                Not For Publication in West's Federal Reporter
               Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                        For the First Circuit


No. 02-1931

                              UNITED STATES,

                                 Appellee,

                                      v.

                        FRANCISCO VASCONCELOS,

                         Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF RHODE ISLAND

      [Hon. Ronald R. Lagueux, Senior U.S. District Judge]


                                   Before

                         Lynch, Circuit Judge,
                    Stahl, Senior Circuit Judge,
                      and Lipez, Circuit Judge.


     Jeanne M. Kaiser on brief for appellant.
     Margaret E. Curran, United States Attorney, Donald C. Lockhart
and Terrence P. Donnelly, Assistant United States Attorneys, on
brief for appellee.



                             August 20, 2003
           STAHL,   Senior    Circuit    Judge.   Defendant-appellant

Francisco Vasconcelos seeks to withdraw his guilty plea in a case

of illegal reentry, asserting that his waiver of his right to a

jury trial was not knowing and voluntary.          We hold that the

irregularities in the district court's Rule 11 colloquy, while

confusing, did not amount to reversible error.       Accordingly, we

affirm the district court's denial of Vasconcelos's motion to

withdraw his guilty plea.

                             I.   BACKGROUND

           Vasconcelos is a native and a citizen of Cape Verde.    In

1971, at age twelve, he entered the United States on a visa.      At

the time of his entry, Vasconcelos's mother was a lawful permanent

resident and his stepfather was a United States citizen.

           Between 1980 and 1988, Vasconcelos was convicted of

robbery, possession of a stolen motor vehicle, and possession of

cocaine.   Based on these convictions, Vasconcelos was deported on

September 14, 1993.      He returned to the United States without

permission, however, and in 1994 was convicted of entering a

building with the intent to commit a felony.          Thereafter, on

October 10, 1994, Vasconcelos was again deported.

           Vasconcelos managed to reenter the United States without

permission once again.       On November 7, 2000, he was arrested in

East Providence, Rhode Island, on charges of drug possession and




                                   -2-
obstructing a police officer.         The Immigration and Naturalization

Service took him into custody on July 10, 2001.

              On August 1, 2001, a federal grand jury in the District

of    Rhode    Island    returned    a   one-count     indictment    charging

Vasconcelos with illegal reentry in violation of 8 U.S.C. §§

1326(a) and (b)(2). On January 15, 2002, Vasconcelos signed a plea

agreement, in which he agreed to plead guilty to the indictment.

The government, in turn, agreed to recommend a reduction for

acceptance of responsibility and the lowest possible guideline

sentence.      The agreement stated that Vasconcelos had a right "to

persist in a plea of not guilty" and "to be tried by a jury" but

that "by pleading guilty, he [would give] up his right to a trial."

(emphasis in original).

              On February 4, 2002, the district court conducted a

change of plea hearing pursuant to Fed. R. Crim. P. 11.               At the

hearing, the court asked Vasconcelos if any promises or assurances

not   included    in    the   plea   agreement   had   been   made   to   him.

Vasconcelos replied "no," but his attorney interjected:

      I made two promises to him independently that I would get
      a copy of an attorney's file named Peter Allen back from
      the early 1990s, which I did do. Mr. Allen did send me
      the file, and he had an old [FOIA] request pending up in
      the Immigration Service about 2 years ago, a copy of his
      full [FOIA] file, and I've been geared to get him a full
      copy of his file back from the late 1960s right to the
      present time, and I will follow through on those
      promises.

The court responded, "All right."


                                      -3-
     Later in the colloquy, the judge informed Vasconcelos that if

he pled guilty to the crime, he would give up his right to a trial

by jury.      At this point, Vasconcelos asked to talk with his

attorney.     Following their consultation, his attorney told the

court that despite his research into the facts of Vasconcelos's

case,

     we do not have a factual basis for claiming at this point
     that he's a citizen, and he recognizes and admits as
     much, that therefore he is guilty of this particular
     offense and he's asking permission today to allow the
     Court to accept the plea bargain agreement and to accept
     the plea of guilty. He has told me, he has just said to
     me here, that if new facts come up in the future that
     under some theory which is unknown to us at this point in
     time, somehow it gets shown to a court that, in fact, he
     always was a citizen, or something of that sort, that he
     has legal remedies available to him at that point to try
     to reopen the case. But I told him that if, in fact,
     something comes up in the future that's unbeknownst to
     him, unbeknownst to the documents . . . that if facts
     arise that could change what he's saying here today, that
     I would in fact follow up on it.

