USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
_________________________
No. 93-1228
UNITED STATES OF AMERICA,
Appellee,
v.
LUIS E. PARRILLA-TIRADO,
Defendant, Appellant.
__________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
__________________________
__________________________
Before
Selya, Circuit Judge,
_____________
Bownes, Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
_____________
__________________________
Lydia Lizarribar-Masini for appellant.
_______________________

Ernesto Hernandez-Milan, Assistant United States Attorney,

_______________________
with whom Guillermo Gil, United States Attorney, and Jose A.
_____________
_______
Quiles-Espinosa, Senior Litigation Counsel, were on brief, for
_______________ __________________________
appellee.
__________________________
April 28, 1994
__________________________

SELYA,
SELYA,
plea,

Circuit Judge.
Circuit Judge.
_____________

defendant-appellant

moved to

Luis

withdraw it pursuant

Having

E.

rethought his

Parrilla-Tirado

to Fed. R.

guilty

(Parrilla)

Crim. P. 32(d).

The

district court denied the motion and thereafter imposed sentence.

Parrilla appeals.
I.
I.

We affirm.

PROCEEDINGS BELOW
PROCEEDINGS BELOW
On April 24, 1991, appellant and

Concepcion-Roberto
speed chase.

The

a companion, Angel M.

(Concepcion), were apprehended

after a high-

authorities discovered a firearm on

the front

passenger seat

of their

car.1

On

September 18, 1991,

jury returned a two-count indictment.

with

violating 18

U.S.C.

a grand

Count 1 charged appellant

922(g)(1)

(1988),

a statute

that

renders it unlawful for a convicted felon, among other things, to

"transport

in interstate or

affecting

commerce, any

foreign commerce, or

firearm," and

also charged

with assisting the crime's commission in

and abetting statute, 18 U.S.C.
the

defendants'

roles,

transported and/or possessed the

Concepcion

violation of the aiding

2(a) (1988).

charging

possess in or

that

Count 2 reversed

Concepcion

knowingly

firearm in violation of section

922(g)(1), and that appellant aided and abetted him.

Appellant was
February

of

indictment,
inexplicably

1992.
the

arraigned before
Notwithstanding

Assistant

told

the

United

magistrate

a magistrate judge
the

structure

States

Attorney

that

appellant

of

in

the

(AUSA)

was

being

____________________

1The record reflects that Concepcion had been driving the

vehicle and that appellant had occupied the front passenger seat.
2

prosecuted exclusively on count

1.

Consequently, the magistrate

arraigned appellant only on that count.

He pled not guilty.

Four

months

later,

negotiated a non-binding plea

appellant,

on count 1 and the

the charge
district

counsel,

agreement with the government, see

___

Fed. R. Crim. P. 11(e)(1)(A), under

guilt

through

which he agreed to admit his

government agreed to seek dismissal of

leveled against him in

count 2.

In

due course, the

court allowed appellant's change of plea.

In September

1992, the probation office compiled and delivered the presentence

investigation
been

afforded

appellant
the

report (PSI
an

Report).

opportunity

to scrutinize

moved to withdraw his plea.

motion, primarily

reasons lacked

on the

"force and

In December,
the

after having
PSI

Report,

The district court denied

ground that

plausibility."

appellant's asserted
Soon

thereafter, the

court sentenced appellant on count 1 and dismissed count 2.

Appellant
within

the

plea

now

asserts that

and,

therefore, that he should have been allowed to withdraw it.

This

arraignment
the

two

to

support

on two theses:

the

consideration existed
plea,

assertion rests

bargain

no

guilty

(1) that the AUSA

indicated at

that count 2 did not involve appellant; and (2) that

counts

were,

consequently, pleading

in

all

events,

guilty to one count

multiplicitous,

and,

effectively disposed

of the other.
II.
II.

ANALYSIS
ANALYSIS

We first set in place the framework under which motions

to

withdraw pleas

must

be

analyzed,
3

and

then

turn

to

the

specifics of appellant's asseverational array.

A.
A.
Trial judges

The Framework.
The Framework.
_____________

are the

judiciary's infantry:

they man

the front lines

and, therefore, possess special insight into the

dynamics of the

cases over which they preside.

In deference to

that insight, we review the district court's decision to grant or

deny a

request to

discretion.
Cir.

