USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
_________________________

No.

93-2042
UNITED STATES OF AMERICA,
Appellee,
v.
JORGE GONZALEZ-VAZQUEZ,
Defendant, Appellant.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
___________________
_________________________
Before
Selya, Boudin and Stahl, Circuit Judges.
______________
_________________________

Jose A. Fuentes Agostini, with whom Dominguez & Totti was on

________________________
_________________

brief, for appellant.

Jose A. Quiles-Espinosa, Senior Litigation Counsel, with
________________________
whom Guillermo Gil, United States Attorney, Edwin O. Vazquez,
_____________
_________________
Assistant United States Attorney, and Rosa Emilia Rodriguez________________________
Velez, Assistant United States Attorney, were on brief, for
_____
appellee.
_________________________
September 8, 1994
_________________________

SELYA, Circuit Judge.

SELYA, Circuit Judge.
______________
that

we ascertain

denying
adding

whether the

appellant's motion
a

two-level

This criminal

weapons

district court

to

retract his
enhancement

guideline sentencing range (GSR).

appeal requires

erred either

guilty

plea or

when calculating

in

in

the

Detecting no error, we affirm.

I.
I.
__
The Background
The Background
______________
On March 26, 1993, defendant-appellant

Jorge Gonzalez-

Vazquez (Gonzalez) pleaded guilty to conspiracy to import heroin,

and conspiracy to
it.

See
___

charges

possess heroin with

21 U.S.C.

963,

more

than

15

codefendants imported
the United

played numerous
heroin

846, 952(a),

distribute

and 841(a)(1).

The

grew out of a sophisticated scheme or series of schemes,

lasting

into

the intent to

acting

in

which

appellant

large quantities of heroin

States,

and then

roles in

overseas,

sometimes

months,

purveying

courier, and

23

from Hong Kong

it.

this elaborate plot,

sometimes
as

distributed

and

Appellant

sometimes buying

drugs

sometimes

domestically,
serving

as

bodyguard.
In return for

appellant's guilty plea,

agreed to recommend a sentence

the agreement contained
the

GSR.

charges

The
levelled

unresolved:
firearm

at the low end

no stipulation as

government also
against

agreed

appellant.

the government

of the GSR

but

to the parameters

of

to drop
One

several

charge

other

remained

a count accusing appellant of using or possessing a

during and in relation to a drug-trafficking offense, in

2

violation of 18 U.S.C.

924(c)(1).1

As to that

count, the plea

agreement preserved appellant's right to trial.

Approximately
plea,
his

four months

appellant moved to withdraw it.

motion.

U.S.S.G.

At

the disposition

2D1.1(b)(1)

and boosted

for appellant's possession of

adjustments had been made
had

after tendering

been computed,

his guilty

The district court denied

hearing,

the

court invoked

the base offense

a dangerous weapon.2

level (BOL)

After other

and appellant's criminal history score

GSR

of

262-327

months

emerged.

The

prosecution recommended an incarcerative sentence at the nadir of

the range,

and the district

not to exact a last pound

dismiss the

court obliged.

of flesh, the government then moved to

unresolved firearms

government's motion.

Apparently content

count.

The court granted

the

This appeal followed.

____________________
1The statute provides in pertinent part:

Whoever, during and in relation to any crime of

violence or drug trafficking crime (including a crime
of violence or drug trafficking crime which provides
for an enhanced punishment if committed by the use of a
deadly or dangerous weapon or device) for which he may
be prosecuted in a court of the United States, uses or
carries a firearm, shall, in addition to the punishment
provided
for such
crime of
violence, or
drug
trafficking crime, be sentenced to imprisonment for
five years. . . .
18 U.S.C.

924(c)(1)(1988).

2The applicable guideline, U.S.S.G. 2D1.1(b)(1)(Nov. 1992),

directs the sentencing court, if it finds that during the course
of the crime the defendant possessed
"a dangerous weapon
(including a firearm)," to add two levels.
3

II.
II.
___
The Motion to Withdraw
The Motion to Withdraw
______________________

Appellant challenges the district court's denial of his

plea-withdrawal motion,
just

reason"

district

for

asserting that

retracting

his

he advanced a

guilty

plea, and

court should have given him safe passage.

