
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 95-1297                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                             JUAN MANUEL SANCHEZ-BARRETO,                                Defendant, Appellant.                                                                                      ____________________        No. 95-1299                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                              JACKSON QUINTERO-FIGUEROA,                                Defendant, Appellant.                                                                                      ____________________        No. 95-1300                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                JORGE L. PEREZ-GARCIA,                                 a/k/a PITO CABALLO,                                Defendant, Appellant.                                                                                      ____________________        No. 95-1303                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  LUIS GARCIA-CRUZ,                                Defendant, Appellant.                                                                                      ____________________        No. 95-1306                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 ELIGIO LOPEZ-AYALA,                                Defendant, Appellant.                                                                                      ____________________        No. 95-1404                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                              JUAN CARLOS ARROYO-REYES,                                Defendant, Appellant.                                                                                      ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jos  Antonio Fust , U.S. District Judge]                                              ___________________                                                                                      ____________________                                        Before                            Selya and Cyr, Circuit Judges,                                           ______________                            and Gertner,* District Judge.                                          ______________                                                                                      ____________________                                    ____________________             *Of the District of Massachusetts, sitting by designation.                                          2             Jos  A. Pagan Nieves, with whom Jos  A. Pagan Nieves Law Offices             ____________________            ________________________________        was on brief for appellant Sanchez Barreto.             Carmen R. De J sus for appellant Quintero Figueroa.             __________________             Rafael F. Castro Lang for appellant Perez Garcia.             _____________________             Lydia Lizarribar-Masini on brief for appellant Garcia Cruz.             _______________________             Eduardo Caballero Reyes for appellant Lopez Ayala.             _______________________             Victor P. Miranda Corrada for appellant Arroyo Reyes.             _________________________             Miguel A. Pereira, Assistant United States Attorney, with whom             _________________        Guillermo Gil, United States Attorney, and Jos  A. Quiles-Espinosa,        _____________                              _______________________        Senior Litigation Counsel, were on brief for appellee.                                                                                      ____________________                                   August 21, 1996                                                                                      ____________________                                          3                    CYR,  Circuit Judge.   Appellants  Juan  Carlos Arroyo-                    CYR,  Circuit Judge                          _____________          Reyes ("Arroyo"), Luis Garcia-Cruz ("Garcia"), Eligio Lopez-Ayala          ("Lopez"),  Jorge   Perez-Garcia  ("Perez"),   Jackson  Quintero-          Figueroa  ("Quintero"),  and   Juan  Sanchez-Barreto  ("Sanchez")          contend,  among other  things, that  the district court  erred in          denying their requests to withdraw  their guilty pleas.  See Fed.                                                                   ___          R. Crim. P. 32(e).  We remand the Sixth Amendment claim presented          by  Perez and  affirm the  district court  judgments against  the          remaining appellants.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    On March 9,  1994, a federal grand jury  in Puerto Rico          returned a five-count indictment charging appellants with,  inter                                                                      _____          alia,  conspiracy to  distribute  not less  than  fifty grams  of          ____          cocaine  base,  five kilograms  of cocaine,  and one  kilogram of          heroin, in violation  of 21 U.S.C.    841(a)(1),  846 (1994), and          with  using  or  carrying  firearms in  connection  with  a  drug          offense,  in  violation of  18  U.S.C.     924(c)(1) (1994).    A          superseding indictment  alleged  that appellants  belonged  to  a          twenty-six member gang that operated  a "drug point" in Toa Baja,          Puerto Rico, and used firearms  to defend against rival gangs and          discourage honest citizens from informing the police.                    Appellants initially  pled not  guilty to  the charges.          