See
___

withdraw a

guilty plea solely

United States v. Doyle, 981 F.2d

_____________
_____

for abuse

of

591, 594 (1st

1992); United States v. Pellerito, 878 F.2d 1535, 1538 (1st

_____________
_________

Cir. 1989).
Although
sentencing

a motion

to

withdraw a

is determined under a less

guilty plea

before

stringent standard than a

motion made after sentencing, see Fed. R. Crim. P. 32(d) advisory

___

committee's note, a defendant does not have an automatic right to

withdraw his plea even
United States v.
______________
cert.
_____

at that comparatively early stage.

Buckley, 847
_______

denied, 488 U.S.

______

F.2d 991,

998 (1st

See
___

Cir. 1988),

1015 (1989); United States v. Kobrosky,

______________
________

711 F.2d 449, 454 (1st

granted before
"fair and

just reason."

defendant.

Rather, such a motion can be

sentencing only upon an affirmative

persuasion as to

(2d

Cir. 1983).

Fed. R. Crim. P.

the existence of such

See United States

___ _____________

Cir. 1992);

see
___

also
____

32(d).

R.

The devoir of

a reason rests

v. Gonzalez, 970
________

Fed.

showing of a

Crim.

P.

with the

F.2d 1095, 1100

32(d)

advisory

committee's note.
To gauge
meets the Rule 32(d)

whether

the asserted

ground for

standard, a court must look

withdrawal

at the overall

situation, most

prominently (1) the plausibility

prompting the requested

defendant's
assertion

motion;

change of

(3) the

plea; (2) the

existence

or

of the reasons
timing of

nonexistence of

the

an

of innocence; and (4) whether, when viewed in light of

emergent circumstances, the defendant's plea appropriately may be

characterized as involuntary,
imposed
See
___

by Fed. R. Crim.

Doyle, 981 F.2d

_____

in derogation of

P. 11,2 or

the requirements

otherwise legally suspect.

at 594; Pellerito,
_________

878 F.2d at

1537.

And

there is

a final

barrier that

defendant appears at first

four-part
proposed
prejudice

test, the
plea

must be surmounted:

blush to meet the strictures

nisi prius
____ _____

withdrawal

even

court still

in

relation

to

of this

must evaluate
any

if a

the

demonstrable

that will accrue to the government if the defendant is

permitted to

alter

his stance.

See
___

Doyle, 981
_____

F.2d at

594;

Pellerito, 878 F.2d at 1537.

_________
B.
B.
We

run

Applying the Framework.

Applying the Framework.
______________________

the gauntlet

of relevant

factors, discussing

them in sequence.
1.
1.

Plausibility of the Asserted Reasons.

Plausibility of the Asserted Reasons.
____________________________________

bent on withdrawing
plausible reason for

a guilty plea ordinarily

doing so.

F.2d 66, 72 (1st Cir. 1992).

defendant

must demonstrate a

See United States v. Tilley, 964

___ _____________
______

In this context, plausibility must

____________________

2Three facets of Rule 11 are especially important in this

respect.
Rule 11(c) prescribes, in exquisite detail, the advice
that a court must give to a defendant who indicates a desire to
enter a guilty plea.
Rule 11(d) prescribes a procedure for
ensuring that any plea is voluntary in nature.
Rule 11(e)
outlines a series of safeguards referable to plea agreements
between accuser and accused.
5

rest on more than the defendant's second thoughts about some fact
or point of
1203

law, see
___

(8th Cir.

United States v.
_____________

1993),

or

about

decision, see United States v.

___ ______________
Cir. 1991).

the

Nichols, 986 F.2d

_______
wisdom

of

Austin, 948 F.2d

______

his

1199,

earlier

783, 787

(1st

We do not think that either of appellant's proffered

reasons can vault this hurdle.

a.
a.

Refined to bare essence, appellant's flagship claim

is that, because the

under count
plea

2, he received nothing of

to count

premise:

government did not intend to

1.

This argument

963 F.2d 476, 479

carried

See, e.g., United States

___ ____ _____________

1988).

But this analogy

cf., e.g.,
___ ____

Corbitt v.
_______

224 n.14 (1978) (discussing

defendants who

trial); U.S.S.G.
level

a presentable

v. Atwood,
______

can only

862

be

Any time a defendant pleads guilty, he receives

some built-in benefits,

to

prescinds from

(1st Cir. 1992); United States v. Hogan,

______________
_____

389 (1st Cir.

so far.

U.S. 212,

value in exchange for his

after all, we frequently have said that plea agreements

are contractual in nature.

F.2d 386,

prosecute him

plead guilty

of

government does not make

439

leniency usually accorded

as opposed

3E1.1 (making available

for acceptance

New Jersey,
__________

to those
reduction in

responsibility), and

so

who stand

offense

long as

the

a material misrepresentation, renege on

a promise, or breach the plea agreement, see, e.g., Santobello v.