"fair and
that

the

His asserted

reason masquerades as a claim that, when he tendered his plea, he

did

not

fully

rhetorical

understand

flourishes,

appears to be

its

however,

that he did not

consequences.
appellant's

Stripped
core

of

complaint

realize that his GSR would

be so

formidable.
Even prior
does not have
See
___

to the imposition of

an unqualified

sentence, a defendant

right to withdraw

a guilty

plea.

United States v. Parrilla-Tirado, 22 F.3d 368, 371 (1st Cir.

_____________
_______________

1994);

United States
_____________

v. Buckley,
_______

847 F.2d

1988), cert. denied, 488 U.S. 1015 (1989).

_____ ______

991, 998

(1st Cir.

Rather, a presentence

motion to retract a plea can be granted "only upon an affirmative

showing of a 'fair
at

371

and just reason.'"

(quoting Fed.R.Crim.P.

rests with the

defendant.

Parrilla-Tirado,
_______________

32(d)).3

See
___

The

burden

22 F.3d

of proof

United States v. De Alba Pagan,

_____________
______________

___ F.3d ___, ___ (1st Cir. 1994) [No. 93-2018, slip op. at 2-3];
Parrilla-Tirado,
_______________
tri-cornered

22 F.3d at 371.

relationship

among

In deference
trial

judge,

to the intimate

prosecutor, and

____________________

3Fed.R.Crim.P. 32(d) states in pertinent part: "If a motion

for withdrawal of a plea of guilty . . . is made before sentence
is imposed, the court may permit withdrawal of the plea upon a
showing by the defendant of any fair and just reason."
4

criminal defendant,

we review

district court's

denial of

request to withdraw a guilty plea solely for abuse of discretion.

See
___

United States v.
_____________

Doyle, 981 F.2d 591,

_____

594 (1st Cir. 1992);

United States v. Pellerito, 878 F.2d 1535, 1538 (1st Cir. 1989).
_____________
_________
Federal

courts use a

ascertaining whether a proffered

criteria

of Rule

32(d).

This

multi-factor test

as an

aid in

reason for withdrawal meets the

test is familiar,

see, e.g., De

___
Alba Pagan, ___ F.3d
__________
22 F.3d
1537,

at ___ [slip op. at

at 371; Doyle, 981

_____
and

does

not

bear

__

2-3]; Parrilla-Tirado,
_______________

F.2d at 594; Pellerito,

_________
reiteration.

____

878 F.2d at

Instead,

we proceed

directly to a factor-by-factor examination of appellant's plaint.

1.
1.
to

Plausibility.
Plausibility.
____________

plead guilty

was based

Appellant claims

upon the

that his decision

government's

recommend a sentence at the low end of the GSR

agreement to

a recommendation

that, to appellant's way of thinking, meant 210 months.

assumption stemmed from a miscalculation on
miscalculation
enhancement.

guilty

appellant's part

fueled by his hope that there would be no weapons

It is a

fact of law and life, too basic to warrant

citation of authority, that

a

But that

plea knowingly,

a criminal defendant cannot jettison

intelligently,

merely because the sentencing judge calls

the defendant's taste.

and voluntarily
a tune that is not

made

to

It is a corollary of this principle that,

as we recently stated in a case comparable to this one, "the fact

that a defendant
range

misapprehends the

likely guideline

sentencing

does not constitute a fair and just reason for withdrawing

a guilty plea."

De Alba Pagan, ___

_____________
5

F.3d at ___ [slip

op at 4];

accord United States

______ _____________

v. Williams, 919
________

Cir. 1990), cert. denied,

_____ ______

F.2d 1451, 1456-57

(10th

499 U.S. 968 (1991); United States v.

______________

Garcia, 909 F.2d

______

1346, 1348

(9th Cir. 1990);

United States
_____________

v.

Bradley, 905 F.2d

_______

359, 360

(11th Cir. 1990);

United States
_____________

v.

251, 253

(6th Cir. 1990);

United States
_____________

v.

867, 868-69

(5th Cir. 1990);

United States
_____________

v.

a defendant

to

Stephens, 906 F.2d

________
Jones, 905 F.2d
_____

Sweeney, 878 F.2d 68, 69-71 (2d Cir. 1989).