Just  before  trial,   however,  with  the  advice   of  counsel,          appellants  entered guilty  pleas  to  the  drug  conspiracy  and          firearms   counts  and  the  government  agreed  to  dismiss  the                                          4          remaining counts.  After the district court accepted their guilty          pleas, and before  sentencing, see Appendix A,  appellants sought                                         ___          to withdraw  their pleas.   See  Fed. R.  Crim. P.  32(e) ("If  a                                      ___          motion to withdraw a plea of guilty . . . is made before sentence          is imposed, the  court may permit the plea to be withdrawn if the          defendant shows any fair and  just reason.").  The district court          denied  their motions and imposed sentences consistent with their          respective plea agreements.                                            II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________           A.  The Perez Appeal           A.  The Perez Appeal               ________________                    Perez claims that he was denied effective assistance of          counsel  at the  hearing on  his pro  se motion  to withdraw  his                                           ___  __          guilty plea.  See U.S. Const. amend. VI.  The government responds                        ___          that Perez (1) did not ask the  court to appoint new counsel, and          (2) has  not  shown  that  appointed  counsel,  Jos   R.  Aguayo,          Esquire, labored under an actual  conflict of interest within the          meaning  of United  States v. Soldevila-Lopez,  17 F.3d  480 (1st                      ______________    _______________          Cir. 1994).                      1.  Waiver                    1.  Waiver                        ______                    The  Sixth Amendment  right to effective  assistance of          counsel inheres at all "critical stages" of a criminal proceeding          unless competently waived.  United  States v. Mateo, 950 F.2d 44,                                      ______________    _____          47 (1st  Cir. 1991).   A plea  withdrawal hearing is  a "critical          stage" in the criminal proceeding.  United States v. Crowley, 529                                              _____________    _______          F.2d 1066,  1069 (3d  Cir.), cert. denied,  425 U.S.  995 (1976).                                       _____ ______                                          5          The right  to counsel  is not  contingent upon a  request by  the          defendant;  rather, "we presume  that the defendant  requests the          lawyer's  services at every  critical stage of  the prosecution."          Michigan v.  Jackson, 475  U.S. 625, 633  & n.6  (1986).   In all          ________     _______          events, Perez requested counsel  at the outset, and the  district          court appointed  Jos  R. Aguayo, Esquire.                           _                    Thus, contrary to  the government's suggestion, nothing          in  the  record  remotely  indicates  that  Perez  knowingly  and          voluntarily waived his  Sixth Amendment right  to counsel at  the          plea withdrawal hearing.  Compare  United States v. Saccoccia, 58                                    _______  _____________    _________          F.3d 754,  771-72 (1st  Cir. 1995)  (defendant repeatedly  waived          representation  by conflict-free counsel),  cert. denied,  116 S.                                                      _____ ______          Ct.  1322 (1996); see also United States v. Betancourt-Arretuche,                            ___ ____ _____________    ____________________          933 F.2d  89, 92 (1st  Cir.) (discussing waiver  elements), cert.                                                                      _____          denied, 502 U.S. 959 (1991).  Finding no waiver, we next consider          ______          whether  Perez  has  demonstrated  that  court-appointed  counsel          failed  to afford  effective assistance  at  the plea  withdrawal          hearing.                    2.  Conflict of Interest                    2.  Conflict of Interest                        ____________________                    The government contends that Perez must demonstrate "an          actual  conflict of  interest adversely affect[ing]  his lawyer's          performance."  Soldevila-Lopez, 17 F.3d at 486 (quoting Cuyler v.                         _______________                          ______          Sullivan, 446 U.S.  335, 348 (1980)).  Thus,  the government says          ________          Perez was  required to  show that  court-appointed counsel  could          have pursued a  plausible alternative tactic or strategy  were it          not for an inherent conflict  of interest or other loyalties that                                          6          caused him  not to do so.  Id.;  Guaraldi v. Cunningham, 819 F.2d                                     ___   ________    __________          15, 17 (1st Cir. 1987).                                            7                    We noted  in Soldevila-Lopez that "[c]ourts have recog-                                 _______________          nized actual  conflicts of interest  between an attorney  and his          client  when  pursuit of  a  client's  interests  would  lead  to          evidence of an attorney's malpractice."  Soldevila-Lopez, 17 F.3d                                                   _______________          at 486 (citing  United States v. Ellison, 798  F.2d 1102, 1106-08                          _____________    _______          (7th Cir. 1986),  cert. denied, 479 U.S. 1038  (1987), and Mathis                            _____ ______                             ______          v. Hood,  937 F.2d 790, 795 (2d Cir. 1991)).   