
USCA1 Opinion

	




          July 26, 1995                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                  _________________          No. 94-1879                               UNITED STATES OF AMERICA                                      Appellee,                                          v.                                   EDGAR GRACIANI,                                Defendant, Appellant.                                  _________________                                     ERRATA SHEET               The  opinion of  this  Court issued  on  July 24,  1995,  is          amended as follows:               On page 18, line 4, "Trial" should be "trial".                                                      _____                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 94-1879                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   EDGAR GRACIANI,                                Defendant, Appellant.                              __________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                              __________________________                                        Before                               Selya, Boudin and Lynch,                                   Circuit Judges.                                   ______________                              __________________________               Harry  R.  Segarra, by  appointment  of  the court,  Benicio               __________________                                   _______          Sanchez  Rivera,  Federal  Public  Defender,  and  Miguel  A.  A.          _______________                                    ______________          Nogueras-Castro,  Assistant Federal  Public Defender,  on various          _______________          briefs for appellant.               Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco               _____________                          _____________________          and Edwin O. Vazquez, Assistant United States Attorneys, on brief              ________________          for the United States.                              _________________________                                    July 24, 1995                              _________________________                                    SELYA,  Circuit  Judge.     Defendant-appellant   Edgar                    SELYA,  Circuit  Judge.                            ______________          Graciani  challenges  the  sentence   imposed  below  on  several          grounds.  He also belatedly moves to remand on the basis of newly          discovered evidence   an  initiative that requires us to  set out          for  the first time the  procedural framework that  pertains to a          motion brought under Fed. R. Crim. P. 33 while a criminal case is          pending  on  direct  appeal,   and,  relatedly,  to  examine  the          interplay between Rule 33 and a  defendant's guilty plea.  In the          end, we affirm the sentence and deny the motion.                                          I.                                          I.                                          __                                      Background                                      Background                                      __________                    Because appellant's conviction and sentence stem from a          guilty  plea rather than a verdict, we derive the pertinent facts          from  the presentence  investigation  report  (PSI  Report),  the          government's  statement   served  pursuant  to  D.P.R.   Loc.  R.          418.2(a),1  and   the  transcripts  of  the   change-of-plea  and          disposition hearings.   See  United States v.  Tejada-Beltran, 50                                  ___  _____________     ______________          F.3d 105, 107 (1st Cir.  1995); United States v. Dietz,  950 F.2d                                          _____________    _____          50, 51 (1st Cir. 1991).                                        ____________________               1The local rule provides:                    In    all    cases   where    a   Presentence                    Investigation Report is ordered . . . counsel                    for the government shall  file with the Court                    and  serve  upon the  defendant's  counsel, a                    statement  setting   forth  the  government's                    version  of   the   facts  leading   to   the                    acceptance of criminal responsibility.          D.P.R. Loc.  R. 418.2(a).   In this case,  the defendant did  not          object to the statement submitted by the government.                                          3                    On  or about  January 14,  1992, appellant  arranged to          sell  one-eighth of a kilogram of crack  cocaine (125 grams) to a          customer who was,  in reality,  a government operative.   On  the          evening of January 15,  appellant's courier, Carlos Delgado Rojas          (Delgado),  told the agent  that appellant  could not  supply the          full  125 grams of crack then  and there; instead, he proposed to          deliver  approximately  80  grams of  crack  and  45-50 grams  of          powdered cocaine.  Once the agent agreed to the substitution, the          parties  consummated  the  transaction.   Subsequent  measurement          revealed  that Delgado had delivered 85.3 grams of crack and 54.4          grams of cocaine powder.                    The agent  expressed an interest  in future  purchases.          