_______
This is
suggest

that we

a particularly
should bend the

change-of-plea hearing
the

makes it

time that, regardless of

unresolved
enhanced

weapons charge,
BOL at

sentencing.

weak case for

rule.

The transcript

pellucid that Gonzalez

the eventual outcome

he

still faced
During the

knew at

of the then-

the prospect
hearing,

of the

of an

his counsel

stated in open court and in appellant's presence:

I have also informed Mr. Gonzalez that it is
the position of the U.S. attorney that, in
the event that he would be acquitted of the
gun charge, that is count 23, that they could
ask or it could be possible that he would be
found with a two point enhancement at the
moment of the sentencing hearing.
Counsel added

that he

"could possibly increase

explained

to Gonzalez

his offense level.

that this
. . ."

tactic

Hence, the

ambush of which

appellant now

but,

frontal

rather, a

marshalled in

plain

complains was no

assault, with

view from

the government's

the very

Appellant's articulated reason for

ambush at

onset of

all,

troops

hostilities.

seeking to scuttle his guilty

plea is, therefore, not plausible.

2.
2.

Timing.
Timing.
______

The timing

of

a motion

to withdraw

guilty

plea often serves as a gauge for measuring the legitimacy

of a proffered

reason.

Belated requests, even

sentencing,

are

generally

Consequently,

the "longer

regarded

if made

as

defendant waits

before

afterthoughts.
before moving

to

withdraw his plea, the more potency his motion must have in order
to gain

favorable consideration."

Parrilla-Tirado, 22
_______________

F.3d at

373; accord Doyle, 981 F.2d at 595; Pellerito, 878 F.2d at 1541.
______ _____
_________
Here, appellant waited approximately four
pleading

guilty

and

two

months

presentence investigation report

retract

his plea.4

after

the

(PSI Report)

months after

release

of

before moving

his

to

Given the totality of the circumstances that

pertain here,
doubt

appellant's lassitude serves

to cast considerable

upon the legitimacy of his professed reason for seeking to

change course.
3.
3.
proposed

plea

assertion

of

Assertion of Innocence.
Assertion of Innocence.
______________________
withdrawal
innocence

is
may

withdrawal, and conversely,

"In determining whether a

fair

and

just,

weight

the

scales

the absence of a

weights the opposite pan of the scale."

defendant's
in

favor

claim of innocence

Parrilla-Tirado, 22 F.3d
________________________

at 373; accord United States v. Kobrosky, 711 F.2d 449,

______ ______ _____________
________
Cir.

1983).

plea-withdrawal

Appellant did
motion.

To

of

not proclaim
the contrary,

his innocence
at the

455 (1st

in his

disposition

____________________

4The chronology is as follows.

Appellant pled guilty on
March
26, 1993.
New counsel entered the case ten days
thereafter. The probation department issued the PSI Report on
June 1, 1993.
On August 9, 1993, appellant filed his motion to
withdraw his guilty plea. The district court sentenced appellant
on August 19, 1993.
7

hearing he stated;
for it."

"I know I committed a crime and I have to pay

Appellant's explicit admission of

his guilt militates

strongly against disturbing the ruling below.

4.
4.

Voluntariness.
Voluntariness.
_____________

In reviewing the merits of a plea-

withdrawal motion, an inquiring

light

of the

defendant's proffered

disclosed facts, the

and intelligent.
87

(1st Cir.

sufficiency

court must determine whether, in

reason and any

guilty plea can

other newly

still be deemed

voluntary

See United States v. Austin, 948 F.2d 783, 786___ _____________

______

1991).

Appellant

makes

no

challenge

to

the

of the Rule 11 proceeding in this case, and, indeed,

the colloquy is a model of thoroughness.

We need go no further.
error tainted the
retract

his guilty

It is apparent that no hint of

district court's refusal to allow appellant to

plea.

Consequently,

Gonzalez's conviction

must stand.
III.
III.
____
The Sentence
The Sentence
____________

Appellant also challenges the district court's reliance

on

U.S.S.G.

sentence.

2D1.1(b)(1)
He maintains

in
that

the
his

course

of

formulating

alleged possession

firearm, and, hence, the applicability of the guideline,

proven by a fair preponderance of the
event,
beyond a
the

the

guideline's

of

his

the

was not

evidence; and that, in any

applicability had

to

be

demonstrated

reasonable doubt inasmuch as the increase imposed under

guideline

is

in

reality

an additional

sentence,

not

sentencing enhancement.