The absence of any             ____          malpractice or  ethics complaint  in Soldevila-Lopez  nonetheless                                               _______________          led us to conclude that a conflict-of-interest finding should not          be  based solely  on  an  inference that  the  client might  have          benefited  had  defense   counsel  raised  the  client's   mental          incompetency claim prior to trial.  Id. at 486-87.                                                ___                    The government's contention that Perez' Sixth Amendment          claim  is  indistinguishable  from  that  in  Soldevila-Lopez  is                                                        _______________          untenable,  since   Perez  plainly  alleged  facts  amounting  to          malpractice, if  found to be true.  That  is, the Perez motion to          withdraw his  guilty plea alleged  that Aguayo had  pressured him          into  pleading guilty  at  the  earlier  Rule  11  change-of-plea          hearing in  order to  "hide [Aguayo's]  lack of  preparation" for          trial.   Perez  further alleged  that  Aguayo had  not made  even          "minimum" efforts  to "act  as his counsel  or defender"  and was          only interested  in a fee, but see infra  note 1, thus leaving no                                     ___ ___ _____          doubt that Perez wanted replacement counsel.                           ______                    In United States  v. Ellison, 798  F.2d 1102 (7th  Cir.                       _____________     _______          1986), cert. denied, 479 U.S. 1038 (1987), the district court was                 _____ ______          presented  with  a  virtually identical  situation  in  which the                                          8          defendant had  filed a pro se  motion to withdraw  a guilty plea,                                 ___ __          alleging  that court-appointed counsel had persuaded him to forgo          trial (despite Ellison's assertions of innocence) because counsel          "did not  want to  make waves with  the federal  prosecutors with          whom he  would  be working  in the  future." Id.  at  1106.   The                                                       ___          district  court  neither  appointed new  counsel  nor  obtained a          competent waiver, but instead rejected the plea-withdrawal motion          because defense counsel denied Ellison's accusations at the plea-          withdrawal hearing.                      The Seventh Circuit held that defense counsel's "repre-          sentation" at the plea-withdrawal hearing did not meet  the Sixth          Amendment minima:                     First,  counsel was  not  able to  pursue his                    client's best interests free  from the influ-                    ence of  his concern about  possible self-in-                    crimination. . .  . [I]f  the allegations  in                    defendant's  motion  were true,  his  actions                    would be  tantamount  to  malpractice.    Any                    contention   by   counsel   that  defendant's                    allegations  were  not true  would  (and did)                    contradict his client.  In testifying against                    his client,  counsel acted as  both counselor                    and witness for the prosecution.  These roles                    are inherently inconsistent.             Id. at 1107 (citation omitted); see also Lopez v. Scully, 58 F.3d          ___                             ___ ____ _____    ______          38, 41 (2d Cir. 1995) (holding that a pro se motion to withdraw a                                                ___ __          guilty plea based on alleged  attorney coercion created an actual          conflict of interest).   The identical  logic fully warrants  the          conclusion that  Aguayo may  have been  laboring under  an actual          conflict of interest at the hearing on the pro se plea-withdrawal                                                     ___ __          motion, which alleged  that Aguayo had coerced Perez' guilty plea          in order to conceal his unpreparedness for  trial.  Nevertheless,                                          9          we  think the  appropriate course in  this case is  to remand for          further  factfinding on  the  merits  of  the  Perez  allegations          against Aguayo.          As we recognized  in Soldevila-Lopez, 17                                                        _______________          F.3d at  486, a  claim that  counsel was  disabled  by an  actual          conflict  of  interest  at  a  critical  stage  in  the  criminal          proceeding  amounts  to  an  ineffective  assistance  claim   not          normally appropriate  for consideration  on direct  appeal.   See                                                                        ___          United  States v.  Natanel, 938  F.2d 302,  309 (1st  Cir. 1991),          ______________     _______          cert. denied, 502 U.S. 1079 (1992).  Moreover, the district court          _____ ______          record is not "sufficiently developed to allow reasoned consider-          ation" of the merits of the pro se plea-withdrawal motion itself,                                      ___ __          Soldevila-Lopez, 17  F.3d at  486 (quoting  Natanel, 938 F.2d  at          _______________                             _______          309),  since  its   underlying  conflict-of-interest  allegations          against  Aguayo  were  never  subjected  to  factfinding  in  the          district court.                     