Appellant  agreed to  sell him  a half-kilogram  of crack,  to be          delivered  on January 24.  At the appointed time, Delgado, armed,          appeared  at the  delivery site  accompanied by  Juan Encarnacion          Castro  (Encarnacion)  and a  juvenile  (G.R.M.).   The  men were          apprehended and  the arresting  officers seized a  loaded pistol.          The officers also  seized three plastic bags  containing a white,          powdery  substance  later  determined  to  be  sugar.2    Further          investigation revealed that appellant  gave the seized firearm to                                        ____________________               2Appellant eventually admitted that  he had agreed to purvey          the half-kilogram of crack,  and stated that he had  prepared for          the transaction by  "cooking" that  amount of cocaine.   He  then          substituted sugar  for crack, claiming that he  had a premonition          that  he might  be apprehended.   The circumstances  suggest that          something more sinister might have been afoot.  Cf. United States                                                          ___ _____________          v.  Dray,  901 F.2d  1132, 1134  (1st  Cir.) ("Honor,  even among              ____          thieves,  may all  too often be,  in the  bard's phrase,  `a mere          scutcheon.'") (quoting William Shakespeare,  Henry IV Part I, act                                                       _______________          V, sc. 1 (1598)), cert. denied, 498 U.S. 895 (1990).                            _____ ______                                          4          Delgado for protection during the drug transaction.                    The   grand  jury   indicted  Graciani,   Delgado,  and          Encarnacion on a medley of charges.  Appellant was named in seven          counts of the  superseding indictment.   He eventually agreed  to          plead guilty to count 1 (which charged  the unlawful distribution          of 85.3 grams  of crack cocaine on January 15  in violation of 21          U.S.C.     841(a)(1)) and  count  7 (which  charged  the unlawful          carriage   of  a  firearm  during  and  in  relation  to  a  drug          trafficking offense in  violation of  18 U.S.C.    924(c)).   The          plea  agreement  left  the  sentence in  the  court's  discretion          (subject, of course, to the constraints imposed by the sentencing          guidelines).                    The   district  court   took   appellant's   plea   and          commissioned  a  PSI  Report.   The  court  originally  sentenced          appellant on  July 7, 1992,3  but then reconsidered.   We do  not          concern ourselves with the withdrawn sentence, but focus upon the          second disposition hearing (held  on August 2, 1994).   The court          attributed  to appellant  (a)  the weight  of  the crack  cocaine          actually supplied on January  15, (b) the weight of  the powdered          cocaine actually supplied on that date, and (c) the weight of the          crack cocaine promised for  delivery on January 24.   Then, using          the  Drug Quantity Table, the  court set appellant's base offense          level (BOL)  at  36.   See U.S.S.G.   2D1.1(c)(4) (Drug  Quantity                                 ___          Table) (specifying a BOL of 36 for offenses involving "[a]t least                                        ____________________               3The court dismissed the remaining five counts at  that time          as  per the plea agreement.   The ensuing  reconsideration of the          sentence did not implicate the dismissed counts.                                          5          500 G but less than 1.5 KG of Cocaine Base").                    The  court  added six  levels     four for  appellant's          aggravating role in the  offense, see id.  3B1.1(a), and  two for                                            ___ ___          obstruction of  justice, see  id.  3C1.1    and subtracted  three                                   ___  ___          levels for acceptance of responsibility, see id.  3E1.1, bringing                                                   ___ ___          the total offense level (TOL) to 39.  Given appellant's status as          a  first  offender,  these   computations  yielded  a   guideline          sentencing  range (GSR) of 262-327  months.  The  court imposed a          280-month incarcerative sentence on count 1, and added a 60-month          consecutive  sentence  on  count  7 to  accommodate  a  mandatory          minimum.  See 18 U.S.C.   924(c)(1).  This appeal ensued.                    ___                                         II.                                         II.                                         ___                                      Discussion                                      Discussion                                      __________                    Appellant advances a myriad  of arguments in support of          the  appeal and  the  concomitant motion.    We deal  with  these          arguments seriatim.                    ________                                          A.                                          A.                                          __                                   Relevant Conduct                                   Relevant Conduct                                   ________________                    The  method  of  the  sentencing  guidelines  makes the          quantity of narcotics attributable to a convicted drug trafficker          a key datum in constructing his  sentence.  