               Not for Publication in West's Federal Reporter

          United States Court of Appeals
                      For the First Circuit

No. 08-1083

                    UNITED STATES OF AMERICA,

                               Appellee,

                                    v.

                       SERGIO MARTÍNEZ-VEGA,

                       Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Francisco     A. Besosa, U.S. District Judge]


                                 Before

                     Boudin, Selya, and Stahl,
                          Circuit Judges.



     María Soledad Ramírez-Becerra and Maria Soledad Ramirez-
Becerra Law Office, on brief for appellant.
     Nelson Pérez-Sosa, Assistant U.S. Attorney, Germán A.
Rieckehoff, Assistant U.S. Attorney, and Rosa Emilia Rodríguez-
Vélez, United States Attorney, on brief for appellee.


                          December 17, 2008
          Per Curiam.        Defendant pled guilty to one count of

conspiring with others to possess with intent to distribute 50

grams or more of crack cocaine within a public housing project and

within 1,000 feet of a public school, in violation of 21 U.S.C.

§§ 841(a)(1) & (b)(1)(A), 846, and 860, and was sentenced to 240

months' imprisonment, near the bottom of the guideline range as

computed by the district court.

          On appeal, defendant argues, first, that he was not

adequately   informed   of   the   consequences   of   his   guilty   plea,

particularly the maximum penalty for the offense to which he pled

guilty. It is true that the district court misspoke at the change-

of-plea hearing when it stated that the maximum penalty for that

offense was 20 years under 21 U.S.C. § 860; in fact, the maximum

penalty was life imprisonment under 21 U.S.C. § 841(b)(1)(A), as

accurately stated in the Presentence Report.           However, defendant

never sought below, and does not seek now, to vacate his guilty

plea and go to trial.1       Rather, in the district court, his only


     1
      Although he stated both at the change-of-plea hearing and at
the sentencing hearing that he "felt pressured" into entering a
straight plea as opposed to a negotiated plea, there is nothing in
the record to indicate that he felt pressured to plead guilty
rather than stand trial.

     If defendant were asking this court to vacate his guilty plea,
we would review such an unpreserved claim only for plain error and
would find none since the record contains no indication, much less
a "reasonable probability," that defendant would have decided to go
to trial rather than plead guilty if he had been correctly informed
of the maximum penalty for his offense at the time of his guilty
plea. United States v. Dominguez Benitez, 524 U.S. 74, 83 (2004).

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hesitation about pleading guilty was based on his persistent hope

(despite the repeated advice of his counsel and the prosecutor to

the contrary) that he could belatedly accept the government's prior

offer of a plea agreement (which defendant had previously rejected

and the government had since withdrawn), rather than enter a

straight plea.

            In this court, defendant's only dispute is with the

length of the sentence imposed, which was apparently higher than he

hoped to receive when he pled guilty.              That, of course, is no basis

for challenging the validity of his plea, United States v. Mercedes

Mercedes,   428    F.3d    355,   359   (1st       Cir.   2005),   much   less   his

sentence.   "Defendants cannot have it both ways--one way when they

plead and another when they come to sentence, unless they express

a willingness to have the pleas set aside."                 Dawson v. Wainwright,

440 F.2d 1259, 1262 (5th Cir. 1971).

            Moreover, any defect in defendant's plea colloquy had no

bearing on his ultimate sentence.                  The drug quantity used to

calculate defendant's guideline range was based not on the amount

of drugs to which he pled guilty but on the evidence presented by

the   government   at     sentencing.         Defendant     pled   guilty   to   the

indictment, which charged him with conspiring to possess with

intent to distribute "50 grams or more of crack cocaine" but did

not   specify   the     precise   amount      of    drugs    involved.      Because

defendant disputed the amount of drugs found attributable to him in


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the presentence report, the government called an agent involved in

the underlying investigation to testify on that issue at the

sentencing hearing.       Based on the agent's testimony, the court

found that the total amount of drugs involved in the conspiracy was

3.8 kilograms.     Defendant does not challenge the factual accuracy

of that calculation on appeal.

            Although defendant argued below that he should be held

accountable for only half of that amount (based on the agent's

testimony that defendant shared leadership of the drug point in

question with another defendant), the court found it unnecessary to

resolve that issue since the base offense level, 36, would have

been the same whether the drug amount attributable to defendant

were 3.8 or 1.9 kilograms.        See U.S.S.G. § 2D1.1(c)(2) (applying

level 36 to at least 1.5 but less than 4.5 kilograms of cocaine

base).    Defendant acknowledged as much below and does not press

this issue on appeal either.

            Defendant's only remaining argument is that the district

court    failed   to   give   adequate   weight   to   certain    purportedly

mitigating sentencing factors--namely, defendant's age (21), his

limited education (11th grade), his upbringing in a drug-infested

environment, and his lack of a criminal record.                  However, the

record indicates that the district court did consider those factors

but found them outweighed by the seriousness of the offense--large-

scale drug trafficking in plain view of young children on a


                                     -4-
basketball court in a public housing project and near a public

middle   school--and   the   resulting   need   for   punishment   and

deterrence.     Given the deference due to the district court's

balancing of the applicable factors, United States v. Deppe, 509

F.3d 54, 62 (1st Cir. 2007); United States v. Dixon, 449 F.3d 194,

205 (1st Cir. 2006), particularly where, as here, the chosen

sentence falls within the guideline range, Rita v. United States,

127 S. Ct. 2456, 2463 (2007), we decline to second-guess its

plausible reasoning or its defensible result, United States v.

Jiménez-Beltre, 440 F.3d 514, 518 (1st Cir. 2006) (en banc).

            Accordingly, the district court's judgment is summarily

affirmed.   See 1st Cir. R. 27.0(c).




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