The  district court failed  to determine, in  the first          instance,  whether Perez had  made "an intelligent  and competent          waiver" of his Sixth Amendment right to counsel before proceeding          to hear the plea-withdrawal motion with Perez acting pro se.  See                                                               ___ __   ___          Mateo, 950  F.2d at 47.   Instead, it opened  the plea-withdrawal          _____          hearing with questions to Aguayo about the pro se plea-withdrawal                                                     ___ __          motion.   Whereupon  Aguayo extolled  the  benefits of  the  plea          agreement, stated that  there were no errors in  the earlier Rule          11 plea colloquy  conducted by the district court,  nor any basis          in  law for  Perez' pro  se plea-withdrawal  motion, and,  in all                              ___  __          events, that  Perez was better  off with the plea  bargain, given                                          10          the  unlikelihood the  he could  prevail at  trial.   Summing up,          Aguayo stated:   "I really don't understand why  [Perez] wants to          withdraw [the plea agreement]."  Compare United States v. Daniel,                                           _______ _____________    ______          962 F.2d 100, 102 (1st Cir. 1992) (attorney argued vigorously and          successfully  for  client  after  raising  potential   conflict).          Whatever  their independent merit,1 the views expressed by Aguayo          at the plea-withdrawal hearing directly contradicted the position          advocated  by Perez in  the pro se motion  to withdraw his guilty                                      ___ __          plea.  Thus, the  Rule 32(e) hearing record leaves  no doubt that          Perez was  left to  fend for  himself, without  representation by                                                 _______          counsel.   But  see Crowley,  529 F.2d  at 1069  (plea withdrawal                     ___  ___ _______          hearing  is "critical  stage" in  criminal  proceeding).   Conse-          quently,  Perez  was  denied effective  assistance  at  the plea-          withdrawal  hearing.    See  Soldevila-Lopez,  17  F.3d  at  486;                                  ___  _______________          Ellison, 798 F.2d at 1106-08.          _______                    In many instances  a trial court may have  no reason to          question  whether counsel's  personal  or professional  interests          might preclude "effective assistance" to the defendant.  In  such          circumstances,  fair and efficient criminal justice may depend in          significant part upon  the ethical obligation of  defense counsel          to inform the court whenever a conflict of interest arises in the                                        ____________________               1The  record discloses cause  for Aguayo's concerns  for his          client (and for the district  court's concern as well) since upon          conviction  Perez  would  face  a  ninety-year  minimum  term  of                                                          _______          imprisonment,  rather   than  the  seventeen-year   maximum  term                                                              _______          negotiated for him under the plea agreement.                                          11          course of the  proceedings.  Guaraldi, 819  F.2d at 18.2   On the                                       ________          other hand,  when the trial  court learns  or has reason  to know          that  there  is a  colorable  conflict,  it  should  initiate  an          appropriate inquiry to  safeguard the  accused's Sixth  Amendment          rights.  Soldevila-Lopez, 17 F.3d at 487; United States v. Allen,                   _______________                  _____________    _____          789 F.2d 90,  92 (1st Cir.) ("Where the  accused voices objection          to appointed  counsel, the  trial court should  inquire into  the          reasons  for the dissatisfaction."),  cert. denied, 479  U.S. 846                                                _____ ______          (1986);  see generally  2 Wayne  R.  LaFave &  Jerold H.  Israel,                   ___ _________          Criminal Procedure   11.4(b), at pp. 36-37 (1984) (replacement of          __________________          appointed counsel); cf. Fed. R. Crim. P. 44(c) (mandating inquiry                              ___          into joint representation).                    Given the  clarity and specificity  of the  malpractice          allegations in  the pro se plea-withdrawal motion filed by Perez,                              ___ __          and Aguayo's sua  sponte attempt to terminate  his representation                       ___  ______          at the  outset of  the plea-withdrawal  hearing, the  appropriate          course for the district court  was to resolve the factual dispute                                        ____________________               2Were  there  any  substance to  Perez'  allegations against          Aguayo,  a matter  yet to  be  addressed by  the district  court,          D.P.R. Loc.  R. 211.4 would  appear to have required  that Aguayo          observe Model  Rule of Professional  Conduct 1.7(b),  prohibiting                  ____________________________________          represent-ation   where   personal  or   professional   interests          materially  restrict counsel's freedom of  action in support of a          client's interests.  See also  id. Rule 1.16(a)(1) (imposing duty                               ___ ____  ___          to terminate  representation).  