See United States  v.                                                      ___ _____________          Sepulveda,  15 F.3d 1161, 1196 (1st Cir. 1994), cert. denied, 114          _________                                       _____ ______          S. Ct. 2714 (1995); United States v. Garcia, 954 F.2d 12, 15 (1st                              _____________    ______          Cir. 1992); United States v. Bradley, 917 F.2d 601, 604 (1st Cir.                      _____________    _______          1990).  In this case, appellant castigates the district court for          attributing to  him a drug  quantity in excess  of the amount  of                                          6          crack cocaine  involved in the count of  conviction.  Appellant's          fusillade lands well wide of the target.                    Under   the  guidelines,   the   aggregate  amount   of          attributed drugs  is to  be derived  from  the sum  total of  all          relevant  conduct.    The  proper figure  can  only  be computed,          therefore, by careful consideration  of all acts "that were  part          of the same  course of conduct  or common scheme  or plan as  the          offense  of  conviction."    U.S.S.G.   1B1.3(a)(2).    "Relevant          conduct is not limited  to the counts of conviction";  rather, it          includes both the charged conduct to which a defendant pleads and          also any other conduct that qualifies under the relevancy rubric.          Tejada-Beltran, 50 F.3d at 110; see also Garcia, 954 F.2d at  15;          ______________                  ___ ____ ______          Bradley, 917  F.2d at  605; U.S.S.G.  1B1.3,  comment. (backg'd).          _______          Specifically     and  in  direct contradiction  to  the  position          asserted  by  appellant     relevant  conduct  may  include  both          uncharged conduct and conduct  underbracing counts that have been          charged  and then dropped.   See Tejada-Beltran, 50  F.3d at 110;                                       ___ ______________          Garcia, 954 F.2d at 15.          ______                    That ends the  matter.  In the usual case,  we review a          sentencing court's  drug quantity  determination  only for  clear          error.  See Sepulveda, 15 F.3d at 1196; Bradley, 917 F.2d at 605.                  ___ _________                   _______          Here,  the district court supportably  found that the delivery of          the crack and powdered  cocaine on January 15, and  the agreement          to sell additional crack  cocaine on January 24, were all part of          the  same  course  of  criminal  activity,  and,  thus,  relevant          conduct.  We see no error.                                          7                    By  like token,  the  fact that  the government  seized          sugar,  and  never  recovered  the half-kilogram  of  crack  that          appellant  promised to supply on January 24, does not sweeten the          bottom line by precluding reference to the agreed quantity in the          sentencing determination.   Indeed, "every court  to consider the          issue,  including this one, has concluded that an amount of drugs          which  a  defendant  negotiates  to  sell may  be  considered  as          relevant  conduct for  base offense  level  purposes even  if the          drugs are never produced." Bradley, 917 F.2d at 604.4                                     _______                    For these  reasons, we conclude that  the lower court's          drug quantity calculation cannot be faulted.                                          B.                                          B.                                          __                                   Drug Equivalency                                   Drug Equivalency                                   ________________                    Appellant's next  protestation, now familiar in all the          circuits,   criticizes  the   fact  that   the  guidelines,   and          specifically  U.S.S.G.   2D1.1,  equate  one  kilogram  of  crack          cocaine  to  one  hundred   kilograms  of  powdered  cocaine  for          sentencing purposes.5  We have  squarely rejected claims that the                                        ____________________               4To be sure, there  are exceptions to this rule,  see, e.g.,                                                                 ___  ____          U.S.S.G.    2D1.1,  comment.   (n.12)  (requiring   exclusion  of          negotiated  amount if "the court finds that the defendant did not          intend to  produce and was  not reasonably  capable of  producing          [it]"); United States v. Muniz, 49 F.3d 36, 41-42 (1st Cir. 1995)                  _____________    _____          (discussing application of  note 12); United States v. Gessa, 971                                                _____________    _____          F.2d  1257, 1265  (6th Cir.  1991) (remanding  for findings  with          respect to defendant's intent  and capability), but appellant has          not brought  his situation within the confines  of any recognized          exception.               5The  Sentencing  Commission  recently   submitted  proposed          guideline   amendments  that   would  substantially   reduce  the          equivalency  ratio between  crack  cocaine and  powdered cocaine.          See  60 Fed. Reg. 25,074, 25,075-76 (1995).  