
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2132                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    BRUCE RAINERI,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Shane Devine, Senior U.S. District Judge]                                       __________________________                                 ____________________                                        Before                           Selya and Boudin, Circuit Judges,                                             ______________                             and Carter,* District Judge.                                          ______________                                 ____________________            Dorothy F. Silver, by Appointment of the Court, for appellant.            _________________            Jean B. Weld, Assistant United States Attorney, with whom  Paul M.            ____________                                               _______        Gagnon, United States Attorney, was on brief for the United States.        ______                                 ____________________                                   December 9, 1994                                 ____________________                                    ____________________        *Of the District of Maine, sitting by designation.                 BOUDIN, Circuit Judge.  On April  6, 1992, Bruce Raineri                         _____________            ("Raineri") was indicted together with five other defendants:            Gary Neal,  William Kenney, Charles  Flynn, Richard  Ferguson            and Brian Raineri.  The lengthy indictment charged various of            the defendants with a  series of offenses arising out  of the            planning  and execution of a string of armed robberies in New            Hampshire during 1991.  The three charges against Raineri all            related  to  his  alleged  participation in  a  single  armed            robbery  of  the  home   of  a  grocery  chain  owner   named            Fitzpatrick during the summer of 1991, apparently in the hope            of obtaining the store proceeds.                 In  the   indictment,  count  14  charged  Raineri  with            conspiracy  to  obstruct   interstate  commerce  by   robbery            involving actual or threatened force and violence.  18 U.S.C.               1951.   Count 24  charged Raineri  with using  or carrying            firearms during and in relation to the conspiracy.  18 U.S.C.               924(c)(1).    Count  28 charged  Raineri  with  possessing            firearms (specifically,  a rifle  and  shotgun) after  having            previously been convicted for a crime punishable by more than            one year's imprisonment.  18 U.S.C.    922(g), 924(e)(1).                 On  June 17,  1992,  Raineri pled  guilty  to all  three            charges based on a  plea agreement with the government.   The            inducement offered in the plea agreement was the government's            commitment  to move for a departure under U.S.S.G.   5K1.1 if            (in the government's  judgment) Raineri provided  substantial                                         -2-                                         -2-            assistance.  In the plea hearing pursuant to Fed. R. Crim. P.            11,  Raineri told the court  that his plea  was voluntary and            was based  on no  inducement other  than the  plea agreement.            The prosecutor provided a proffer of evidence for each of the            counts   and  Raineri   stated   on   the   record,   without            qualification, that the description was correct.                 As to penalties, the court asked Raineri if he was aware            of the maximum penalties provided for the three offenses, and            Raineri replied:  "Ten years, 20 years, and five years."  The            court then said:                 Count fourteen is 20 years and a fine of $10,000 or                 both.       Count   Twenty-four   is   five   years                 imprisonment,  which  must  be consecutive  to  the                 crime of violence.  Count Twenty-eight is ten years                 and a fine of  $10,000 or both.  Do  you understand                 that?            Raineri  replied:  "Yes,  I do."   There was  no reference to            supervised release or restitution.   Neither defense  counsel            nor  the  prosecutor  expressed  any  disagreement  with  the            district court's description of penalties.                   On October  2, 1992, Raineri's counsel  filed motions to            withdraw his  guilty plea, to  continue his trial  (trial for            several  other  defendants who  had  not  pleaded guilty  was            scheduled for October 5), and to permit  counsel to withdraw.            As reasons for the  requested withdrawal of the guilty  plea,            Raineri's motion said  in conclusory  terms that  he was  not            guilty, that he had not understood the charges against him or            his exposure under the Sentencing Guidelines, and that he was                                         -3-                                         -3-            suffering at  the time of  his plea from lack  of medicine to            counteract his drug dependency.                    On October 5, 1992,  the district court denied Raineri's            motion  to withdraw his guilty plea but appointed for him new            counsel, who also now represents Raineri on this appeal.  The            district court then proceeded to try three co-defendants, the            other two having  pleaded guilty.  