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USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2018
UNITED STATES OF AMERICA,
Appellee,
v.
HECTOR De ALBA PAGAN,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
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Before
Selya, Boudin and Stahl, Circuit Judges.
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Jorge L. Arroyo, by appointment of the Court, for appellant.
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Jose A. Quiles-Espinosa, Senior Litigation Counsel, with
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whom Guillermo Gil, United States Attorney, and Rosa Emilia
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Rodriguez-Velez, Assistant United States Attorney, were on brief,
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for the United States.
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August 26, 1994
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SELYA, Circuit Judge. On March 22, 1993, defendant-
SELYA, Circuit Judge.
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appellant Hector De Alba Pagan pled guilty to five counts of an
indictment charging him, and twenty-three other persons, with
various drug-trafficking offenses. On August 5, 1993, the
district court, after first denying defendant's pro se motion to
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withdraw his earlier plea,1 sentenced him to a lengthy prison
term. This appeal followed.
Defendant makes several points. Distilled, these
points reduce to three broad issues. We address those issues
seriatim.
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I.
I.
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Plea Withdrawal
Plea Withdrawal
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Defendant contends that the district court erred in
refusing to allow him to withdraw his guilty plea. We review a
district court's decision to grant or deny a request to withdraw
a guilty plea solely for abuse of discretion. See United States
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v. Parrilla-Tirado, 22 F.3d 368, 371 (1st Cir. 1994); United
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States v. Doyle, 981 F.2d 591, 594 (1st Cir. 1992); United States
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v. Pellerito, 878 F.2d 1535, 1538 (1st Cir. 1989). Applying that
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standard, we discern no error.
It is settled that a motion to withdraw a guilty plea,
made before sentencing, can be granted "only upon an affirmative
showing of a `fair and just reason.'" Parrilla-Tirado, 22 F.3d
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1Defendant filed his motion to withdraw pro se, although, at
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the time, he was represented by counsel. In the same motion, he
asked the court to discharge his lawyer and appoint a successor.
The court denied this request as well. On appeal, defendant is
represented by a newly appointed attorney.
2
at 371 (quoting Fed. R. Crim. P. 32(d)). The burden of
persuasion rests with the defendant. See id. In determining
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whether this burden has been carried, an inquiring court must
consider the totality of the circumstances, focusing especially
on four factors, namely, (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 the defendant's plea
realistically may be characterized as legally suspect, say,
because it was involuntary or otherwise in derogation of the
requirements imposed by Fed. R. Crim. P. 11. See id. at 371;
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Doyle, 981 F.2d at 594; Pellerito, 878 F.2d at 1537. If, after
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due consideration, the defendant appears to have the better of
this assessment, the court must then mull an additional factor:
prejudice to the government. See Parrilla-Tirado, 22 F.3d at
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371; United States v. Kobrosky, 711 F.2d 449, 455 (1st Cir.
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1983). Here, we do not reach the question of prejudice, for the
defendant's claim, when measured by virtually every pertinent
test, fails at the earlier stage.
We need not wax longiloquent. Defendant asserts three
reasons for seeking to withdraw his plea, but two of them are
hopelessly infirm and do not warrant discussion. His quest rises
or falls, therefore, on his claim that, when he pleaded guilty,
he "did not understand that, as a consequence of his plea, he
would be sentenced [based partly] on relevant conduct that went
beyond that which he admitted to in his statements to the court
3
[at the change-of-plea hearing]." Appellant's Brief at 16-17.
On this chiaroscuro record, we cannot find that the
lower court erred in refusing to credit this professed reason.
After all, the court made it very clear to defendant that he
would be sentenced in accordance with the provisions of the
sentencing guidelines, informed him of the maximum possible
punishment, asked him about promises or assurances beyond those
limned in the plea agreement (defendant said there were none),
and made certain that defendant was told quite pointedly that the
matter of relevant conduct would be determined at sentencing.