In  all events, at the  outset of          the  plea-withdrawal hearing, Aguayo  promptly indicated  that he          intended to  withdraw as counsel.  The district court nonetheless          proceeded with the hearing, took no action on Aguayo's withdrawal          suggestion and, for all intents and  purposes, continued to treat          Aguayo  as Perez' counsel, without first determining the disputed          facts underlying the Perez allegations against Aguayo.  Thus, the          factual linchpin to  the ineffective assistance claim     whether          Aguayo in fact labored under a conflict of interest    has yet to          be subjected to factfinding.                                           12          in keeping  with the  adversarial nature  of the  plea-withdrawal          request.  Moreover, absent a proper waiver of the Sixth Amendment          right to counsel, and a knowing and voluntary election to proceed          pro se on the Rule 32(e)  motion, see Ellison, 798 F.2d  1108-09;          ___ __                            ___ _______          United States  v. Wadsworth,  830 F.2d  1500,  1510-11 (9th  Cir.          _____________     _________          1987),  appointment of replacement counsel was the only appropri-          ate  course.  As the hearing transcript plainly demonstrates, the          failure to  conduct the required  factual inquiry resulted  in an          unconstitutional  breakdown  in  the  adversarial process,  which          compels a remand  for further proceedings.  See  Cuyler, 446 U.S.                                                      ___  ______          at 349-50 (rejecting harmless error analysis).                    On remand, the district court shall appoint replacement          counsel for  Perez at  a plea-withdrawal  hearing reconvened  for          factfinding  purposes   to  determine   the   merits  of   Perez'          allegations   against  Aguayo,  so  as  to  enable  its  ultimate          determination  whether  the  guilty   plea  itself  was  rendered          involuntary by  a violation  of Perez'  Sixth Amendment  right to          counsel at all critical  stages of the proceeding.   See Hill  v.                                                               ___ ____          Lockhart, 474 U.S.  52, 56 (1985) (ineffective  assistance during          ________          bargaining may render plea involuntary).            B.   The Plea Withdrawal Motions          B.   The Plea Withdrawal Motions               ___________________________               by the Remaining Defendants                by the Remaining Defendants                ___________________________                    We  now turn  to the claims  advanced by  the remaining          defendants.  Under the well-established framework for  evaluating          plea-withdrawal motions,  the district  court  considers all  the          circumstances, with particular attentionto four prominentfactors:                    (1) the plausibility of the reasons prompting                                          13                    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.          United  States  v. Parrilla-Tirado,  22 F.3d  368, 371  (1st Cir.          ______________     _______________          1994) (footnote omitted).  If the defendant carries the burden of          persuasion on these  four criteria, the district  court may still          decline  to allow the plea  to be withdrawn  if it would unfairly          prejudice the government.  United  States v. Doyle, 981 F.2d 591,                                     ______________    _____          594 (1st  Cir. 1992).   Moreover, absent a demonstrable  abuse of          discretion,  we  will  not  reverse  a  district  court  decision          granting or  denying a  request to withdraw  a guilty  plea filed          before sentencing.   United  States v.  Martinez-Molina, 64  F.3d                               ______________     _______________          719, 732 (1st Cir. 1995).                    1.  Voluntariness                    1.  Voluntariness                        _____________                    The most prominent single factor    whether these pleas          were knowing, voluntary,  and intelligent, within the  meaning of          Criminal Rule 11(d), United States  v. Cotal-Crespo, 47 F.3d 1, 3                               _____________     ____________          (1st Cir.), cert.  denied, 116 S. Ct. 94 (1995)    does not favor                      _____  ______          these  appellants.   We  have  found no  abuse  of discretion  in          disallowing plea withdrawal motions where Rule 11 safeguards were          scrupulously followed by the  district court.  See, e.g.,  United                                                         ___  ____   ______          States  v. Austin,  948 F.2d  783, 787  (1st Cir.  1991).   These          ______     ______          appellants  uniformly have failed to identify any defect in their          Rule 11 plea  colloquies.  Rather, appellants  contend that their                                          14          pleas   were    rendered   involuntary   by    their   attorneys'          recommendations  to accept  the  plea  bargains  offered  by  the          government on  the morning trial  was scheduled to begin.   Their          contentions are meritless.                     Special Rule  11  requirements have  been  designed  to          minimize the significant risk that "involuntary" guilty pleas may          be tendered in response to "package plea bargain" offers from the          government.   See Martinez-Molina, 64  F.3d 732-34.  