The co-defendants who were            tried--Neal, Kenney and Flynn--were subsequently convicted on            a number of charges, and this court largely affirmed.  United                                                                   ______            States  v.  Neal,  36  F.3d  1190 (1994).    The  convictions            ______      ____            included  charges  relating  to  the August  3,  1991,  armed            robbery of  the Fitzpatrick  home in  which Raineri  had been            implicated.                 In March  1993, Raineri's new counsel  filed new motions            seeking  withdrawal of  the  guilty plea.    The reasons  now            offered were that  Raineri had not been mentally competent to            plead guilty  because  he was  then  suffering from  lack  of            methadone;  that the  government  had failed  to disclose  at            sentencing  its additional  (alleged)  promise  that  Raineri            would  be given immediate  access to methadone  if he pleaded            guilty; and  that he had  not been adequately  represented by            prior counsel.  Faced with these claims, the court  scheduled            an evidentiary hearing for April 15, 1993.                   At the April 15 hearing, Raineri testified; he described            his alleged defenses (e.g., that he had not been at the scene                                  ____                                         -4-                                         -4-            of the break-in and had never possessed the rifle and shotgun            attributed to  him)  and said  that  the intended  crime  was            burglary of an  unoccupied home rather than  armed robbery of            individuals.   He  also said  that he  pleaded guilty  to get            methadone  and  that he  had  not  known that  the  five-year            sentence  under count  24  was mandatory.   Finally,  Raineri            explained  that he had delayed  from June to  October 1992 in            seeking  to  withdraw his  plea  because  of difficulties  in            reaching   his  then-counsel.     Raineri's   former  counsel            testified at length about his representation, admitting  that            he  had not returned some phone calls from Raineri during the            summer of 1992.                     On April  20, 1993,  Raineri's counsel filed  an amended            memorandum of  law urging  another basis for  withdrawing the            guilty plea.   Counsel explained  that Raineri's  presentence            report  had been received in March 1993, and it disclosed for            the first  time that  Raineri had three  previous convictions            for violent felonies or  serious drug offenses.  Raineri  had            been advised at the plea hearing that the penalty under count            28 was a maximum  of 10 years' imprisonment, $10,000  fine or            both;  but his triple felony record meant that he was subject            to a minimum of  15 years' imprisonment and the  maximum fine            was $25,000.  18 U.S.C.    922(g), 924(e)(1).  The government            responded that in order to "remedy any possible  defects," it                                         -5-                                         -5-            was moving to dismiss  count 28 of the indictment  under Fed.            R. Crim. P. 48(a).                 On April 25,  1993, the district court  entered an order            granting the  motion to  dismiss  count 28  pursuant to  Rule            48(a).  The court rejected as untrue Raineri's claim that the            government had  induced his plea  by promising  to place  him            immediately in a  methadone treatment program.  It found that            his original counsel had not provided ineffective assistance.            Finally,  the court found  a lack of  good cause  to permit a            withdrawal of the guilty  pleas pursuant to Fed. R.  Crim. P.            32(d):                      Here, the  timing (3-3/2 months after entry of                 plea); (lack of) force and plausibility of reasons;                 (unpersuasive) assertion of innocence;  the finding                 of no breach of the plea agreement; and the finding                 that  the defendant's  plea on  June 17,  1992, can                 still  be regarded  as voluntary,  intelligent, and                 otherwise in conformity with Rule 11, Fed. R. Crim.                 P.; requires the further  finding that "no fair and                 just   reason"  exists  such   as  to   permit  the                 withdrawal of the defendant's pleas.  United States                                                       _____________                 v. Tilley, 964 F.2d 66, 72 (1st Cir. 1992).                 _________                 On  September  27, 1993,  the  court  held a  sentencing            hearing.   At Raineri's behest, his  brother Brian testified.            He  implicated Bruce  in the  conspiracy to  rob Fitzgerald's            home, but said  Bruce had not been present at  the house.  He            also said that  no one had expected the house  to be occupied            or a  gun to be used, although in fact the house was occupied            and  co-conspirator  Kenney  turned  out  to  be  carrying  a            handgun.  Finally, Brian  testified that the cooperation that                                         -6-                                         -6-            he  provided in testifying at  the October 1992  trial of the            co-defendants  was also supposed  to inure to  the benefit of            Bruce.  