To be sure, defendant claims to have had a subjective
understanding to the contrary.2 But where, as here, a court
expressly retains the power to determine relevant facts bearing
on sentencing under the guidelines, "a defendant cannot claim . .
. that the plea is rendered involuntary when the court exercises
this power." United States v. Williams, 919 F.2d 1451, 1456
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(10th Cir. 1990), cert. denied, 499 U.S. 968 (1991); accord
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United States v. Stephens, 906 F.2d 251, 254 (6th Cir. 1990). In
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short, a defendant's lament that he misjudged the consequences of
his guilty plea, without more, is not a fair and just reason for
setting the plea aside. By the same token, the fact that a
defendant misapprehends the likely guideline sentencing range
does not constitute a fair and just reason for withdrawing a
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2Defendant asserts that a principal reason for this
subjective belief lay in his lawyer's statements to him, abetted
by his lawyer's failure to tell him of comments made by the judge
at sidebar. These circumstances are more directly pertinent to
the claim of ineffective assistance, see infra Part II.
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4
guilty plea. See Williams, 919 F.2d at 1456; United States v.
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Bradley, 905 F.2d 359, 360 (11th Cir. 1990); Stephens, 906 F.2d
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at 253; United States v. Jones, 905 F.2d 867, 868 (5th Cir.
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1990); United States v. Sweeney, 878 F.2d 68, 69-71 (2nd Cir.
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1989).3
Although the absence of a plausible reason itself often
constitutes an insurmountable obstacle to a defendant's plea-
withdrawal effort, we note that, here, most of the remaining
factors involved in the Parrilla-Tirado test also counsel in
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favor of upholding the district court's ruling. Beyond noting
two vital pieces of information that defendant has yet to
assert his innocence, and that we have been unable to find any
substantial defect in the Rule 11 proceedings we think that it
would serve no useful purpose to cite book and verse. It
suffices to say that the district court did not abuse its
discretion in denying defendant's plea-withdrawal motion.
II.
II.
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Ineffective Assistance
Ineffective Assistance
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The Sixth Amendment requires that persons accused of
crimes shall receive the benefit of counsel for their defense.
See U.S. Const., Amend. VI. The defendant maintains that he was
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denied this boon because his trial counsel acted both
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3Here, no one supplied the defendant with an estimate of the
guideline sentencing range during the change-of-plea hearing. We
note in passing, however, that courts have held that even the
furnishing of an incorrect estimate to defendant by his own
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counsel would not afford a basis for permitting him to withdraw
his earlier plea. See, e.g., Williams, 919 F.2d at 1456;
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Stephens, 906 F.2d at 253.
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5
irresponsibly and below an acceptable standard of proficiency.
We do not think this plaint is ripe for appellate review.
"We have held with a regularity bordering on the
monotonous that fact-specific claims of ineffective assistance
cannot make their debut on direct review of criminal convictions,
but, rather, must originally be presented to, and acted upon by,
the trial court." United States v. Mala, 7 F.3d 1058, 1063 (1st
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Cir. 1993) (collecting cases), cert. denied, 114 S. Ct. 1839
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(1994). Here, defendant's complaint anent trial counsel's
performance is utterly factbound, and cannot intelligently be
evaluated on the sparse record that is now before us.
Nonetheless, the rule reiterated in Mala should be
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construed in a practical, commonsense fashion. The chief reason
that we do not undertake first-instance review of prototypical
ineffective assistance claims is prudential in nature. As we
said in Mala:
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Since claims of ineffective assistance
involve a binary analysis the defendant
must show, first, that counsel's performance
was constitutionally deficient and, second,
that the deficient performance prejudiced the
defense, see Strickland v. Washington, 466
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U.S. 668, 687 (1984) such claims typically
require the resolution of factual issues that
cannot efficaciously be addressed in the
first instance by an appellate tribunal. In
addition, the trial judge, by reason of his
familiarity with the case, is usually in the
best position to assess both the quality of
the legal representation afforded to the
defendant in the district court and the
impact of any shortfall in that
representation. Under ideal circumstances,
the court of appeals should have the benefit
of this evaluation; elsewise, the court, in
effect, may be playing blindman's buff.