We do not accept either contention.

8

1.
1.
sentencing

Sufficiency of the Proof.

Sufficiency of the Proof.
__________________________
sortie

is effortlessly

Appellant's

repulsed.

sufficiency of the factual foundation on which a

initial

In gauging

the

sentence rests,

we must "accept the findings of fact of the district court unless

they are clearly erroneous," while at the same time "giv[ing] due
deference to
to

the district court's application

the facts."

18 U.S.C.

of the guidelines

3742(e); see United States v. Ruiz,

___ _____________
____

905 F.2d 499, 507 (1st Cir. 1990); United States v. Mocciola, 891
_____________
________
F.2d 13, 16 (1st Cir. 1989).
In the
survives
easily

case at hand, the

clear-error review.
because

instruction that

of

the

district court's factfinding

This

conclusion is

Sentencing

section 2D1.1(b)(1)

Commission's
"should be applied

weapon was

present,

weapon was

connected with the offense."

comment.

unless it

is clearly

A sentencing court must,

reached more

specific

if the

improbable that
U.S.S.G.

the

2D1.1(b)(1),

of course, honor this type of

instruction.
(1st Cir.

See, e.g., United States v. Fiore, 983

___ ____ ______________
_____

1992)

interpretation

(explaining that
of a

the

Sentencing

guideline should be

F.2d 1, 2

Commission's

followed unless

it is

"arbitrary, unreasonable, inconsistent with the guideline's text,

or contrary to law"), cert. denied, 113 S. Ct. 1830 (1993).
_____ ______
Here,

the record

supports

served as a bodyguard while one of

finding that

appellant

his coconspirators negotiated

the terms of a proposed narcotics transaction with a confidential

informant.

It likewise supports a finding that appellant carried

a pistol during
must

the encounter.5

Under these circumstances,

we

uphold the district court's conclusion that, on the date of

appellant's

arrest, he possessed a

firearm in the

course of an

aborted drug transaction.

Appellant

tries

to

stave

force of these findings in two ways.

warrant an adjustment under
must

U.S.S.G.

establish the same panoply

off

the near-irresistible

First, he suggests that, to

2D1.1(b)(1), the

of elements that

evidence

are needed to

prove the statutory "carrying and use" of a weapon in furtherance

of

a drug crime, see 18 U.S.C.

___

fanciful, for

the guideline

924(c)(1).6

The suggestion is

can be triggered

with considerably

greater ease.
The point is readily
one

thing, while

susceptible to illustration.

mere possession

of a

firearm during

For

a drug-

trafficking episode does not satisfy the elements of the statute,

see United States
___ _____________

v. Castro-Lara,
___________

970 F.2d 976,

983 (1st

Cir.

1992), cert. denied, 113 S. Ct. 2935 (1993), the reverse is often
_____ ______

true under the guideline, see, e.g., Ruiz, 905 F.2d at 507 ("Mere
___ ____ ____
____________________

5The government suggests, with some foundation in the

record, that when the drug deal began to sour, appellant
attempted to use the pistol against a federal agent. Because we
do not need to reach the question of whether the proof here is
sufficient to support a conviction under 18 U.S.C.
924(c)(1),
we abjure comment on the reliability of the evidence underpinning
this more menacing scenario.

6The reader will recall that the grand jury originally

charged appellant under that statute; that the charge was not
compromised as part of the plea agreement; that the parties
anticipated that the section 924(c)(1) count would be tried
subsequently; and that, eventually, the government dropped the
charge.
10

possession of a firearm can trigger the two level increase; there

is no requirement that

the gun actually be used

in perpetrating

the drug crime, or that such use be intended,"); United States v.

_____________

Green, 889 F.2d 187, 189 (8th Cir. 1989) (similar); United States
_____
_____________
v. Paulino,
_______

887 F.2d 358,

another thing,
makes a huge

360 (1st

the "clearly
difference.

Cir. 1989) (similar).

improbable"
Under the

burden of persuasion never varies.

language quoted

statute, the

For

above

government's

Under the guideline, however,

once the underlying crime and the presence of a firearm have been
established,
at

the burden then shifts to the defendant to show, or

least produce

some evidence

circumstances that would render

of, "the

existence of

special

it 'clearly improbable' that the

weapon's presence has a connection to the narcotics trafficking."