The government presented testimony that any departure            in  favor of  Bruce  Raineri  was  to be  based  on  his  own            cooperation,  not  that  of   his  brother,  and  that  Bruce            Raineri's attempted  withdrawal of  his guilty plea  made him            useless to the government as a trial witness against the non-            pleading  defendants.    Other  government  evidence, largely            hearsay   but  still   properly  considered   at  sentencing,            indicated that Bruce Raineri  had transported his brother and            the  stolen property  after the  break-in was  completed, and            that he  and his brother  moved a rifle and  shotgun from the            van to another car.                   Raineri himself testified at the sentencing hearing.  He            admitted helping  to plan  the break-in and  accompanying his            brother to  a rendezvous  point.  He  denied that a  rifle or            shotgun  had  been carried  or that  he  had known  about any            weapon.   He said that at the time  of his guilty plea he had            been "in a severe state of withdrawal from methadone" and had            expected  the methadone  treatment  to  recommence "upon  the            guilty  plea."  He also  said that he  knew that the sentence            for carrying  a firearm under count 24  would be consecutive,            but not that it was mandatory.                 At  the end of the sentencing  hearing, the court found,            based on the testimony at the co-defendants' trial, that guns                                         -7-                                         -7-            had been  carried in the  van by the  Raineri brothers.   The            court also found that Raineri had obstructed justice by lying            to  the court  and  was  not  entitled  to  a  reduction  for            acceptance of responsibility.   Raineri was then sentenced to            60 months' imprisonment on  count 14, 60 months' imprisonment            on  count 24  to  be served  consecutively,  and five  years'            supervised release, and he was ordered to make restitution in            the amount of $5,988.  This appeal followed.                                         I.                   Raineri's  first and  most powerful  claim on  appeal is            that his original  guilty plea was not "knowing  or voluntary            and otherwise in conformity with Rule 11(c)(1) because he was            not properly informed of the consequences of his plea."  Rule            11 prescribes numerous  steps that must be  followed before a            defendant  is allowed to plead guilty.   As to penalties--the            issue with which we  are immediately concerned--the rule says            that before accepting the guilty plea, the court must address            the  defendant  personally  in  open  court  and  inform  the            defendant of, and determine if the defendant understands,                      the mandatory minimum penalty provided by                      law,  if  any, and  the  maximum possible                      penalty  provided  by  law including  the                      effect   of   any   special   parole   or                      supervised release term,  . . . and  when                      applicable, that the court may also order                      the defendant to make restitution  to any                      victim of the offense.            Fed. R. Crim. P. 11(c)(1).                                         -8-                                         -8-                 One  might expect  that whatever  the complexity  of the            Sentencing Guidelines, it would  be easy accurately to advise            the defendant of the  statutory penalties.  But as  this case            shows,  the  statutory  penalties  themselves  are  sometimes            complicated;  the defendant  may  be  charged  with  multiple            counts; and the penalties may depend on information  (such as            prior convictions) that is not automatically available to the            district  judge  at  the  time  of  the plea.    Accordingly,            district judges often rely heavily, although not exclusively,            on  the prosecutor to provide the court with a description of            statutory penalties or  at least  to advise the  court if  it            misstates the terms.                  Here,  the   prosecutor  did  provide  a   statement  of            statutory penalties in the plea agreement, the district court            followed this script, and  the result was a set  of mistakes.            Most important, Raineri was incorrectly told that the penalty            for  count  28,  the  possession of  firearms  charge,  was a            maximum  of  10  years'  imprisonment  and  a  $10,000  fine.            Because Raineri apparently had three prior felonies involving            violence  or  serious drug  offenses,  he  was  subject to  a            mandatory minimum  of 15 years' imprisonment  and the maximum            fine  was increased to $25,000.  It appears that the district            court, the prosecutor and Raineri's then defense counsel were            all  unaware  that  Raineri  was  subject  to  this  enhanced            penalty.                                           -9-                                         -9-                 Whether Raineri was adequately counselled on the penalty            for count  24 is debatable.  The district court told him that            the  penalty  was "five  years  imprisonment,  which must  be            consecutive to the crime  of violence", so there is  no doubt            that  Raineri knew that he was subject to a consecutive five-            year  sentence.  