The proposed changes          ___                                          8          conversion  formula has  a greater  impact on  African-Americans,          and, thus, transgresses the Equal  Protection Clause of the Fifth          Amendment.   See United States  v. Singleterry, 29  F.3d 733 (1st                       ___ _____________     ___________          Cir.),  cert. denied, 115 S. Ct. 647  (1994).  There, we held the                  _____ ______          sentencing distinction  between crack  and powered cocaine  to be          constitutional, finding no  significantly probative evidence that          either Congress  or the  Sentencing Commission harbored  a racial          animus or  discriminatory intent.  Id.  at 741.  We  also found a                                             ___          sufficient  rational basis  for  the conversion  formula and  the          resultant sentencing scheme.  See id. at 740.                                        ___ ___                    It is  axiomatic  that, "[i]n  a  multi-panel  circuit,          newly constituted panels are,  for the most part, bound  by prior          panel decisions  closely on  point."   Williams v. Ashland  Eng'g                                                 ________    ______________          Co., 45 F.3d 588, 592 (1st Cir. 1995),  petition for cert. filed,          ___                                     ________ ___ _____ _____          63  U.S.L.W. 3819  (U.S. May  2, 1995)  (No. 94-1804-CFX).   This          principle applies in criminal as well as civil cases.  See, e.g.,                                                                 ___  ____          United States v.  Wogan, 938  F.2d 1446, 1449  (1st Cir.),  cert.          _____________     _____                                     _____          denied, 502 U.S. 969 (1991);  see also Lacy v. Gardino,  791 F.2d          ______                        ___ ____ ____    _______          980,  985  (1st  Cir.)   (applying  principle  in  habeas  corpus                                        ____________________          will become  effective on November 1,  1995, absent congressional          action to  the contrary.   See 28  U.S.C.   994(p)  (1988).   The                                     ___          Commission  has  not yet  decided  whether the  changes,  if they          become  law, should apply retrospectively.   See 60  Fed. Reg. at                                                       ___          25,074.  If the amendments  are eventually determined to  warrant          retroactive application,  appellant may then be in  a position to          seek appropriate relief in the district court.  See United States                                                          ___ _____________          v. Saccoccia,  ___ F.3d ___,  ___ n.27  (1st Cir. 1995)  [No. 93-             _________          1618,  slip op. at  65 n.27]; United States  v. Connell, 960 F.2d                                        _____________     _______          191, 197  n.10 (1st  Cir. 1992).   We express  no opinion  on the          subject,  but merely  note  the possibility  and proceed  without          further reference to what the future may bring.                                          9          context), cert. denied, 479 U.S. 888 (1986).  Because Singleterry                    _____ ______                                ___________          is controlling on this issue, we dismiss  appellant's claim.6                                          C.                                          C.                                          __                                  Other Adjustments                                  Other Adjustments                                  _________________                    Appellant complains  of two upward  adjustments to  his          BOL,  one for  role  in the  offense and  one for  obstruction of          justice.  Neither of these complaints need occupy us for long.                    1.  Role  in the Offense.  U.S.S.G.   3B1.1(a) provides                    1.  Role  in the Offense.                        ____________________          for  elevating a defendant's BOL  by four levels  if the district          court makes  both a status determination (that  the defendant was          "an  organizer or  leader of  a criminal  activity") and  a scope          determination ("that  the defendant's criminal  activity involved          five  or more participants or was otherwise extensive").  We have          explicated this  proviso  in a  series  of opinions,  see,  e.g.,                                                                ___   ____          United  States v. Rostoff, 53  F.3d 398, 413-14  (1st Cir. 1995);          ______________    _______          Tejada-Beltran, 50 F.3d at 110-12; United States v. McDowell, 918          ______________                     _____________    ________          F.2d 1004, 1011-12 (1st Cir. 1990), and it would be pleonastic to          rehearse that jurisprudence here.  Two comments should suffice.                    First, the  determination of  a defendant's role  in an                                        ____________________               6In any event,  every other circuit  that has grappled  with          this claim has rejected  the arguments necessary to find    2D1.1          in violation of the constitutional guarantee of equal protection.          See, e.g., United  States v. Moore,  ___ F.3d  ___, ___ (2d  Cir.          ___  ____  ______________    _____          1995) [No. 94-1330, slip op. at 4-7]; United States v. Cherry, 50                                                _____________    ______          F.3d 338, 342-44 (5th  Cir. 1995); United States v.  Williams, 45                                             _____________     ________          F.3d  1481, 1485-86 (10th Cir. 1995); United States v. Butler, 41                                                _____________    ______          F.3d  1435, 1442  (11th  Cir.), cert.  denied,  115 S.  Ct.  1987                                          _____  ______          (1995);  United States v. Johnson, 40 F.3d 436, 439-41 (D.C. Cir.                   _____________    _______          1994), cert. denied,  115 S.  Ct. 1412 (1995);  United States  v.                 _____ ______                             _____________          McMurray, 34 F.3d 1405,  1413 (8th Cir. 1994), cert.  denied, 115          ________                                       _____  ______          S. Ct. 1164 (1995); United States v. Frazier, 981 F.2d 92, 95 (3d                              _____________    _______          Cir. 1992), cert. denied, 113 S. Ct. 1661 (1993).                      _____ ______                                          10          offense is  necessarily fact-specific.   Appellate  courts review          such determinations only for  clear error.  See Garcia,  954 F.2d                                                      ___ ______          at 18; Dietz,  950 F.2d at  52.  Thus,  absent a mistake of  law,                 _____          battles  over  a defendant's  status and  over  the scope  of the          criminal  enterprise will  almost always  be won  or lost  in the          district court.   See McDowell,  918 F.2d at  1011 (urging  "that                            ___ ________          considerable  respect  be paid  to the  views  of the  nisi prius          court" in  connection with such findings)  (quoting United States                                                              _____________          v. Ocasio, 914 F.2d 330, 333 (1st  Cir. 1990)).  In this case, we             ______          see no hint  of clear  error in the  trial court's  determination          that appellant was the  leader of an enterprise of  the requisite          size.                    Appellant   strives  to  avoid  clear-error  review  by          isolating  a supposed mistake  of law.   He  says that  the court          erred  in making  its scope  determination; there could  not have          been  "five   or  more   participants"  because   only  convicted          individuals can be counted, and, here, the government indicted no          more than  three  persons (Graciani,  Delgado, and  Encarnacion).          The argument cannot withstand  the mildest scrutiny.  The  law is          pellucid that a scope  determination under section 3B1.1(a) turns          not on  the number  of people  convicted, but  on  the number  of          persons  involved  in  the  criminal  activity,  whether  or  not          indicted (let alone convicted).  See Dietz, 950 F.2d at 53.  That                                           ___ _____          is, the  defendant's BOL may  be elevated under  section 3B1.1(a)          "as  long as the  record permits the sentencing  court to make `a          specific finding, based on a preponderance of the evidence, which                                          11          pinpoints [the  participants] with  enough particularity  to give          credence to the upward adjustment.'"   Tejada-Beltran, 50 F.3d at                                                 ______________          113 (quoting McDowell, 918 F.2d at 1011).                       ________                    The record before  us clears this  hurdle with room  to          spare.    In  addition   to  Delgado,  Encarnacion,  G.R.M.,  and          appellant  himself, the  PSI Report states  without contradiction          that appellant was  the leader  and organizer of  a band,  mostly          comprised  of juveniles, that  was involved, inter  alia, in drug                                                       _____  ____          trafficking   activities.     The  numerosity   requirement  was,          therefore,  satisfied.7    See,  e.g.,  United  States  v.  Diaz-                                     ___   ____   ______________      _____          Villafane, 874 F.2d 43, 48 (1st Cir.) (approving similar role-in-          _________          the-offense adjustment despite lack of express identification  of          all co-participants), cert. denied, 493 U.S. 862 (1989).                                _____ ______                    2.    Obstruction  of  Justice.    The  district  court                    2.    Obstruction  of  Justice.                          ________________________          increased appellant's  BOL by  two levels under  U.S.S.G.  3C1.1.          The court predicated the enhancement on  a finding that appellant          threatened  both  a  confidential  informant  and  a  cooperating          codefendant  in an  effort to  influence their  testimony against          him.  Appellant now  challenges the adjustment on the  basis that                                        ____________________               7To trigger   3B1.1(a), a  scope determination must  yield a          supportable finding  that the criminal activity  meets either the          numerosity   requirement   or   the   guideline's   extensiveness                                     __          requirement.   