___ ____ __________
New York,
________

404 U.S. 257, 262

(1971), we do not

believe that any

further consideration is essential to support a guilty plea.

In any
his

event, appellant

bargain in this case.

received the full

benefit of

The indictment made manifest, and the

6

plea

the grand

jury's decision

appellant with two crimes,

___

not one.

Although appellant

been arraigned on count 2,

that was a matter of mere

He

agreement confirmed,

could have

been arraigned,

virtually any time.3

Thus, count

the

it

dismissal

appellant's

of

and, ultimately,

had not

mechanics.

prosecuted, at

2 remained a viable option and

benefitted

first asserted

to charge

appellant.

reason for

Accordingly,

seeking to

withdraw his

alternative reason, appellant

asserts that

plea lacks force.

b.
b.

As an

the dismissal of count 2 did not amount to valuable consideration

because the two counts
single charge.

of the indictment in reality

comprised a

This assertion mischaracterizes the components of

the indictment and the relationship of the counts inter sese.

_____ ____
We do not dispute the
assertion is founded.
shall

"be subject

Indeed,

for

the

jeopardy of life or limb."

the

Double Jeopardy

and

it is apodictic

same offence
U.S. Const.,

Clause shields

prosecution for the same

conviction,

basic proposition on which

also

to

that no
be

person

twice put

amend. V.

a defendant

defendant

in

To this end,
from a

second

offense after either an acquittal

shields

this

from

or a

multiple

____________________

3To be sure, an overlong period of delay between indictment

and
arraignment might
vitiate the
prospects for
future
prosecution. See U.S. Const. amend. VI; see also United States
___
___ ____ _____________
v. Mala, 7 F.3d 1058, 1061 (1st Cir. 1993). But the delay here,
____
as of the time appellant negotiated the plea agreement, was not
overly protracted.
And in any event, even an extraordinary
period of delay in arraigning a defendant does not automatically
annul an indictment, but merely serves, if and when raised, to
trigger an analysis of relevant factors that eventually may lead
to a dismissal of the charge.
See, e.g., Barker v. Wingo, 407
___ ____ ______
_____
U.S. 514, 530 (1972); Mala, 7 F.3d at 1062 n.3.
____
7

punishments for the same offense.

See Jones v. Thomas, 491

___ _____
______

U.S.

376, 380-81

(1989); United States v. Rivera-Martinez,

______________
_______________

148, 152 (1st Cir.), cert. denied,

_____ ______

931 F.2d

112 S. Ct. 184 (1991).

Thus,

an indictment may be regarded as repugnant to the Double Jeopardy

Clause

if it

count.

See
___

charges a

single offense

in more

United States v. Lilly, 983 F.2d

_____________
_____

than a

single

300, 302 (1st Cir.

1992).
The

Supreme

Court

has

spoken

to

this

topic

in

unambiguous terms:
The applicable rule is that where the same
act or transaction constitutes a violation of
two distinct statutory provisions, the test
to be applied to determine whether there are
two offenses or only one, is whether each
provision requires proof of a fact which the
other does not.
Blockburger
___________

v. United States, 284

______________

applying the

Blockburger test,
___________

U.S. 299,

the crimes charged

offenses, the defendant may be prosecuted

though they

arise out of

charged have

the same

the same elements, or

See United States v.

___ _____________

if one is

are discrete

if the

crimes

a lesser included

at some point will bar the

Dixon, 113 S. Ct.

_____

(1993); United States v. Colon-Osorio,

______________
____________

If,

for both offenses even

conduct, but

offense of the other, double jeopardy

door.

304 (1932).

10 F.3d

2849, 2857, 2860

41, 45-46

(1st

Cir. 1993).
Under Blockburger, appellant's claim fails.
___________
the indictment

requires a

showing that appellant,

Count 1 of

after having

been convicted of a felony, transported

discovered by

the police.

See
___

or possessed the firearm

18 U.S.C.

922(g)(1).

Count 2

requires a

showing that

been convicted

Concepcion, rather than

of a prior

felony, that Concepcion,

appellant, knowingly transported

that appellant, rather

appellant, had

rather than

or possessed

the firearm,

and

than Concepcion, aided

and abetted.

On

the allegations contained in that count, appellant could not have

been

convicted

under

section

922(g)(1), but

only

separate aiding and abetting statute, 18 U.S.C.

then, the elements of
identical.