United States v. Corcimiglia,
_____________
___________
(quoting

Commentary).

967 F.2d 724, 728 (1st

This

distinction

is

of

Cir. 1992)

paramount

importance here, as the record justifies a finding of possession,

and appellant has
of any

neither produced nor pointed to

evidence indicating

the improbability of

the existence

a facilitative

nexus between the gun and the crime.

increase

Appellant's

next effort at

annihilating the two-level

amounts

an

the

government's

to

proof.

attack

on

The fusillade

reliability

misses the

of

target.

the

To be

sure, the court's findings are based primarily on the PSI Report,
which,

in

turn,

relies

heavily

on

grand

jury

testimony,

coconspirators'
castigation

statements, and other

of this

evidence

hearsay.

overlooks the

But appellant's

special nature

of

11

sentencing proceedings.
Federal

Rules

contained

in

reliable

of
a

In

Evidence
presentence

evidence for

the sentencing phase of a

do

not

apply.

case, the

Thus,

report ordinarily

sentencing purposes."

are

"[f]acts

considered

United States v.
______________

Morillo, 8 F.3d 864, 872 (1st Cir. 1993) (citing cases).

_______
token,

grand

purposes.
(1st

jury testimony

may

consulted for

sentencing

See United States v. Zuleta-Alvarez, 922 F.2d

___ ______________
______________

Cir.

1990) ("The

sentencing court

outside evidence, including hearsay

subject

be

By like

to

(1991).

cross-examination."),

free to

rely upon

evidence that has never been

cert.
_____

denied, 500
______

U.S.

927

Particularly where, as here, the defense has adduced no

countervailing evidence,
upon the PSI
Morillo, 8
_______

is

33, 36

the district court is

Report, grand

jury testimony, and

entitled to rely
the like.

See
___

F.3d at 872; United States v. Garcia, 954 F.2d 12, 19

_____________
______

(1st

Cir. 1992); United States v. Iguaran-Palmar, 926 F.2d 7, 10

_____________
______________

(1st Cir. 1991); Ruiz, 905 F.2d at 508.

____
2.
2.
fallback

Use of the Preponderance Standard.

Use of the Preponderance Standard.
___________________________________

position is

that,

even if

the

Appellant's

proof suffices

on

preponderance standard, using that standard transgresses his

process

rights.

He hinges this

increase in his sentence

adjustment
roughly

(agreed by

equivalent

sentence for

the thesis

due

that the

attributable to the section 2D1.1(b)(1)

the parties

to

the

to have

length

of

violating 18 U.S.C.

therefore, demands proof

give

claim on

appellant's counsel

the

been 52

mandatory

924(c)(1) (60

beyond a reasonable
high marks

months) is

minimum

months), and,

doubt.

for ingenuity,

Though

we

his thesis

12

does not earn a passing grade.

thesis

In

the first

in the

lower

defaulted

place,
court.

appellant failed
Accordingly,

and merits rejection on

to unfurl

it is

that bias alone.

the

procedurally

See United
___ ______

States
______

v. Dietz,
_____

repeatedly

950

ruled,

F.2d 50,

in connection

contexts, that

arguments not

court

be

may not

55 (1st
with

Cir.

1991) ("We

sentencing

as in

seasonably addressed to

raised for

the first

time

have

other

the trial

in an

appellate

venue.") (collecting cases).

In the second place, the thesis lacks substance.
well settled that
by

a sentencing proceeding differs

definition, the

defendant's guilt

presumption of innocence
prosecution need not

has been

has dissipated, and,

prove the

sentencing purposes beyond a

Pennsylvania, 477 U.S. 79,
____________

It is

from a trial;

established the

consequently, the

facts upon which

reasonable doubt.

it relies

for

See McMillan
___ ________

v.

91 (1986); United States

_____________

v. Tardiff,
_______

969 F.2d 1283, 1289 (1st Cir. 1992); United States v. Wright, 873
_____________
______
F.2d 437,

441 (1st Cir.

process.
Vinson,
______

1989).

This

rule does not

See McMillan, 477 U.S. at 91; see also United States v.

