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<pre>  [NOT FOR PUBLICATION - NOT TO BE CITED AS PRECEDENT] <br>  <br>                United States Court of Appeals <br>                     For the First Circuit <br>                      ____________________ <br>                                <br>No. 98-1091 <br>                                <br>                  UNITED STATES OF AMERICA, <br>                                <br>                          Appellee, <br>                                <br>                              v. <br>                                <br>                   JORGE J. SOLANO-MORETA, <br>            a/k/a WES, a/k/a CABALLO, a/k/a PEDRO, <br>                                <br>                    Defendant, Appellant. <br>                                <br>                     ____________________ <br>                                <br>                                <br>         APPEAL FROM THE UNITED STATES DISTRICT COURT <br>                                <br>               FOR THE DISTRICT OF PUERTO RICO <br>                                <br>       [Hon. Salvador E. Casellas, U.S. District Judge] <br>                                <br>                     ____________________ <br>                                <br>                            Before <br>                                <br>                   Torruella, Chief Judge, <br>Hall, Senior Circuit Judge,   <br>                   and Lynch, Circuit Judge. <br>                                 <br>                      ____________________ <br>                                 <br>                                        Rafael Anglada-Lpez for appellant. <br>        Miguel A. Pereira, Assistant U.S. Attorney, with whom <br>    Guillermo Gil, U.S. Attorney, was on brief, for appellee.      <br>        <br>                       ____________________ <br>                                 <br>                        December 1, 1998 <br>  ____________________       <br>                                     

      LYNCH, Circuit Judge.  Jorge J. Solano-Moreta <br>    contends, among other things, that the district court erred in <br>    denying his requests to withdraw his guilty plea.  We affirm his <br>    conviction. <br>                                I <br>                                             On June 7, 1995, thirty-seven defendants, including <br>    Solano-Moreta, were indicted in connection with a violent drug <br>    conspiracy.  On May 29, 1996, the day that he was scheduled to <br>    go to trial, Solano-Moreta, the alleged leader of the <br>    organization, pled guilty to engaging in a continuing criminal <br>    enterprise in violation of 21 U.S.C.  848(a) and (b) and to <br>    carrying firearms in relation to a drug trafficking crime in <br>    violation of 18 U.S.C.  924(c)(1) and (2). <br>        Ultimately, only eight of the defendants went to <br>    trial.  On August 8, 1996, the jury convicted three of these <br>    defendants and acquitted five. <br>        Solano-Moreta filed a motion to withdraw his guilty <br>    plea in early December 1996, asserting that an agreement outside <br>    the bounds of the plea agreement had induced his plea and that <br>    his former counsel had not moved to challenge audiotapes or <br>    explained the plea agreement fully.  The court held evidentiary <br>    hearings on December 19 and December 27, 1996 and denied the <br>    motion on January 23, 1997. <br>        When Solano-Moreta appeared for sentencing, he again <br>    informed the court that he wished to withdraw his plea; with the <br>    assistance of new counsel, another motion to that effect was <br>    filed on May 21, 1997.  In addition to requesting <br>    reconsideration of the court's previous rulings, this motion <br>    added further claims of involuntariness, claimed that previous <br>    counsel had an unexplored conflict of interest, and asserted <br>    that the indictment was defective.  On December 10, 1997, after <br>    yet another evidentiary hearing, the motion was denied. <br>        Pursuant to the terms of a Federal Rule of Criminal <br>    Procedure 11(e)(1)(C) plea agreement, which the court accepted <br>    at sentencing, Solano-Moreta was sentenced to 540 months <br>    imprisonment. <br>                                II <br>                                             Solano-Moreta focuses his arguments on appeal on the <br>    district court's denial of his plea withdrawal motions.  In <br>    considering whether a defendant has made an affirmative showing <br>    of a "fair and just reason" for withdrawal of a guilty plea <br>    before sentencing, Fed. R. Crim. P. 32(e), the district court <br>    must consider all of the circumstances, focusing particularly on <br>    the plausibility of the reasons prompting the change of plea, <br>    the timing of the defendant's motion, the existence or <br>    nonexistence of an assertion of innocence, and whether the plea <br>    "appropriately may be characterized as involuntary, in derogation <br>    of the requirements imposed by Fed. R. Crim. P. 11, or otherwise <br>    legally suspect."  United States v. Sanchez-Barreto, 93 F.3d 17, <br>    23 (1st Cir. 1996), cert. denied, 117 S. Ct. 711 (1997); see <br>    also United States v. Pellerito, 878 F.2d 1535, 1537 (1st Cir. <br>    1989).  If these factors tilt in favor of the defendant, the <br>    court must also assess the prejudice to the government.  