2(a).

the two offenses are distinct

Hence, there is

under

the

Plainly,

rather than

no multiplicitousness.

See Colon___ ______

Osorio, 10 F.2d at 45.

______
2.
2.

Timing.
Timing.
______

guilty

plea is

before

sentencing, are

Pellerito,
_________

The timing

significant.

878 F.2d

of a

Delayed

motion to

requests,

generally regarded

at 1541.

The

rule of

withdraw a

even if

made

with disfavor.

See
___

thumb is

that the

longer
more

a defendant waits before moving to withdraw his plea, the

potency his

consideration.
In

motion must

have in

of

gain favorable

See Doyle, 981 F.2d at 595.

___ _____
this

case,

appellant

before he moved to withdraw his plea.

change

order to

heart followed

not

waited

roughly six

months

And, moreover, his belated

long after

the

PSI Report

document which contained, inter alia, information suggesting that

_____ ____
a stiff sentence loomed

arrived at the court's doorstep.4

appellant's case, then, a simple

chronology of events serves

In

to

____________________

4The PSI Report not only suggested a guideline sentencing

range of 188-235 months, but also indicated that grounds for an
upward departure might exist.
Appellant filed his motion to
withdraw shortly after having had an opportunity to examine the
report.
9

cast a long shadow

for

seeking

defendant's

to

over the legitimacy of his

change

explanations

course.

Courts

uncritically.

professed reasons

need

not

See generally
___ _________

accept

United
______

States v. O'Brien, 14 F.3d 703, 708 (1st Cir. 1994) (reminding us

______
_______

that "[t]here are limits to coincidence").

3.
3.
proposed

plea

assertion

of

Claim of Innocence.
Claim of Innocence.
____________________
withdrawal
innocence

is
may

withdrawal, and conversely,

weights

In

fair

and

just,

weight

the

scales

the absence of a

the opposite pan of the scales.

596; Kobrosky, 711

________
from this

tenet.

innocence.

F.2d at
In his

determining whether

455.

factor

in

favor

of

See Doyle, 981 F.2d at

___ _____

Appellant

cuts

defendant's

claim of innocence

derives no

motion papers, he did

Thus, this

comfort

not profess his

sharply against

allowing

appellant's motion to withdraw his guilty plea.

4.
4.
course,
withdraw

Other Considerations.
Other Considerations.
____________________

influence
a

whether

guilty

plea.

Other considerations can, of

defendant should

be

allowed

to

Here,

we

discern

no

however,

miscellaneous considerations that counsel in favor

appellant

to withdraw

his plea.

discloses that appellant entered

knowledge of the
F.2d

terms of

at 787, and under

To

of permitting

the contrary,

the record

the plea voluntarily, with full

the plea agreement,

see Austin,
___ ______

948

circumstances wherein the plea evidenced

an intentional relinquishment of a known right.

Furthermore,

despite

the

arraignment, the key facts were at

very

outset.

AUSA's

misstatement

appellant's disposal from the

The indictment itself was crystal clear.

10

at

The plea

agreement was

pellucid in

Then, too, the

of-plea

description of

court explained matters fully

hearing

understood

its

both

and

appellant

the agreement

assured
(which

consequences of the ensuing plea.

he entered into

the two

counts.

during the change-

the

court

he had

that

signed)

he

and the

He also assured the court that

the plea and the plea agreement

of his own free

will.
We will
law to

not paint the lily.

hold litigants to

analogous case, "[w]e

back

their assurances.

will not

suit his convenience

1539.

So it is here.

policy of the

As we wrote

permit a defendant

on his own representations

would

III.
III.

It is the

to the court

to do so."

in an

to turn

his

merely because it

Pellerito, 878
_________

F.2d at

CONCLUSION
CONCLUSION
We need go no

further.5

Given reasons for

that are lacking in plausibility, an

withdrawal

extended time lapse between

the original plea and the motion to withdraw, the

absence of any

assertion of innocence, the district court's scrupulous adherence

to the

dictates of Rule

circumstances, we

11, and

discern no

the totality of

hint of

the attendant

discretion abused

in the

court's refusal to permit appellant to withdraw his

guilty plea.

To be blunt, appellant had no entitlement to a second bite of the

fig

and we will not afford him one.

____________________

5Because appellant has utterly failed to present a fair and

just reason for plea withdrawal, we need not discuss possible
prejudice to the government.
See Doyle, 981 F.2d at 596 n.6;
___ _____
Buckley, 847 F.2d at 998 n.5.
_______
11

Affirmed.
Affirmed.
________

12