6
Id. (some internal citations omitted).
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Be that as it may, the case at bar possesses a
procedural wrinkle: it must, in all events, be remanded to the
district court for further proceedings, see infra Part III. That
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circumstance, coupled with the fact that the claim of ineffective
assistance is at least colorable, impels us to direct the
district court, on remand, to hold an evidentiary hearing in
advance of resentencing to determine whether defendant's
conviction ought to be set aside on Sixth Amendment grounds.
Cf., e.g., United States v. Rodriguez Rodriguez, 929 F.2d 747,
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753 (1st Cir. 1991) (per curiam) (directing district court on
remand to conduct an inquiry into defendant's allegations of
misconduct by counsel); Mack v. Smith, 659 F.2d 23, 26 (5th Cir.
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1981) (per curiam) (remanding for evidentiary hearing to
determine if failure to file a timely appeal resulted from
ineffectiveness of counsel). Of course, we take no view of the
merits of defendant's Sixth Amendment claim.
III.
III.
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Sentencing
Sentencing
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The defendant asserts a salmagundi of grounds in
support of his contention that the district court erred in the
imposition of sentence. We agree that the sentencing proceedings
were irremediably flawed and must be conducted afresh.
The right of allocution affords a criminal defendant
the opportunity to make a final plea to the judge on his own
behalf prior to sentencing. See United States v. Behrens, 375
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7
U.S. 162, 165 (1963). Ancient in law, allocution is both a rite
and a right. It is designed to temper punishment with mercy in
appropriate cases, and to ensure that sentencing reflects
individualized circumstances. See United States v. Barnes, 948
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F.2d 325, 328 (7th Cir. 1991). Furthermore, allocution "has
value in terms of maximizing the perceived equity of the
process." Id. (citation and internal quotation marks omitted).
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While it can be argued that the right of allocution has
lost some of its stature since the advent of the sentencing
guidelines the guidelines, we might add, have been blamed for
much worse allocution remains deeply embedded in our criminal
jurisprudence. Indeed, the right is incorporated in the Criminal
Rules, which provide in pertinent part that, prior to imposing a
sentence, the judge "shall address the defendant personally and
determine if the defendant wishes to make a statement and to
present any information in mitigation of the sentence." Fed. R.
Crim. P. 32(a)(1)(C). If the defendant responds affirmatively to
this invitation, he must then be permitted to speak. See, e.g.,
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Barnes, 948 F.2d at 331.
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In this case, the court below did not specifically
address the defendant and make the inquiry that the rule
requires. Despite this apparent failure to heed the rule's
command, the government argues that the omission, in itself, is
not dispositive. Rather, the government strives to persuade us
that the totality of the circumstances surrounding the sentencing
hearing, including some specific interaction between the
8
defendant and the judge, constituted substantial compliance with
the rule. We are not convinced.
As we have previously observed, allocution continues to
play a salient role in criminal cases. Thus, while we do not
attach talismanic significance to any particular string of words,
a defendant must at least be accorded the functional equivalent
of the right. And, moreover, functional equivalency should not
lightly be assumed. Though there may be cases in which a
defendant, despite the absence of the focused inquiry that the
language of the rule requires, can be said to have received its
functional equivalent, such cases will be few and far between.
Doubts should be resolved in the defendant's favor.