The  Rule 11                        ___ _______________          hearing transcripts  in this  case disclose  that each  appellant          repeatedly informed the  district court that his  guilty plea had          not  been coerced by anyone, thereby substantiating the threshold                               ______          voluntariness determination  for  Rule 11(d)  purposes.    United                                                                     ______          States v. Martinez-Martinez, 69 F.3d  1215, 1223 (1st Cir.  1995)          ______    _________________          (inquiring whether  anyone has  coerced the  plea satisfies  Rule                              ______          11),  cert.  denied, 116  S. Ct.  1343 (1996);  compare Martinez-                _____  ______                             _______ _________          Molina,  64 F.3d at  733-34 (inquiry restricted  to prosecutorial          ______                                              _____________          coercion  insufficient).    Consequently,  without  more,   their          general allegations of coercion, based on the imminence of  trial          or conflict-free defense counsel's enthusiasm for  the negotiated          plea  bargain, are insufficient to establish  an abuse of discre-          tion.    Austin,  948  F.2d  at 786-87  (noting  that  court  has                   ______          discretion to refuse withdrawal of "eleventh hour" plea).                     2.  Timing                    2.  Timing                        ______                    The  delays in filing their Rule 32(e) motions likewise          handicap appellants' challenges.  See Appendix A.  Even a request                                            ___          filed prior  to sentencing, United  States v. Isom, 85  F.3d 831,                                      ______________    ____                                          15          838-39 (1st Cir. 1996), must  meet the challenge that "the longer          a defendant  waits before moving  to withdraw his plea,  the more          potency his motion must have in order to gain favorable consider-          ation."  Parrilla-Tirado,  22 F.3d at 373.   These appellants, on                   _______________          the other hand,  offer neither plausible grounds  for withdrawing          their pleas, nor explanations for their extended delays in filing          Rule 32(e) motions.  See Doyle, 981 F.2d at 595 ("the timing of a                               ___ _____          defendant's  attempted  plea  withdrawal is  highly  probative of          motive"); United  States v.  Ramos, 810 F.2d  308, 312  (1st Cir.                    ______________     _____          1987) (contemplating change of heart within days of plea).  Thus,                                               ______ ____          the district  court soundly  concluded that  their belated  plea-          withdrawal motions substantially weakened appellants' claims that          their guilty pleas resulted from confusion or coercion.                    3.  Claims of Innocence                    3.  Claims of Innocence                        ___________________                    Their belated claims of innocence likewise fail to tilt          the  balance.    The  district  judge  is  better  positioned  to          determine   whether  claims  of  innocence  are  credible.    See                                                                        ___          Parrilla-Tirado,  22 F.3d  at 371.    Defendants freely  admitted          _______________          their guilt  during the  flawless Rule  11 proceedings  conducted          below, and the subsequent Rule 32(e) hearing record  evinces only          weak  and implausible  assertions of  innocence.3   The  district                                        ____________________               3See Ramos, 810 F.2d at 313 (rejecting "self-serving, unsup-                ___ _____          ported claim  of innocence raised  judicially for the  first time          after  the  Rule 11  hearing").    Here, Sanchez  admitted  using          firearms, but denied  the drug charge, whereas  Quintero admitted          selling  a small  quantity  of cocaine,  but  denied the  firearm          charge.  Lopez sought to withdraw his plea to the firearm charge.          Garcia asserted no  claim of innocence.  Confronted  with a group          photograph,   in  which   several   codefendants  were   depicted          brandishing firearms, Arroyo claimed the guns were toys.                                            16          court  need not  credit bare  protestations  of legal  innocence.          Isom, 85 F.3d at 839.4          ____                    Once again we emphasize:  there is no absolute right to          withdraw a guilty  plea, Austin, 948 F.2d at 786; the decision is                                   ______          left  to the  sound discretion  of  the trial  court.   Parrilla-                                                                  _________          Tirado,  22  F.3d at  371  (noting that  district  judges possess          ______          special insight  into the  dynamics of their  cases).   Thus, the          totality of  the circumstances  fully supports  the rulings  that          these appellants  presented no  fair  and just  reason to  vacate          their pleas.    No more  was  required.   Isom,  85 F.3d  at  839                                                    ____          (failure to show good cause for withdrawal obviates prejudice-to-          government inquiry).           C.  The Arroyo Sentence          C.  