Raineri denies that  he understood that this            five-year term was mandatory,  while the government points to            the term "must" as  implying that the term is mandatory.  The            district  court made  no  findings on  the point,  apparently            because  Raineri's  counsel  did  not  separately  urge  this            alleged  misunderstanding as  a basis  for setting  aside the            plea.                 Finally, the court did not expressly advise Raineri that            supervised release  might be imposed  or of his  liability to            pay restitution.  Both warnings are required by  the language            of  Rule 11(c)(1) quoted above.  The result is three separate            admitted omissions or mistakes in  the advice required to  be            given  by  the  rules  (the  misstatement  of  the  fine  and            imprisonment levels  under count  28; the failure  to mention            supervised  release   terms;  and  the  failure   to  mention            restitution).   A possible fourth mistake  may exist (failure            to explain the mandatory  character of the five-year sentence            under  count 24),  depending on  how the  court's warning  is            read.                                         -10-                                         -10-                 The  legal  effect  of  a  Rule  11  violation  is  more            difficult to  state concisely.   Ordinarily, a  defendant who            pleads  guilty has no automatic right to withdraw a plea even            before sentencing.  See, e.g., United States v. Buckley,  847                                ___  ____  _____________    _______            F.2d  991, 998 (1st Cir.  1988), cert. denied,  488 U.S. 1015                                             ____________            (1989).   Rule  32(d)  provides that  "the  court may  permit            withdrawal of the plea upon a showing by the defendant of any            fair and just reason," and we have said that decisions by the            district  court under  this  standard are  reviewed only  for            abuse  of discretion.  See  United States v.  Doyle, 981 F.2d                                   ___  _____________     _____            591,  594 (1st  Cir. 1992).   Recently,  in United  States v.                                                        ______________            Parrilla-Torado, 22 F.3d 368, 371 (1st Cir. 1994), this court            _______________            said that the exercise of discretion under Rule 32(d) depends            on "the overall situation, most prominently"                      (1)  the  plausibility  of   the  reasons                      prompting the requested  change of  plea;                      (2) the timing of the defendant's motion;                      (3) the  existence or nonexistence  of an                      assertion of innocence; and  (4) whether,                      when   viewed   in   light  of   emergent                      circumstances,   the   defendant's   plea                      appropriately  may  be  characterized  as                      involuntary,   in   derogation   of   the                      requirements imposed by  Fed. R. Crim. P.                      11, or otherwise legally suspect.            Id. at 371  (omitting footnote and citations).            ___                 Yet  "discretion"  may be  somewhat  more  limited where            there  is an outright violation of Rule 11 rather than merely            second thoughts  by a  defendant prompting him  to reconsider            his plea.   Originally,  a line  of decisions emanating  from                                         -11-                                         -11-            McCarthy  v. United  States, 394  U.S. 459  (1969), suggested            ________     ______________            that  the district  court had  to allow  the withdrawal  of a            guilty plea where the earlier plea hearing did not conform to            Rule 11.  In response, Rule 11 was itself amended  in 1983 to            add  Rule  11(h),  which  is entitled  "Harmless  Error"  and            provides:  "Any variance from the procedures required by this            rule whichdoesnotaffect substantialrightsshallbedisregarded."                 In this case,  Raineri was  told, or at  least ought  to            have  understood  from  what  he  was  told,  that  he  faced            potential  imprisonment  of 35  years and  a maximum  fine of            $20,000.  His actual exposure was worse than what he was told            (a minimum  of 20  years and  a maximum of  45), but  what he            received was less--indeed far less--than the maximum of which            he had been inaccurately warned.  He received only ten years'            imprisonment, five years' supervised  release and no fine but            about  $5,000 in restitution.  The question is what should be            done where the defendant is not advised of the full penalties            to which he  may be subject but actually  gets the benefit of            the lesser penalty.                 Harmless  error  analysis  usually  poses  the  question            whether the error influenced the decisionmaker or whether the            ultimate  outcome would have been  the same if  the error had            not been  committed, but this  is not necessarily  the proper            perspective  in a  case such  as our  own.   It is  true that            Raineri might not have  pled guilty if he had  been correctly                                         -12-                                         -12-            told that a far larger penalty threatened him.  