United States v. de Alba Pagan, 33 F.3d 125, 1st Cir. (1994)

33 F.
3d 125
UNITED STATES of America, Appellee,

v.
Hector De ALBA PAGAN, Defendant, Appellant.
No. 93-2018.
United States Court of Appeals,

First Circuit.
Heard Aug. 2, 1994.
Decided Aug. 26, 1994.
Jorge L. Arroyo, San Juan, PR, by appointment of the Court, for

appellant.
Jose A. Quiles-Espinosa, Sr. Litigation Counsel, Hato Rey, PR, with
whom Guillermo Gil, U.S. Atty., Washington, DC, and Rosa Emilia
Rodriguez-Velez, Asst. U.S. Atty., Hato Rey, PR, were on brief, for U.S.
Before SELYA, BOUDIN and STAHL, Circuit Judges.
SELYA, Circuit Judge.
On March 22, 1993, defendant-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 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.
I.
Plea Withdrawal
3
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 v. Parrilla-Tirado, 22 F.3d 368, 371 (1st Cir.1994); United States v.
Doyle, 981 F.2d 591, 594 (1st Cir.1992); United States v. Pellerito, 878 F.2d
1535, 1538 (1st Cir.1989). Applying that standard, we discern no error.
4
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 at 371 (quoting Fed.R.Crim.P. 32(d)). The burden of
persuasion rests with the defendant. See id. In determining 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;
Doyle, 981 F.2d at 594; Pellerito, 878 F.2d at 1537. If, after 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 371; United States v. Kobrosky, 711 F.2d 449, 455 (1st Cir.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 [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 (10th Cir.1990), cert.
denied, 499 U.S. 968, 111 S.Ct. 1604, 113 L.Ed.2d 667 (1991); accord United
States v. Stephens, 906 F.2d 251, 254 (6th Cir.1990). In 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 guilty plea. See Williams,
919 F.2d at 1456; United States v. Bradley, 905 F.2d 359, 360 (11th Cir.1990);
Stephens, 906 F.2d at 253; United States v. Jones, 905 F.2d 867, 868 (5th
Cir.1990); United States v. Sweeney, 878 F.2d 68, 69-71 (2nd Cir.1989).3
8
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 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.
Ineffective Assistance
9
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 denied this boon because his trial counsel acted both
irresponsibly and below an acceptable standard of proficiency. We do not think
this plaint is ripe for appellate review.
10
"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
Cir.1993) (collecting cases), cert. denied, --- U.S. ----, 114 S.Ct. 1839, 128
L.Ed.2d 466 (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.
11
Nonetheless, the rule reiterated in Mala should be 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:
12 claims of ineffective assistance involve a binary analysis--the defendant must

Since
show, first, that counsel's performance was constitutionally deficient and, second,
that the deficient performance prejudiced the defense, see Strickland v. Washington,
466 U.S. 668, 687 [104 S.Ct. 2052, 2064, 80 L.Ed.2d 674] (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.
13
Id. (some internal citations omitted).
14
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 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, 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.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.
Sentencing
15
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.
16
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 U.S. 162, 165, 84 S.Ct. 295, 296-97, 11 L.Ed.2d 224 (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 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).
17
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--allocuation 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., Barnes, 948
F.2d at 331.
18
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 defendant and the judge, constituted substantial
compliance with the rule. We are not convinced.
19
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.
20
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 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 (5th Cir.1989), or
hears the defendant's specific objections to the presentence report, see, e.g.,
United States v. Phillips, 936 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 U.S. 301, 304-05, 81 S.Ct. 653, 655-56, 5
L.Ed.2d 670 (1961).
21
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
22
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 Barnes, 948 F.2d at 328 (citing Anonymous, 3 Mod. 265, 266, 87 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 States v. Maldonado, 996 F.2d 598, 599 (2d Cir.1993); Barnes, 948
F.2d at 332; Phillips, 936 F.2d at 1256; Walker, 896 F.2d at 301; Posner, 868
F.2d at 724; United States v. Buckley, 847 F.2d 991, 1002 (1st Cir.1988), cert.
denied, 488 U.S. 1015, 109 S.Ct. 808, 102 L.Ed.2d 798 (1989); United States v.
Navarro-Flores, 628 F.2d 1178, 1184 (9th Cir.1980); cf. United States v.
Miller, 849 F.2d 896, 897-98 (4th 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
23
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
24
We affirm the district court's denial of defendant's plea-withdrawal motion, but

vacate defendant's sentence and remand for further proceedings as described
herein. So ordered.
Defendant filed his motion to withdraw pro se, although, at 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
Defendant 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
Here, 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 counsel would not afford a basis for permitting him to
withdraw his earlier plea. See, e.g., Williams, 919 F.2d at 1456; Stephens, 906
F.2d at 253
Under 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 F.2d at 330-31; see also Walker, 896 F.2d at 300
This 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 F.3d 1157,
1162 (9th Cir.1994); see also United States v. Ortega-Lopez, 988 F.2d 70, 7273 (9th Cir.1993). The case at hand is not such a case
Because 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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33 F.

UNITED STATES of America, Appellee,

United States Court of Appeals,

Jorge L. Arroyo, San Juan, PR, by appointment of the Court, for

On March 22, 1993, defendant-appellant Hector De Alba Pagan pled guilty to

To be sure, defendant claims to have had a subjective understanding to the

Although the absence of a plausible reason itself often constitutes an

Nonetheless, the rule reiterated in Mala should be construed in a practical,

12 claims of ineffective assistance involve a binary analysis--the defendant must

Id. (some internal citations omitted).

The defendant asserts a salmagundi of grounds in support of his contention that

The right of allocution affords a criminal defendant the opportunity to make a

As we have previously observed, allocution continues to play a salient role in

To achieve functional equivalency (or, put another way, substantial compliance

Viewed against this backdrop, we cannot find functional equivalency or

We say "reversible" because, in this type of situation, we cannot dismiss the

We affirm the district court's denial of defendant's plea-withdrawal motion, but

Here, no one supplied the defendant with an estimate of the guideline

Under Rule 32(a)(1)(C), it is the court's obligation to invite the defendant's

Because further proceedings are required, we do not reach the remaining

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