the sentence reflects a plausible . . . rationale and

a defensible result."        King, 741 F.3d at 308 (alteration in


                                 -12-
original) (internal quotation marks omitted).               There is nothing

implausible or indefensible about the weight given by the district

court to the appellant's lengthy criminal history.               Both Congress

and the Sentencing Commission have made pellucid that career

offender designations are serious business, not to be treated

lightly. See 28 U.S.C. § 994(h); USSG §4B1.1, comment. (backg'd.).

Here, the court carefully evaluated the appellant's record of

convictions, paying attention (at defense counsel's urging) to both

the nature of the appellant's past crimes and his profession of

rehabilitation.      That the court was not as impressed by these

palliative arguments as the appellant might have hoped does not

itself signal an abuse of discretion.                See United States v.

Clogston, 662 F.3d 588, 593 (1st Cir. 2011).                     After all, a

sentencing court has the right — indeed, the duty — to make

evaluative judgments.        For aught that appears, the court below

exercised this authority in a reasonable and responsible way.

          If more were needed — and we doubt that it is — the

sentence fell well below the bottom of the appellant's properly

calculated GSR.   "It is a rare below-the-range sentence that will

prove   vulnerable     to     a     defendant's     claim   of     substantive

unreasonableness."          King,    741     F.3d   at   310.      Given   the




                                      -13-
circumstances, this case falls within that general rule, not within

the long-odds exception to it.4

                               III.

                            Conclusion

            We need go no further.    As in Wilkins II, "[w]e write

without attempting to lay down any broad rule to govern all

Dookhan-related cases."    ___ F.3d at ___ [slip op. at 14].    The

Dookhan scandal, though disgraceful, does not open the door for the

appellant to mount any promising defense and, given the thorough

change-of-plea colloquy and the potent evidence of his guilt, the

district court did not abuse its discretion in finding no fair and

just reason for allowing the appellant to withdraw his guilty plea.

Nor did the sentence imposed by the court transcend the realm of

reasonableness.



Affirmed.




     4
       The appellant laments the ostensible unfairness of a seven-
year sentence for his role in peddling less than a tenth of an
ounce of crack cocaine.     But the appellant's focus is out of
kilter: the duration of the sentence is largely a function of the
appellant's lengthy criminal history, which happened to culminate
in a small-time drug deal. Viewed in this refocused light, the
sentence appears neither unfair nor unreasonable.

                               -14-