To achieve functional equivalency (or, put another way,
substantial compliance with the imperative of Rule 32 (a)(1)(C)),
it is not enough that the sentencing court addresses a defendant
on a particular issue, see, e.g., United States v. Walker, 896
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F.2d 295, 300-01 (8th Cir. 1990), affords counsel the opportunity
to speak, see, e.g., United States v. Posner, 868 F.2d 720, 724
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(5th Cir. 1989), or hears the defendant's specific objections to
the presentence report, see, e.g., United States v. Phillips, 936
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F.2d 1252, 1255-56 (11th Cir. 1991). Rather, the court, the
prosecutor, and the defendant must at the very least interact in
a manner that shows clearly and convincingly that the defendant
knew he had a right to speak on any subject of his choosing prior
to the imposition of sentence. See Green v. United States, 365
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U.S. 301, 304-05 (1961).
9
Viewed against this backdrop, we cannot find functional
equivalency or substantial compliance here. Although the
defendant did engage in discussion of specific points at the
disposition hearing, the court did not, either explicitly or by
fair implication, invite him to speak on a broader, more wide-
ranging level. Nor does the record furnish any other basis for a
finding that defendant knew of his right to allocute. In this
case, then, the court's failure to comply with Rule 32(a)(1)(C)
constituted reversible error.4
We say "reversible" because, in this type of situation,
we cannot dismiss the error as harmless. As early as 1689, the
common law acknowledged that a court's failure to invite a
defendant to speak before sentencing required reversal. See
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Barnes, 948 F.2d at 328 (citing Anonymous, 3 Mod. 265, 266, 87
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Eng.Rep. 175 (K.B. 1689)). This axiom has survived the passage
of time. It is settled that a failure to comply with the mandate
of Rule 32(a)(1)(C) ordinarily requires vacation of the sentence
imposed without a concomitant inquiry into prejudice. See United
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States v. Maldonado, 996 F.2d 598, 599 (2d Cir. 1993); Barnes,
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948 F.2d at 332; Phillips, 936 F.2d at 1256; Walker, 896 F.2d at
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301; Posner, 868 F.2d at 724; United States v. Buckley, 847 F.2d
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991, 1002 (1st Cir. 1988), cert. denied, 488 U.S. 1015 (1989);
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United States v. Navarro-Flores, 628 F.2d 1178, 1184 (9th Cir.
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4Under Rule 32(a)(1)(C), it is the court's obligation to
invite the defendant's remarks. Thus, a defendant ordinarily
will not be held to have waived the right of allocution merely
because he did not seek to address the court. See Barnes, 948
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F.2d at 330-31; see also Walker, 896 F.2d at 300.
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10
1984); cf. United States v. Miller, 849 F.2d 896, 897-98 (4th
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Cir. 1988) (remanding for failure to meet strictures of Fed. R.
Crim. P. 32(a)(1)(A) and (C)). This is so precisely because the
impact of the omission on a discretionary decision is usually
enormously difficult to ascertain.5
In line with this virtually unbroken skein of
authorities, we hold, that if the trial court fails to afford a
defendant either the right of allocution conferred by Rule
32(a)(1)(C) or its functional equivalent, vacation of the ensuing
sentence must follow automatically. So it is here.6
We affirm the district court's denial of defendant's
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plea-withdrawal motion, but vacate defendant's sentence and
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remand for further proceedings as described herein. So ordered.
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5This is not necessarily so, of course, when the sentence is
the minimum possible. Thus, the Ninth Circuit has undertaken
harmless-error analysis in certain cases in which a defendant has
been denied his right to allocution, limited, however, to
instances in which a sentence is "already as short as it could
possibly be under the Guidelines." United States v. Carper, 24
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F.3d 1157, 1162 (9th Cir. 1994); see also United States v.
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Ortega-Lopez, 988 F.2d 70, 72-73 (9th Cir. 1993). The case at
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hand is not such a case.
6Because further proceedings are required, we do not reach
the remaining sentence-related issues raised on appeal. We
assume that, at the appropriate juncture, the district court will
traverse that ground and make new findings on an augmented
record.
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Document Info
Docket Number： 93-2018
Filed Date： 8/26/1994
Precedential Status： Precedential
Modified Date： 9/21/2015