        To this statement, the trial judge replied "all right."    The

judge then asked Vasconcelos, "so you understand all that?"       Next,

the judge inquired, "now with all these things in mind that we've

been discussing, do you want to plead guilty . . .?"    The district

court accepted Vasconcelos's guilty plea and scheduled a sentencing

hearing. Later, the district court allowed Vasconcelos's motion to

continue the sentencing hearing so as to allow Vasconcelos to

obtain his INS file.

        On July 24, 2002, two days before the rescheduled sentencing

hearing, Vasconcelos's attorney filed a motion to withdraw the

                                 -4-
guilty    plea.     The    motion    stated    that    through       "additional

investigation," Vasconcelos had discovered: (1) his mother was a

lawful permanent resident at the time she married a U.S. citizen

named Bert Little; (2) this marriage occurred before Vasconcelos

immigrated    to   the    United    States;    (3)    after    the     marriage,

Vasconcelos's mother filed a petition with the INS for "lawful

permanent resident" status for Vasconcelos; and (4) in 1975, Bert

Little applied on Vasconcelos's behalf for replacement of a "lost

alien registration receipt card."             Attached to the motion were

copies of the petition and application.

     On July 26, 2002, the trial court held a hearing on the motion

to withdraw.       At the beginning of the hearing, Vasconcelos's

attorney reminded the court that Vasconcelos had said he would be

back if he had any proof of citizenship.              Vasconcelos's attorney

stated:

     There was a dispute between -- a discussion between
     myself and Mr. Vasconcelos as to the legal import of that
     which was there attached as Exhibits 1 and 2 [to the
     motion], but in the end analysis after more than several
     hours of discussion over the import, I reached the point
     where I told Mr. Vasconcelos that what he instructed me
     to do I would do, and I would file the motion. . . .

The government responded that there was agreement that no Rule 11

defect in the plea proceedings had occurred.                  Neither defense

counsel nor the court reacted to this assertion, and there was no

further reference to any Rule 11 problem.               The government also

argued that Vasconcelos's motion to withdraw did not present any


                                     -5-
evidence that would establish a defense of citizenship.                     The

district court agreed and denied the motion to withdraw, noting

that Vasconcelos had had "ample opportunity to establish any claim

of citizenship."     The court then sentenced Vasconcelos to the

lowest   possible   sentence    under     the   guidelines:   41   months    of

imprisonment.1

                               II. DISCUSSION

     A motion to withdraw a guilty plea should be granted when a

defendant can make an affirmative showing of "any fair and just

reason" for withdrawing the plea.          Fed. R. Crim. P. 11(d)(2)(B).2

In determining whether a defendant met this burden, the district

court should evaluate the totality of the circumstances.              United

States v. Torres-Rosa, 209 F.3d 4, 8 (1st Cir. 2000).3




     1
      Vasconcelos moved for a downward departure on the ground that
he had a mistaken belief that he was a U.S. citizen. That motion
was denied.
     2
      At the time of Vasconcelos's guilty plea and sentencing, Rule
32 permitted a district court judge to grant a motion to withdraw
a guilty plea filed prior to imposition of sentence for "any fair
and just reason."    Fed. R. Crim. P. 32(e).    This provision has
since been moved to Rule 11. Fed. R. Crim. P. 11(d)(2)(B).
     3
      Four elements warrant particular attention: (1) the
plausibility of the proffered reason for withdrawal of the plea;
(2) the timing of the attempted withdrawal; (3) the presence of a
claim of innocence; and (4) whether the circumstances indicate that
the plea was not made knowingly and voluntarily within the meaning
of Fed. R. Crim. P. 11. Torres-Rosa, 209 F.3d at 8-9. We need not
delve into these factors in detail, as we hold infra that even if
the district court erred, such error does not warrant reversal.