But one might            ask why the defendant  is entitled to complain if  the actual            punishment is no worse than what he was told, and what he was            told was even  less than the  law allows.   Arguably, such  a            defendant  ought to  be pleased  with the  error--unless, for            extraneous  reasons, he has in the  meantime changed his mind            about making the plea.                 Rule  11(h) did not adopt  a "but for"  test of harmless            error; it speaks of  error affecting the "substantial rights"            of the defendant, a  general phrase that allows a  measure of            interpretation.   The Advisory Committee notes  to Rule 11(h)            provide, as an illustration of harmless error, an instance in            which "the  judge understated  the maximum  penalty somewhat,            but  the  penalty  actually   imposed  did  not  exceed  that            indicated  in the  warnings."   There is  some case  law that            supports the view  that a  defendant should not  be heard  to            complain if  he  ultimately gets  the benefit  of the  lesser            sentence that was inaccurately  described to him at the  time            of the plea,  see, e.g.,  United States v.  Bashara, 27  F.3d                          _________   _____________     _______            1174, 1179-80  (6th Cir.  1994); United States  v. Bachynsky,                                             _____________     _________            934 F.2d 1349, 1359-60  (5th Cir.), cert. denied, 112  S. Ct.                                                ____________            402  (1991), but  the law  is admittedly  not uniform  in all            circuits or perfectly settled.  See United States v. Whyte, 3                                            ___ _____________    _____            F.3d 129, 130 (5th Cir. 1993).                                         -13-                                         -13-                 We think that a  defendant who gets the benefit  of such            an inaccurately  described  lesser sentence  is normally  not            prejudiced, but  that there can  be no absolute  rule because            such misadvice  may not  always  be harmless.   For  example,            imagine  a defendant  who  is wrongly  told  at the  Rule  11            hearing  that the maximum penalty for his crime is five years            when in fact the maximum penalty is 15 years.  The  defendant            might fairly expect, given his  own past history and  limited            role in the offense,  that the maximum sentence (whatever  it            might be) would not be likely to be imposed.  If he then pled            guilty and thereafter received a five-year sentence, he might            reasonably think that the  misinformation had prejudiced  him            in a rather concrete way.  Cf. United States v. Whyte, 3 F.3d                                       ___ _____________    _____            at 130.                 In   our  case,   there  is   no  indication   that  the            misinformation given to  Raineri at the  Rule 11 hearing  led            him  to expect a  lesser penalty  than he  actually received.            Raineri had an extensive criminal record and therefore little            basis to  expect lenient treatment, apart  from any departure                                                _____            motion the  government might make if  he provided substantial            assistance.   Absent a departure motion, we see no reason why            Raineri  should  have expected  that  his  sentence would  be            substantially less than 15 years (here, 10 in prison and 5 on            supervised release), a figure  that is less than half  of the            maximum amount of which he had been warned.                                         -14-                                         -14-                 The  same  reasoning  applies  to the  district  judge's            failure to  inform Raineri  of the possibility  of supervised            release  and of restitution, rather than a fine.  Courts have            commonly  held  that  such   errors  are  harmless  when  the            defendant receives  a combined  sentence of imprisonment  and            supervised  release that  is  less than  the maximum  term of            imprisonment earlier described.   See, e.g., United States v.                                              _________  _____________            Gracia, 983  F.2d 625, 628 (5th Cir. 1993).  The same rule is            ______            followed where  the defendant is required  to pay restitution            in an  amount less than  the potential fine  of which he  was            warned.  See, e.g.,  United States v. Padin Torres,  988 F.2d                     _________   _____________    ____________            280, 283-84 (1st Cir. 1993).                                         -15-                                         -15-                                         II.                 Raineri's  second claim  of error  is that  the district            court "abused  its discretion and acted  beyond its authority            under  Rule 48(a)"  in  granting the  government's motion  to            dismiss count 28 after Raineri had pled guilty.  Ordinarily a            defendant is  not entitled to  appeal a dismissal  under Rule            48(a).   However, Raineri argues that  the wrongful dismissal            undercut  the plea agreement and that he was entitled on that            ground  to withdraw  his guilty  plea.  The  district court's            refusal  to allow  him to  withdraw his  plea is,  of course,            reviewable  at  this  time  together with  any  legal  issues            bearing on that refusal.                 