See Rostoff,  53 F.3d  at 413;  Tejada-Beltran, 50                         ___ _______                     ______________          F.3d at 110.  Here, the record shows not only numerosity but also          extensiveness.   DEA  agents seized a  ledger that  established a          wide-ranging pattern of drug  trafficking activities, and a trash          bag containing  thousands of  empty vials  used to  package crack          cocaine.    On  this  basis,  the  extensiveness  requirement  is          satisfied.    See,  e.g.,  Dietz,  950  F.2d  at 53  (emphasizing                        ___   ____   _____          importance of "width, breadth,  scope, complexity and duration of          the scheme" in connection with an extensiveness determination).                                          12          he was not charged with obstruction of justice and did not  admit          to committing the underlying conduct.                    This  challenge is  too  little, too  late.   Appellant          never  advanced this objection in  the court below.   It is black          letter law  that,  "in connection  with  sentencing as  in  other          contexts, . . .  arguments not seasonably addressed to  the trial          court may  not be  raised  for the  first  time in  an  appellate          venue."  Dietz, 950 F.2d at 55; accord United States v. Piper, 35                   _____                  ______ _____________    _____          F.3d 611, 620 n.6 (1st Cir.  1994), cert. denied, 115 S. Ct. 1118                                              _____ ______          (1995); Sepulveda,  15 F.3d  at 1202.   Consequently, appellant's                  _________          challenge is foreclosed.                                          D.                                          D.                                          __                                 The Eighth Amendment                                 The Eighth Amendment                                 ____________________                    Appellant contends  that a  280-month sentence for  the          distribution of  so paltry an amount of crack cocaine constitutes          cruel  and  unusual  punishment   in  derogation  of  the  Eighth          Amendment.  We do not agree.                    The  Eighth  Amendment  does  not  require   a  precise          calibration  of crime  and punishment in  noncapital cases.   See                                                                        ___          United States v.  Saccoccia, ___  F.3d ___, ___  (1st Cir.  1995)          _____________     _________          [No. 93-1618,  slip op.  at 72].   At most, the  Eighth Amendment          gives rise  to a "narrow proportionality  principle," Harmelin v.                                                                ________          Michigan, 501  U.S.  957, 997  (1991) (opinion  of Kennedy,  J.),          ________          forbidding   only  extreme   sentences  that   are  significantly          disproportionate to the underlying  crime.  See id. at  1001; see                                                      ___ ___           ___          also Solem v. Helm, 463 U.S. 277, 288 (1983); Saccoccia, ___ F.3d          ____ _____    ____                            _________                                          13          at ___  [slip op. at 72];  United States v. Munoz,  36 F.3d 1229,                                     _____________    _____          1239 (1st Cir. 1994), cert. denied, 115 S. Ct. 1164 (1995).                                _____ ______                    It is, therefore, unsurprising that,  with a regularity          bordering on the echolalic, courts have repulsed Eighth Amendment          challenges to lengthy incarcerative sentences in drug cases.  For          example, in Hutto v. Davis, 454 U.S. 370, 374 (1982), the Supreme                      _____    _____          Court upheld a 40-year prison sentence for possessing nine ounces          of  marijuana with distributive  intent.  More  recently, a clear          majority  of the  Justices in  Harmelin, while  differing on  the                                         ________          constitutional   status   of   proportionality    review,   found          insufficient disproportionality to forestall a mandatory sentence          of  life without  parole  for possession  of  over 650  grams  of          cocaine.  Recent opinions  of the courts of  appeals are to  like          effect.  See, e.g., Munoz,  36 F.3d at 1239 (holding that  a 240-                   ___  ____  _____          month  sentence meted  out for  participation in  a crack-selling          conspiracy involving less than 900 grams of cocaine base accorded          with  the Harmelin standard);  United States v.  Wesley, 990 F.2d                    ________             _____________     ______          360, 367 (8th. Cir. 1993) (holding that 100-to-1 sentencing ratio          between  cocaine and  crack cocaine does  not violate  the Eighth          Amendment).  With  these cases as a  reference point, appellant's          sentence  cannot  successfully  be attacked  on  Eighth Amendment          grounds.                                          E.                                          E.                                          __                                 The Motion To Remand                                 The Motion To Remand                                 ____________________                    Following  the submission  of  the  parties'  appellate          briefs,  appellant's new  counsel filed  a  motion in  this court                                          14          asking  us  to  withhold decision  and  remand  the  case to  the          district court for  a hearing on "newly  discovered evidence" and          for a new trial.8  The  motion was accompanied by an affidavit of          G.R.M.  (now identified as German  R. Maldonado) that purports to          absolve  appellant   of  responsibility  for   the  offenses   of          conviction.    The motion  asserts  that  this "newly  discovered          evidence" warrants the relief requested.  We think not.                    In  the first place, appellant puts the cart before the          horse.   Concededly, a  motion  for a  new trial  based on  newly          discovered  evidence  can be  brought  while a  criminal  case is          pending on  direct  appeal.   See  Fed. R.  Crim.  P. 33.9    The                                        ___          question remains,  however, whether the  court of appeals  is the          appropriate  forum in  which  a criminal  defendant may  initiate          review of a Rule 33 motion by the district court, and, relatedly,          whether  a remand  is  necessary before  the  district court  can                                        ____________________               8In  point of fact, counsel filed two motions, both of which          rely on the same affidavit.  To the extent that the second motion          can be  read as  requesting different  relief   a  hearing as  to          whether  the plea agreement  is null  and void  (and, presumably,          whether the appellant should be permitted to withdraw his plea)            we deny it without prejudice  to the filing of a proper  petition          under  28 U.S.C.   2255 (1988).  The plea-withdrawal argument was          not raised below and, in the absence of essential factfinding, we          decline to entertain it on direct appeal.               9The rule states in pertinent part:                    A motion for a new trial based  on the ground                    of newly discovered evidence may be made only                    before  or  within   two  years  after  final                    judgment,  but if  an appeal  is  pending the                    court may grant the  motion only on remand of                    the case.          Fed. R. Crim. P. 33.                                          15          entertain  a Rule  33 motion.    In general,  both parts  of this          inquiry evoke a negative response.                    A  criminal defendant  who  aspires to  employ Rule  33          while his conviction is  pending on direct appeal is  not obliged          either to file a motion  for remand in the court of appeals or to          seek any  type of leave  from that court.   To the  contrary, the          proper procedure  under such circumstances is  for the defendant,          without further ado,  to file his Rule 33 motion  in the district          court.  See  United States v.  Phillips, 558 F.2d  363, 363  (6th                  ___  _____________     ________          Cir. 1977) (per curiam).  Once  the motion has been so  docketed,          the   district   court   has   jurisdiction   to   entertain   it          notwithstanding  the pendency of the appeal,  and may either deny          it  on the  merits or  indicate an  intention to  grant it.   See                                                                        ___          United States v. Fuentes-Lozano, 580  F.2d 724, 725-26 (5th  Cir.          _____________    ______________          1978) (per curiam); United  States v. Frame, 454 F.2d  1136, 1138                              ______________    _____          (9th Cir.) (per curiam),  cert. denied, 406 U.S. 925  (1972); see                                    _____ ______                        ___          also  United  States v.  Cronic, 466  U.S.  648, 666  n.42 (1984)          ____  ______________     ______          (noting correct  procedural progression).  If  the district court          denies the motion, the  defendant may take a further  appeal; and          if the court  proposes to  grant the motion,  it ordinarily  will          issue a written statement  to that effect so that  the defendant,          armed with the advisory, may then request an order of remand from          the appellate court.  See Frame, 454 F.2d at 1138.                                ___ _____                    We adopt this protocol,  requiring a Rule 33 motion  to          be filed initially in the district court when  a direct appeal of          a  criminal conviction is pending, for four main reasons.  First,                                          16          the  protocol accords with the  weight of authority.   See, e.g.,                                                                 ___  ____          Phillips,  supra; Frame,  supra.   Second, it  comports with  the          ________   _____  _____   _____          discernible  intention of the drafters of  the 1944 amendments to          Rule 33.   See, e.g.,  Frame, 454 F.2d  at 1138 (discussing  1944                     ___  ____   _____          amendments).   Third, it coheres with  our established procedural          paradigm for handling parallel situations on the civil side.  See                                                                        ___          Toscano  v.  