The Arroyo Sentence              ___________________                    For the first  time, Arroyo contends that  the district          court  violated  U.S.S.G.    6B1.1(c)  by allowing  him  to plead                                                                      _____          guilty  before it considered his presentence report ("PSR").5  As                                        ____________________               4Although our cases  occasionally list an additional  factor          to be  considered     whether the parties  reached or  breached a          plea agreement, Isom, 85 F.3d at 834; United States v. Pellerito,                          ____                  _____________    _________          878 F.2d  1535, 1537 (1st Cir. 1989),  cert. denied, 502 U.S. 862                                                 _____ ______          (1991)    as a general rule we do not conduct the typical Rule 32          analysis  in cases  involving  alleged  plea agreement  breaches.          See, e.g., United  States v. Velez-Carrero, 77 F.3d  11 (1st Cir.          ___  ____  ______________    _____________          1996).  In all events, the government kept its end of the bargain          with appellants.                5Unless it finds  a PSR unnecessary, see U.S.S.G.    6A1.1 &                                                    ___          Fed.  R. Crim.  P. 32(b)(1),  the district  court is  expected to          "defer its decision to accept or reject  . . . any plea agreement                                                             ____ _________          pursuant to  Rules 11(e)(1)(A)  and 11(e)(1)(C)  until there  has          been  an opportunity to  consider the [PSR].  . . ."   U.S.S.G.            6B1.1(c)  (emphasis added).  Arroyo  and the government reached a          plea agreement under  Criminal Rule 11(e)(1)(C), providing  for a          specific sentence.                                          17          Arroyo concedes, however,  the failure to raise  this claim below          mandates "plain error"  review.  See Fed. R. Crim.  P. 52(b); see                                           ___                          ___          also United States v. Olano, 507 U.S. 725 (1993).           ____ _____________    _____                    The flaw  in  Arroyo's position  is that  he offers  no          reason for equating acceptance of his guilty plea with the accep-                                                ______ ____          tance of a plea agreement under   6B1.1(c).  See United States v.                     ____ _________                    ___ _____________          Ewing, 957 F.2d 115, 118 (4th Cir.) (rejecting similar argument),          _____          cert. denied, 505 U.S. 1210 (1992).  Arroyo entered a guilty plea          _____ ______          on  September 7, 1994, and,  in accordance with  Fed. R. Crim. P.          11(e)(2) (permitting district  court to defer decision  to accept          or reject Rule  11(e)(1)(C) plea agreements), the  district court          announced  that  its   acceptance  of  the  plea   agreement  was          conditioned upon  its review of  the PSR.   See United  States v.                                                      ___ ______________          Johnson, 53 F.3d 831, 832-33 (7th Cir. 1995) (finding, on similar          _______          facts, that defendant had not been sentenced at Rule 11 hearing).          A PSR was submitted to the district court in timely fashion prior          to  sentencing on  February 13,  1995.   At  the sentencing,  the          district court  found that  the  agreed sentence  was within  the          applicable  guideline range, see  U.S.S.G   6B1.2(c)(1), accepted                                       ___          the plea agreement, see  Ewing, 957 F.2d at 118,  and imposed the                              ___  _____          sentence prescribed in the plea agreement.                    Moreover, Arroyo has not squared his view of   6B1.1(c)          with Fed. R.  Crim. P. 32(b)(3), which prohibits  submission of a          PSR until the defendant has  pleaded or been found guilty, unless          the  defendant  consents  in writing.    The  overarching purpose          served by the  PSR is to assist the district court at sentencing.                                                                __________                                          18          See  U.S.S.G.    6A1.1 &  Fed.  R. Crim.  P. 32(b)(1)  (requiring          ___          completed  PSR "before  the sentence  is imposed").   Nor  are we          persuaded that the district court erred.  But see Olano, 507 U.S.                                                    ___ ___ _____          at 732-33 (appellant must establish "error" under Rule 52(b)).6                     Finally, we  reject  the frivolous  argument  that  the          indictment barred  Arroyo from  stipulating to  the base  offense          level  specified in  the plea  bargain.   Arroyo  pled guilty  to          conspiring to distribute  "not less" than fifty  grams of cocaine          base,  five kilograms of cocaine, and one kilogram of heroin.  By          its plain  language, the  indictment set no  upper limit  on drug          quantity.   See United States  v. Lindia, 82 F.3d  1154, 1159 n.3                      ___ _____________     ______          (1st Cir. 1996)  (indictment alleging drug dealing "in excess" of          50 kilograms did not bar  sentence based on quantity greater than          50  kilograms).   Although Arroyo  and  several other  appellants          challenge  the  factual  bases  for  the  district  court's  drug          quantity determinations as well, their stipulations to their base          offense  levels  constitute  admissions to  the  subsidiary  drug          quantities,  see  U.S.S.G.    2D1.1(c) (determining  base offense                       ___          level according to drug quantity).  