___ ________
___ ____ _____________
886 F.2d

740,

742 (4th

Cir.

1989) (holding

sentencing proceedings

due process does not

of proof

a preponderance

denied,
______

offend due

greater than
493

U.S.

1062

(1990).

that

in

necessitate a level

of the evidence),

Inspected

in

this

cert.
_____

light,

appellant's constitutional challenge fails.

Nor
government

does it

originally

make

a significant

pressed

charges
13

difference that
under

18

U.S.C.

the

924(c)(1),

quoted supra
_____

defendant
section

is

not charged,

924(c)

enhancement

is

not

considered by

prior

After all,
could

not be

determinative

of

the fact

that a

convicted,

under

whether

at 17 (holding that

acquittal

the sentencing

no reason why

weapons

under the sentencing guidelines.

Jackson, 3 F.3d 506, 509 (1st

_______

Mocciola, 891 F.2d

________

underlying

We see

or

may be appropriate

See United States v.

___ ______________
see also
___ ____

note 1.

on

weapons

court for

the same rule

Cir. 1993);

even the facts

charge

may

enhancement purposes).7

should not apply

where, as

here, the prosecution simply dismisses the weapons count.

think it

is immaterial

that, in

be

the plea

And we

agreement, appellant

reserved the right to trial on the statutory weapons charge.

Appellant makes a last-ditch
process claim.
this

He revives the infamous

effort to salvage his due

"Catch-22" argument that

court rejected in Mocciola, but with a twist.

________

the defendant, who

was charged

violating

section

924(c), argued

permitted

by the

guidelines

with both

drug trafficking

that the

created a

In Mocciola,
________

and

weapons enhancement

"Catch-22" because,

in

respect
an

to the firearms charge, whether he pled guilty or earned

acquittal after trial did

not really matter.

See Mocciola,
___ ________

____________________

7Mocciola is a mainstream holding, not,

as appellant
________
portrays it, a waif in the wilderness. See, e.g. United States
___ ____ _____________
v. Juarez-Ortega, 866 F.2d 747, 749 (5th Cir. 1989) (per curiam)
_____________
("Although the jury may have determined that the government had
not proved all of the elements of the weapons offense beyond a
reasonable doubt, such a determination does not necessarily
preclude consideration of underlying facts of the offense at
sentencing so
long as
those facts meet
the reliability
standard."); United States v. Romano, 825 F.2d 725, 729 (2d Cir.
_____________
______
1987) (similar); United States v. Bernard, 757 F.2d 1439, 1444
_____________
_______
(4th Cir. 1985) (similar).
14

891, F.2d at

17.

"misperceives the
enhancement."

We dismissed this

distinction between a sentence

Id.
___

at 17.

In so holding,

guideline adjustment added only

while

argument, reasoning that it

conviction

under

the

and a sentence

we commented that the

15 months to Mocciola's sentence

statute

would have

yielded

mandatory 60-month consecutive sentence.

Appellant

pounces on

this comment.

He

contrasts it

with

his situation,

onto

his sentence as a

months) is

observing that
result of the

nearly equal

(60 months).

the additional

guideline enhancement (52

to the prescribed

We do not believe

time tacked

statutory punishment

that this circumstance makes

legally relevant difference.

A sentence
is an enhancement
the

incremental

sentence

is

factors.

Conversely, an enhancement

here, two levels, regardless of the BOL

effect of

the

The

is a sentence.

the

product of

increase in

enhancement

the
the

interaction

particular
a myriad

of

whatever the

fundamental character

bears on whether the facts underlying it must be established

by a different quantum of proof.

F.2d

1, 6

(1st Cir.

because of
proof by
proved

Cf. United States v. Rehal, 940

___ _____________
_____

1991) (holding

a defendant's

that enhancing

perjurious testimony does

a sentence

not require

the same standard as a perjury charge, but need only be

by

preponderance

appellant's complaint about

case

of

ensuing sentence,

duration, neither alters the enhancement's

nor

on any

and

might

appropriately

of

the

evidence).

the length of
be

addressed
15

In

short,

the increment in

his

to

the

Congress

or

Sentencing Commission; it cannot

courts.

Affirmed.
Affirmed.
________

rewardingly be addressed to the

16