Chandris,  934   F.2d  383,  386  (1st   Cir.  1991)          _______      ________          (explaining  that "if an appeal  is pending, a  Rule 60(b) motion          should first be filed in the trial court, and the district judge,          if inclined to allow it, may then request remand");  Commonwealth                                                               ____________          of Puerto Rico v. S.S. Zoe Colocotroni, 601 F.2d 39, 42 (1st Cir.          ______________    ____________________          1979) (ordaining  comparable procedure when,  during the pendency          of  an  appeal from  a final  judgment,  a party  claims  to have          discovered an exogenous basis for relief from the judgment).                    Last  but  not  least,  principles  of  sound  judicial          administration counsel that the  district court should be allowed          to  exercise its  discretion  to the  fullest extent  permissible          under Rule 33 before  the court of appeals becomes  enmeshed. See                                                                        ___          Frame, 454 F.2d at 1138.  The protocol we adopt  today meets this          _____          objective.   It takes advantage  of the district  court's greater          familiarity with  the case; it husbands  judicial resources, thus          eliminating  the  need  for  a  time-consuming  remand  in  those          situations  in  which  the  trial  court  discerns no  basis  for          granting a new trial; and, finally, it ensures that the merits of          the motion for new trial will be heard rapidly, while at the same                                          17          time keeping the earlier appeal on track.10                    Since appellant did not  follow this protocol in moving          to remand, his motion must in all events be denied for procedural          reasons.   But, there is an  added wrinkle.  If  the problem were          purely procedural,  we  would simply  deny the  motion to  remand          without prejudice to appellant's pursuit of redress under Rule 33          in  the district  court.  See  United States v.  Boberg, 565 F.2d                                    ___  _____________     ______          1059,  1063 (8th  Cir. 1977)  (affirming conviction  in analogous          circumstances "without  prejudice to  any motion to  the district          court  for a  new  trial  on  the  grounds  of  newly  discovered          evidence").  Here, however, the vice is more profound; the motion          is also substantively infirm.  We explain briefly.                    By  its express  terms, Rule  33 is  confined  to those          situations in  which a trial has  been had.  In  the court below,          appellant  admitted his guilt, abjuring a trial.  A defendant who                     ________          enters a guilty plea cannot thereafter use Rule 33 as  a wedge to          undo  his acknowledgement  that he  committed  the offense.   See                                                                        ___          United States  v. Collins, 898 F.2d 103, 104 (9th Cir. 1989) (per          _____________     _______          curiam); United States v.  Lambert, 603 F.2d 808, 809  (10th Cir.                   _____________     _______          1979); Williams v.  United States,  290 F.2d 217,  218 (5th  Cir.                 ________     _____________          1961)  (per curiam); see also  United States v.  Prince, 533 F.2d                               ___ ____  _____________     ______                                        ____________________               10The Fifth Circuit has suggested  in dictum that "to  avoid          delay" a criminal defendant may, alternatively, ask the court  of          appeals  to  remand  before  initiating  proceedings  to  in  the          district court.  See Fuentes-Lozano, 580 F.2d at 726.  If such an                           ___ ______________          alternative exists at all   a question on which we  need not pass             it is  available  only in  cases characterized  by exceptional          circumstances   (including  the   looming  prospect   of  unusual          hardship).                                          18          205,  208  (5th Cir.  1976) (applying  same  principle in  bar of          proffered Rule 33 motion following  plea of nolo contendere); see                                                                        ___          generally  3 Charles A. Wright, Federal  Practice and Procedure            _________                       _______________________________          556, at 313 (2d ed. 1982); cf. United States v.  Cordero, 42 F.3d                                     ___ _____________     _______          697, 698 (1st Cir.  1994) (holding that a defendant,  by entering          an unconditional  plea of guilty,  waives any right  to challenge          his  conviction  on  the  basis  of  earlier,  non-jurisdictional          rulings).   In fine,  Rule 33 "applies  only to cases  in which a          trial,  either  to the  court  or to  a  jury, has  taken place."          Lambert, 603 F.2d at 809.          _______                    We need go  no further.   Because Fed.  R. Crim. P.  33          cannot be  invoked to undermine  a conviction  predicated upon  a          guilty  plea,  we  deny appellant's  motion  to  remand.   To  do          otherwise would promote an exercise in futility.          Affirmed.          Affirmed.          ________                                          19