If count 28 had been dismissed with prejudice, we  would            summarily reject  Raineri's argument  as a  rather mechanical            claim that he did not get what he bargained for.  It is quite            true  that Raineri's  bargain included  a plea  of  guilty to            count  28, but a dismissal of that count with prejudice would            be an even  better outcome for Raineri as far  as count 28 is            concerned.    To  the extent  that  the  dismissal helped  to            preserve  his guilty plea  on other counts,  the dismissal of            count  28 might disadvantage him,  but it is  hard to see why            the dismissal  would thereby be wrongful  or the disadvantage            one with which a court should be concerned.                 The  difficulty in this case is  that the government did            not ask for a  dismissal with prejudice nor did  the district                                         -16-                                         -16-            court say that the dismissal was with prejudice.  Customarily            Rule 48(a)  dismissals are  without prejudice and  permit the            government  to reindict  within  the statute  of limitations.            See,  e.g., United States v.  Matta, 937 F.2d  567, 568 (11th            __________  _____________     _____            Cir. 1991).   Surprisingly,  Raineri's counsel does  not urge            this  defect, possibly  for  fear of  conceding that  Raineri            could  be reprosecuted on  count 28.   But we think  that the            issue is so patent,  and the threat of unfairness  to Raineri            is so severe,  that the  matter would raise  a "plain  error"            issue, even if  it were  not intimately related  to the  Rule            48(a) issue raised by Raineri.                 A defendant  who pleads to  a set of charges  may or may            not  believe that  the  guilty  plea  will produce  a  lesser            penalty; but one thing  the defendant who agrees to  plead on            all counts does expect is that there will be no  future trial            on any of  these counts.  A defendant willing to plead guilty            to all counts might well be unwilling to plead guilty to some            of them  while leaving others available to the government for            future  prosecution.  We have no reason  to think that if the            government had  offered  to accept  a  plea from  Raineri  on            counts 14  and 24  and said  that  it reserved  the right  to            prosecute on  count 28 at  a later  date, that he  would have            pleaded guilty to any of the counts.                      "[A]  court of  appellate  jurisdiction may  . .  .            direct the entry of such appropriate judgment . . . as may be                                         -17-                                         -17-            just under  the circumstances."   28 U.S.C.    2106.   It  is            possible  that  this  court   could  itself  order  that  the            dismissal  be modified to reflect that it is a dismissal with            prejudice.  See, e.g., United States v. Rossoff, 806 F. Supp.                        _________  _____________    _______            200,  202-03  (C.D. Ill.  1992)  (holding  that a  court  may            dismiss  under Rule 48(a) with prejudice  if retrial would be            fundamentally  unfair).   The  government  would have  little            equity in opposing such a directive.  Alternatively, we might            rule now, as part of our holding, that any future prosecution            of Raineri on count 28 would  constitute harassment and would            be  barred--a  determination that  would  be  likely to  give            Raineri  substantial   protection.    See  United  States  v.                                                  ___  ______________            Salinas, 693 F.2d 348 (5th Cir. 1982).            _______                 Nevertheless,   the  choice  to   forego  permanently  a            prosecution is ordinarily made by the executive branch.  See,                                                                     ____            e.g.,  Wayte  v. United  States,  470 U.S.  598,  607 (1985).            ____   _____     ______________            Thus, while a dismissal of count 28  with prejudice is a quid            pro quo for  retaining the guilty pleas on  counts 14 and 24,            we think that there  is no reason to compel the government to            accept  a dismissal  with prejudice  if  it wants  instead to            surrender the guilty  pleas and give the  defendant the trial            he  is demanding.    Accordingly,  on  this single  issue  we            propose  to  remand to  require  the  government to  make  an            appropriate election.                                         -18-                                         -18-                                         III.                 Raineri's remaining  assertions  of error  require  less            discussion.    One  of  them concerns  the  district  court's            decision to reject Raineri's  claim that his original counsel            provided  ineffective  assistance.    Prior  to  the  Supreme            Court's decision  in Strickland  v. Washington, 466  U.S. 668                                 __________     __________            (1984), we  reviewed a  district judge's determination  as to            competence  only  for  clear  error.   See  United  States v.                                                   ___  ______________            DiCarlo, 575 F.2d 952,  954-55 (1st Cir.), cert. denied,  439            _______                                    ____________            U.S. 834 (1978).   Since Strickland,  the standard of  review                                     __________            may  be more  rigorous where  the issue  is not  a matter  of            historical  fact  but  of  deciding how  much  competence  is            enough.   See United States v.  McGill, 11 F.3d  223, 226 n.2                      ___ _____________     ______            (1st Cir. 1993).  Raineri's claim fails under any standard we            might apply.                 In  this  instance,  Raineri's  new  counsel offers  two            separate claims of incompetence.  The first is that Raineri's            counsel failed to advise Raineri properly as to the penalties            to which he was  subject, and Raineri points  specifically to            the failure  to identify  the 15 year  minimum applicable  to            count 28.   Hill v. Lockhart, 474 U.S. 52,  57 (1985).  Here,                        ____    ________            even  if Raineri  could show incompetence  on this  point, he            could  not  show prejudice,  which  is  also required.    The            failure  of  counsel  to  advise Raineri  accurately  of  the            penalty on count  28 was not  prejudicial to Raineri  because                                         -19-                                         -19-            count  28  was  dismissed and  that  dismissal  will be  with            prejudice if the guilty pleas are allowed to stand.                 Raineri's  brief  offers,  as  the  second  instance  of            alleged   incompetence,  the  asserted  failure  of  original            defense counsel "to conduct a reasonable investigation into a            potential line of defense . . . ."  No such "line of defense"            is  identified, although  Raineri's new  counsel may  have in            mind the  possibility  that the  rifle and  shotgun were  not            present  in the van and that Kenney's possession of a handgun            was unknown to and unforeseeable by Raineri.  Raineri's brief            simply  asserts,   as  the   sole   evidence  of   inadequate            representation, that  the time  sheets of Raineri's  original            defense counsel show "that the attorney spent only 1.8  hours            .  . . reviewing applicable law" and this research took place            prior to counsel's first meeting with the defendant.                 Counsel's time records might provide a basis for further            inquiry but the records do not, standing  alone, prove either            that   counsel  was  incompetent  or  that  the  incompetence            prejudiced defendant.   Perhaps Raineri told  his lawyer when            they  first met that  he was guilty as  charged on all counts            and provided sufficient  detail so that counsel  saw no point            in  further  investigation  of  the  merits  and  turned  his            attention  to  securing  a  plea agreement  providing  for  a            substantial  downward  departure  if  Raineri  provided  full            assistance.    On this  record  we know  only  that Raineri's                                         -20-                                         -20-            counsel originally negotiated  what appeared to be  favorable            plea  bargain,  and  Raineri  squandered  the opportunity  by            refusing at the last moment to provide full cooperation.                 This brings us  to Raineri's fourth  and final claim  of            error.  Raineri now argues that the government was obliged to            move for  a downward departure  because Raineri  did in  fact            provide  substantial  assistance  to  the  government.    The            government's  plea  agreement  expressly  said  here  (as  it            commonly does)  that the substantial-assistance  decision was            one  to be  made solely  by the prosecutor.   But  in certain            limited situations,  the government's  failure to move  for a            downward  departure may  be the  subject of  judicial review.            Wade v. United States,  112 S. Ct. 1840, 1844  (1992); United            ____    _____________                                  ______            States v. Canada, 960 F.2d 263, 269 (1st Cir. 1992).            ______    ______                 We will assume arguendo that, as he now  claims, Raineri                                ________            gave the government a considerable amount of information that            may have been  useful to  it.  Possibly,  under a  dictionary            definition  of  the  term,  the assistance  could  be  called            "substantial."  But Raineri was not automatically entitled to            a dictionary definition where, in the very same document, the            government reserved  to itself  the authority to  decide what            assistance  was substantial.   The  government may  decide to            make such  a motion (and  the district court  to grant  it if            made)  based on quite limited help  or results, United States                                                            _____________            v. Torres,  33 F.3d 130,  133 (1st  Cir. 1994); but  since by               ______                                         -21-                                         -21-            statute the motion is  discretionary with the government, see            18 U.S.C.   3553(e),  the government may choose to  insist on            quite a lot of assistance if it wants to do so.                 