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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     [NOT FOR PUBLICATION - NOT TO BE CITED AS PRECEDENT] 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. 98-1092 <br>                                <br>                  UNITED STATES OF AMERICA, <br>                                <br>                          Appellee, <br>                                <br>                              v. <br>                                <br>                    YAMIL SERRANO-DELGADO, <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>      Bruce J. McGiverin for appellant. <br>      Miguel A. Pereira, Assistant U.S. Attorney, with whom <br>    Guillermo Gil, U.S. Attorney, Jos A. Quiles-Espinosa, Senior <br>    Litigation Counsel, and Nelson Prez-Sosa and Rebecca Kellogg de <br>    Jess, Assistant U.S. Attorneys, were on brief, for appellee.   <br>      <br>     <br>                       ____________________ <br>                                 <br>                        December 1, 1998 <br>   ____________________              <br>                                        LYNCH, Circuit Judge.  Yamil Serrano-Delgado contends <br>    that the district court erred in denying his requests to <br>    withdraw his guilty plea and that his counsel provided <br>    ineffective assistance.  We affirm his conviction. <br>                                I <br>                                        Serrano-Delgado was one of thirty-seven defendants <br>    indicted in connection with a violent drug conspiracy.  (For a <br>    further recitation of the factual background, see United Statesv. Solano-Moreta, No. 98-1091, a companion case that we also <br>    decide today.)  On June 25, 1996, twelve days before trial <br>    began, Serrano-Delgado pled guilty to conspiracy to distribute <br>    controlled substances in violation of 21 U.S.C.  841(a)(1).  <br>      Serrano-Delgado first communicated his desire to <br>    withdraw his guilty plea to the district court in late August <br>    1996, after the acquittal of five of his co-defendants at trial.  <br>    In a formal motion filed on November 8, 1996, Serrano-Delgado <br>    contended that he had pled guilty based on prior counsel's <br>    alleged advice that no one was ever acquitted in federal court, <br>    that he was legally innocent of the conspiracy charged, and that <br>    the court failed to comply with the dictates of Rule 11 when it <br>    accepted his guilty plea.  After an evidentiary hearing and the <br>    post-hearing receipt of various supporting documents, the <br>    district court denied Serrano-Delgado's motion on February 14, <br>    1997. <br>      Before sentencing, both Serrano-Delgado and his <br>    counsel filed a second set of motions to withdraw the plea, <br>    arguing, among other things, that Serrano-Delgado's former <br>    counsel advised him that in exchange for his guilty plea the <br>    government would guarantee that Puerto Rico authorities would <br>    not pursue charges against him.  After another hearing, the <br>    court once again denied the relief requested. <br>      Serrano-Delgado was sentenced to 264 months <br>    imprisonment in accordance with the terms of his Federal Rule of <br>    Criminal Procedure 11(e)(1)(C) plea agreement. <br>                                 II     Serrano-Delgado focuses his arguments on appeal on the <br>    district court's denial of his withdrawal motions.  For a <br>    discussion of the standard by which a district court decides <br>    such a motion and the standard by which this court reviews the <br>    district court's decision, see Solano-Moreta, No. 98-1091. <br>      Serrano-Delgado's attempt to demonstrate that the <br>    district court abused its discretion in denying his motions is <br>    unavailing.  The district court found after a thorough <br>    consideration of Serrano-Delgado's contentions that the timing <br>    of his motion weighed against him, that the evidence of his <br>    imprisonment and hospitalization during some of the relevant <br>    time period was "not sufficient to make a successful claim of <br>    innocence regarding his role in the charged conspiracy," that his <br>    plea was knowing, voluntary, and intelligent despite his low <br>    level of formal education and evidence of learning disabilities <br>    and psychological problems, and that he was properly advised of <br>    the elements of the conspiracy charge to which he pled guilty.  <br>    The court also found that defendant was not misled into <br>    believing that the plea agreement prevented his prosecution in <br>    the Puerto Rico courts. <br>      The district court's refusal to permit the withdrawal <br>    of the plea here was well within its discretion.  Giving the <br>    deference due to the district court's findings, see Solano- <br>    Moreta, No. 98-1091, we agree that Serrano-Delgado's delay in <br>    filing his motion does not indicate a "swift change of heart," <br>    United States v. Tilley, 964 F.2d 66, 72 (1st Cir. 1992) <br>    (internal quotation marks omitted), and that he has not <br>    demonstrated defects in the Rule 11 proceeding or a <br>    misunderstanding of the terms of the plea agreement, see United <br>    States v. Sanchez-Barreto, 93 F.3d 17, 23 (1st Cir. 1996) <br>    (noting that the defendant carries the burden of persuasion),  <br>    cert. denied, 117 S. Ct. 711 (1997).  We further agree that, <br>    although Serrano-Delgado has come forward with some evidence <br>    that suggests that he was not actively involved in the acts <br>    undertaken by the conspiracy during certain (but not all) <br>    relevant periods, the suggestion that this amounts to legal <br>    innocence is not powerful enough to outweigh the factors that <br>    cut against him. <br>      We also conclude that Serrano-Delgado has not shown <br>    that the district court, which had presided over the trial of <br>    eight co-defendants, erred in accepting at sentencing the plea <br>    agreement's stipulation that his admitted participation in the <br>    conspiracy made him responsible for at least 150 kilograms of <br>    cocaine.  See generally United States v. Marrero-Rivera, 124 <br>    F.3d 342, 354 (1st Cir. 1997); Sanchez-Barreto, 93 F.3d at 25. <br>      Finally, although Serrano-Delgado claims that he was <br>    ineffectively assisted by counsel during one of his plea <br>    withdrawal hearings, we decline to address this claim on direct <br>    appeal.  The claim, involving the attorney who represented <br>    Serrano-Delgado through the district court's entry of final <br>    judgment, was never presented to the district court and the <br>    record is insufficiently developed to warrant review at this <br>    juncture.  See United States v. Mala, 7 F.3d 1058, 1063 (1st <br>    Cir. 1993) ("[T]he trial judge, by reason of his familiarity <br>    with the case, is usually in the best position to assess both <br>    the quality of the legal representation afforded to the <br>    defendant in the district court and the impact of any shortfall <br>    in that representation.").  Although on occasion we have <br>    reviewed an ineffective assistance claim without the benefit of <br>    the district court's views, this case does not fall into any <br>    exception to our normal rule.  See id.  Accordingly, this claim <br>    (along with any other claims of ineffective assistance) may, if <br>    Serrano-Delgado chooses, be presented on collateral review under <br>    28 U.S.C.  2255.  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>      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 without prejudice to his <br>    right to renew his ineffective assistance claims in a collateral <br>    proceeding.</pre>

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