                                    -6-
     We first consider the question of the appropriate standard of

review.      Fed. R. Crim. P. 11(h) sets forth a harmless error

standard.       Where a defendant fails to present a Rule 11 challenge

to the district court, however, appellate review is for plain error

only.     United States v. Vonn, 535 U.S. 55, 66 (2002).

     It is unclear from the Rule 11 colloquy whether the district

court recognized that Vasconcelos might have misunderstood the

effect of his guilty plea on his right to a jury trial.                   Certainly

Vasconcelos did not expressly contend below that the district

court's Rule 11 colloquy was inadequate or that his plea was

involuntary.           His motion to withdraw his guilty plea in the

district     court     was    based    on     the   newly    discovered    evidence

concerning his citizenship; not until this appeal did Vasconcelos

argue    that    his   plea   was     not    knowing   and   voluntary    and   thus

prohibited by Rule 11.           We need not decide whether Vasconcelos

adequately preserved the Rule 11 issue, because, under either a

harmless error or plain error standard of review, the result is the

same.    See United States v. Noriega-Millan, 110 F.3d 162, 166-68 &

n.4 (holding any Rule 11 error harmless and declining to decide the

appropriate standard of review).

        Vasconcelos argues that he was not clearly informed that his

plea created finality, or that he was conclusively waiving his

right to a trial by jury.             He points to his counsel's statement

that he had promised to continue to investigate his case and to


                                            -7-
bring any new theories about Vasconcelos's innocence before the

court.     Moreover,   when     the   trial       judge   was    explaining   to

Vasconcelos that he was waiving his right to a jury trial, his

counsel stated that he had assured Vasconcelos that he would

"follow up on" Vasconcelos's case and perhaps "reopen" it if

additional facts came to light.        The trial judge made no attempt to

clarify or correct this statement; he simply replied "all right,"

and asked Vasconcelos, "so you understand all that?"                  The court

then allowed Vasconcelos to continue the sentencing hearing so as

to allow him to obtain his INS file.

     We are troubled by the district court's apparent acquiescence

to Vasconcelos's stated intent to continue pursuing his case.

Assuming   without   deciding    that       the   district      court's   actions

constituted error, we hold that Vasconcelos cannot satisfy either

the plain error standard required by Vonn or the less demanding

harmless error standard.         Vasconcelos's counsel's promises to

"follow up on" or even "reopen" the case did not assert a right to

a jury trial.   Rather, it appears that Vasconcelos was seeking to

present any new evidence related to his citizenship to a court.               At

the Rule 11 hearing, his counsel stated:              "He has told me . . .

that if new facts come up in the future that under some theory

which is unknown to us at this point in time, somehow it gets shown

to a court that, in fact, he always was a citizen, or something of

that sort, that he has legal remedies available to him at that


                                      -8-
point to try to reopen the case." (emphasis added). That statement

indicates that       Vasconcelos    expected       a    court,    not    a    jury,   to

consider the new information.

      Vasconcelos received exactly that.                 At the hearing on his

motion to withdraw his plea, Vasconcelos presented the evidence

that he believed helped his case; the district court considered it

and   determined      that     it   did     not        affect     his    conviction.

Vasconcelos's attorney below effectively conceded, and the district

court agreed, that the INS documents attached to his motion to

withdraw his guilty plea did not establish his citizenship or any

other valid defense to the charges against him.                   See United States

v. Soto, 106 F.3d 1040, 1041 (1st Cir. 1997) (good faith belief in

one's citizenship is not a defense to a § 1326 charge).                         We note

further that Vasconcelos was deported in 1993 and again in 1994; he

has had a decade to produce evidence of his citizenship, but has

failed to do so.

      In sum, Vasconcelos would have no viable immigration-related

defense to the charges if his case were permitted to go to trial.

Accordingly,    we    hold   that   the   district        court    did   not     commit

reversible     error,    and   we   will     not       disturb     its       denial   of

Vasconcelos's motion to withdraw his guilty plea.

      Affirmed.




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