Whatever the limitations  on the government's  authority            to refuse  to make  a departure motion,  it is obvious  to us            that  the government  was  entitled to  expect Raineri  to be            available  to  testify at  his  co-defendants'  trial if  the            government  wanted to use him.  It  is equally clear that his            last-minute attempt to deny his guilt after earlier admitting            it undermined his value as a witness.  This was  not the kind            of  "substantial" assistance that the government was entitled            to demand.  Sullivan v. United States, 11 F.3d  573, 575 (6th                        ________    _____________            Cir.   1993)    (holding   that,   absent   bad    faith   or            unconstitutional motive,  a prosecutor may decline  to seek a            substantial-assistance reduction for any rational reason).                 Finally, we have considered whether guilty  pleas should            be set  aside--even though  none of the  individual arguments            made by Raineri is persuasive--under some type of per se rule            or  because of a threatened  miscarriage of justice.   On the            former  point,  we  think that  there  may  well  be Rule  11            hearings so fundamentally defective that harm must be assumed            or deemed irrelevant.  Cf. United States v. Medina  Silverio,                                   ___ _____________    ________________            30  F.3d 1, 2-4 (1st  Cir. 1994) (almost  complete absence of            Rule 11  colloquy).  But just  as there are  many fair trials            but few  perfect ones, so  flaws are  also to be  expected in                                         -22-                                         -22-            Rule  11  proceedings  as  they,  and  the  penalties  to  be            described,  grow  ever more  complicated.    Where the  basic            structure  of the  Rule 11  proceeding is  observed, and  the            individual  errors are  shown to be  harmless, we  think that            Rule 11(h)'s  explicit forgiveness  of harmless error  should            normally be respected.                 The  outcome  would  be   quite  otherwise  if  we  were            persuaded  that  a  miscarriage  of   justice  had  resulted.            Despite  the  emphasis  placed  by  Rule  11  on  advising  a            defendant of foregone trial rights and prospective penalties,            most  laypersons would probably  think that a  court taking a            plea  ought  to  be  concerned   beyond  all  else  with  the            voluntariness of  the plea and the existence  of a reasonable            basis for  thinking that  the defendant was  actually guilty.            We  would  view  with  special  concern  any  defect  in  the            proceedings that led us to believe that a plea was coerced or            that there was no factual basis for the plea.                 Here,  voluntariness in  the  ordinary sense  is not  in            doubt.    Raineri  claimed  that  the  plea  was  induced  by            methadone withdrawal and a  false promise of immediate relief            by methadone treatment following the  plea.  But the district            court  did  not  accept  the  claim,  and  its  findings  are            controlling  in the absence of clear error.  Tilley, 964 F.2d                                                         ______            at 70-71.   Indeed, there  is substantial  reason to  believe            that  the  claim  is  false--for  example,  Raineri  did  not                                         -23-                                         -23-            complain of the  lack of  methadone when  interviewed by  the            probation  officer after  the  guilty plea--but  in any  case            Raineri does not now question the district court's resolution            of the issue.                  It  is also  clear that  there was  a factual  basis for            Raineri's guilty  pleas.  He  himself admitted guilt  on each            count  and agreed  with the  government's description  of the            evidence against him, which included the presence  of a rifle            in  the van.    Even  in  his  retraction,  he  confessed  to            conspiracy to engage in  burglary but denied the  presence of            guns  in the van.   At the co-defendants'  trial an informant            testified that the Raineris had possessed guns in the van and            transferred  them from  one  vehicle to  another.   Raineri's            claim of innocence is an element  in the Rule 34 equation but            it does not  come close to  a showing that  a miscarriage  of            justice has occurred.                 The case is remanded to  permit the government to  elect            whether to  consent to a  modified order dismissing  count 28            with prejudice.  If the government  consents, then the guilty            pleas   and  sentences  on  counts  14  and  24  will  remain            undisturbed.   If the government  does not consent,  then the            district  court  is  directed   to  vacate  the  judgment  of            conviction and the sentences on counts 14 and 24 and to allow            the  guilty pleas to be withdrawn.  The government would then                                         -24-                                         -24-            remain  free  to  reindict on  count  28  or  to request  the            district court to vacate its order dismissing count 28.                 It is so ordered.                  ________________                                         -25-                                         -25-