See Lindia,  82 F.3d at 1159-                                              ___ ______          60, & 1160  n.3 (suggesting that guilty plea  might preclude drug                                        ____________________               6Although  Arroyo offers  no  authority  for  the  suggested          interpretation of  U.S.S.G.    6B1.1(c),  our research  indicates          that some courts  of appeals recommend, but do  not require, that          PSRs be  made available to  defendants prior to Rule  11 hearings          when  the  applicable guideline  range  is unclear.    See, e.g.,                                                                 ___  ____          United States v.  Horne, 987 F.2d 833, 838-39  (D.C. Cir.), cert.          _____________     _____                                     _____          denied, 510 U.S.  852 (1993).   We discern no  reason to  suggest          ______                                                    _______          such   a  course  in  these  circumstances,  however,  where  the          defendant knew the  precise sentence he was to  receive under the          plea agreement.  See Fed. R. Crim. P. 11(e)(1)(C).                                     ___                                          19          quantity  challenge).  As the record otherwise discloses adequate          factual  support for the agreed-upon sentence,  see Fed. R. Crim.                                                          ___          P. 11(f)  (accuracy of  plea), and  Arroyo's remaining  arguments          merit  no discussion,  we  affirm  the  district  court  judgment          against him.                                           20                                         III                                         III                                      CONCLUSION                                      CONCLUSION                                      __________                    The   case   is  remanded   for   further  proceedings,          consistent with this opinion, see  supra pp. 11-12, on the merits                                        ___  _____          of the pro se plea-withdrawal motion filed  by Perez, as to which                 ___ __          we express no  opinion.   Notwithstanding our  confidence in  the          district judge who presided over these proceedings, whose conduct          of the other plea-withdrawal proceedings was exemplary, we direct          that the Perez matter be assigned to a different judge on remand.          Mateo, 950  F.2d at 50  n.10.   As the five  remaining appellants          _____          have demonstrated no error in  their plea-withdrawal proceedings,          and their remaining  arguments are meritless, the  district court          judgments relating to those defendants are affirmed.                      SO ORDERED.                    SO ORDERED.                    __________                                          21                                      APPENDIX A                                      APPENDIX A           Appellant       Guilty Plea     Withdrawal       Reasons           Appellant       Guilty Plea     Withdrawal       Reasons                                           Motion                                           Motion           Arroyo          9/07/94         12/27/94, sup-   Didn't under-                                           plemented on     stand plea                                           1/09/95 and      agreement;                                           2/13/95.         Rule 11 viola-                                                            tions; claimed                                                            innocence.           Garcia          9/07/94         11/28/94         Attorney coer-                                                            cion; thought                                                            it was all or                                                            none package                                                            deal; limited                                                            education.           Lopez           9/07/94         2/02/95          Mistakenly                                                            thought he had                                                            to plead                                                            guilty to both                                                            counts; inno-                                                            cent of fire-                                                            arms charge.           Quintero        9/07/94         11/08/94         Attorney and                                                            familial coer-                                                            cion; innocent                                                            of firearms                                                            charge.           Sanchez         9/08/94         12/09/94         Attorney coer-                                                            cion; 18 years                                                            of age; preoc-                                                            cupied with                                                            federal                                                            carjacking                                                            trial; inno-                                                            cent of drug                                                            charge.                                          22