SeeUnited States v. Parrilla-Tirado, 22 F.3d 368, 371 (1st Cir. <br>    1994). <br>        A district court's ruling on such a motion is reviewed <br>    only for "demonstrable abuse of discretion."  Sanchez-Barreto, 93 <br>    F.3d at 23.  In addition, "[t]he trial court's subsidiary <br>    factfinding in connection with plea-withdrawal motions can be <br>    set aside only for clear error."  Pellerito, 878 F.2d at 1538. <br>        As a preliminary matter, although Solano-Moreta makes <br>    numerous allegations that ineffective assistance by two of his <br>    three previous counsel prevented him from withdrawing his plea <br>    or from going to trial in the first instance, we decline to <br>    address the ineffective assistance claim on direct appeal.  The <br>    district court ruled on some of Solano-Moreta's specific claims <br>    of ineffectiveness and made factual findings relevant to the <br>    performance of counsel in the course of deciding the motions for <br>    withdrawal of the guilty pleas.  Nevertheless, we conclude after <br>    a careful review that the record on the various ineffective <br>    assistance claims is not fully developed.  (We note, as well, <br>    that Solano-Moreta has not aided matters by presenting several <br>    of his arguments on this topic to this Court in a cursory <br>    manner.)  Accordingly, we decline to address the ineffective <br>    assistance claims.  See United States v. Tuesta-Toro, 29 F.3d <br>    771, 776 (1st Cir. 1994) ("Ordinarily, a collateral proceeding <br>    . . . is the proper forum for fact-bound ineffective assistance <br>    claims."). <br>        Putting these claims aside, then, we find that the <br>    district court did not abuse its discretion in denying Solano- <br>    Moreta's motions to withdraw his guilty plea.  The court <br>    determined in two well-reasoned written opinions that all of the <br>    relevant factors weighed against permitting withdrawal.  The <br>    court found that Solano-Moreta's plea was fully voluntary and <br>    that his reasons for withdrawal were implausible.  The court <br>    specifically held that no outside agreement binding on the <br>    government existed (and that, even if Solano-Moreta's counsel <br>    told him otherwise, any reliance on those statements was not <br>    reasonable); that there was no support in the record for his <br>    claim that the indictment was defective; that he understood the <br>    plea agreement; and that there was no showing that his <br>    competence to plead was affected by prescription medication or <br>    any physical or psychological condition.  The court also found <br>    that Solano-Moreta's requests to counsel to move for withdrawal <br>    immediately after his guilty plea did not somehow cure his <br>    unreasonable delay in filing his motion, since, even if he <br>    "considered [moving for withdrawal] . . . prior to December 1996, <br>    it was always disregarded [as] he explored a more convenient <br>    path or legal strategy."  Finally, the court declined to credit <br>    any claim of innocence based on its observation that Solano- <br>    Moreta had perjured himself. <br>        Solano-Moreta repeats here many of the same arguments <br>    he advanced to the district court, but he provides no basis for <br>    this court to question the district court's factual findings or <br>    its weighing of the factors.  "Confronted with an attempt at <br>    plea retraction, the trial judge must make an idiocratic, <br>    particularistic, factbound assessment -- an assessment which is <br>    facilitated because the judge has overseen pretrial proceedings, <br>    conducted the Rule 11 inquiries, accepted the original guilty <br>    plea, and heard at first hand the reasons bearing on its <br>    withdrawal."  Pellerito, 878 F.2d at 1538.  Many of the findings <br>    at issue here are based on the district court's observation of <br>    the demeanor of the defendant and the credibility of various <br>    witnesses.  In this case, we will not second-guess these first- <br>    hand observations, especially since the district court's <br>    consideration of Solano-Moreta's claims was particularly careful <br>    and thorough. <br>        Finally, we also reject Solano-Moreta's challenge to <br>    the district court's acceptance of his plea agreement at <br>    sentencing.  "Before accepting a plea agreement that contains a <br>    specific sentence under Fed. R. Crim. P. 11(e)(1)(C), a <br>    sentencing court is required to satisfy itself either that:  <br>    'the agreed sentence is within the applicable guideline range; <br>    or (2) the agreed sentence departs from the applicable guideline <br>    range for justifiable reasons.'"  United States v. Carrozza, 4 <br>    F.3d 70, 87 (1st Cir. 1993) (quoting U.S.S.G.  6B1.2(c)).  <br>    Ignoring the second of the two options provided by  6B1.2(c) of <br>    the guidelines, Solano-Moreta rests his challenge on the bare <br>    assertion that the stipulated sentence exceeded the guideline <br>    range set forth in the pre-sentence report.  Accordingly, he has <br>    made no showing that the district court erred in accepting the <br>    plea agreement and imposing the 540-month sentence that he <br>    acceded to when he signed it.  Nor has he made any showing that <br>    the court erred in refusing to "mitigat[e]" his sentence. <br>        We have considered all of defendant's arguments <br>    properly presented on direct appeal and find them without merit.  <br>    Defendant's conviction is affirmed.</pre>

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