34 F.

3d 19

UNITED STATES of America, Appellee,

v.
Jorge GONZALEZ-VAZQUEZ, Defendant, Appellant.
No. 93-2042.

United States Court of Appeals,

First Circuit.
Heard Aug. 2, 1994.
Decided Sept. 8, 1994.

Jose A. Fuentes Agostini, with whom Dominguez & Totti, Hato Rey, PR,
was on brief, for appellant.
Jose A. Quiles-Espinosa, Sr. Litigation Counsel, Hato Rey, PR, with
whom Guillermo Gil, U.S. Atty., Washington, DC, Edwin O. Vazquez,
and Rosa Emilia Rodriguez-Velez, Asst. U.S. Attys., Hato Rey, PR, were
on brief, for appellee.
Before SELYA, BOUDIN and STAHL, Circuit Judges.
SELYA, Circuit Judge.

This criminal appeal requires that we ascertain whether the district court erred
either in denying appellant's motion to retract his guilty plea or in adding a twolevel weapons enhancement when calculating the guideline sentencing range
(GSR). Detecting no error, we affirm.

I.
The Background
2

On March 26, 1993, defendant-appellant Jorge Gonzalez-Vazquez (Gonzalez)

pleaded guilty to conspiracy to import heroin, and conspiracy to possess heroin
with the intent to distribute it. See 21 U.S.C. Secs. 963, 846, 952(a), and 841(a)
(1). The charges grew out of a sophisticated scheme or series of schemes,
lasting more than 15 months, in which appellant and 23 codefendants imported

large quantities of heroin from Hong Kong into the United States, and then
distributed it. Appellant played numerous roles in this elaborate plot, sometimes
buying heroin overseas, sometimes purveying drugs domestically, sometimes
acting as a courier, and sometimes serving as a bodyguard.
3

In return for appellant's guilty plea, the government agreed to recommend a

sentence at the low end of the GSR--but the agreement contained no stipulation
as to the parameters of the GSR. The government also agreed to drop several
other charges levelled against appellant. One charge remained unresolved: a
count accusing appellant of using or possessing a firearm during and in relation
to a drug-trafficking offense, in violation of 18 U.S.C. Sec. 924(c)(1).1 As to
that count, the plea agreement preserved appellant's right to trial.

Approximately four months after tendering his guilty plea, appellant moved to
withdraw it. The district court denied his motion. At the disposition hearing, the
court invoked U.S.S.G. Sec. 2D1.1(b)(1) and boosted the base offense level
(BOL) for appellant's possession of a dangerous weapon.2 After other
adjustments had been made and appellant's criminal history score had been
computed, a GSR of 262-327 months emerged. The prosecution recommended
an incarcerative sentence at the nadir of the range, and the district court
obliged. Apparently content not to exact a last pound of flesh, the government
then moved to dismiss the unresolved firearms count. The court granted the
government's motion. This appeal followed.

II.
The Motion to Withdraw
5

Appellant challenges the district court's denial of his plea-withdrawal motion,

asserting that he advanced a "fair and just reason" for retracting his guilty plea,
and that the district court should have given him safe passage. His asserted
reason masquerades as a claim that, when he tendered his plea, he did not fully
understand its consequences. Stripped of rhetorical flourishes, however,
appellant's core complaint appears to be that he did not realize that his GSR
would be so formidable.

Even prior to the imposition of sentence, a defendant does not have an

unqualified right to withdraw a guilty plea. See United States v. Parrilla-Tirado,
22 F.3d 368, 371 (1st Cir.1994); United States v. Buckley, 847 F.2d 991, 998
(1st Cir.1988), cert. denied, 488 U.S. 1015, 109 S.Ct. 808, 102 L.Ed.2d 798
(1989). Rather, a presentence motion to retract a plea 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)).3 The burden of proof rests with the
defendant. See United States v. De Alba Pagan, 33 F.3d 125, 127 (1st
Cir.1994); Parrilla-Tirado, 22 F.3d at 371. In deference to the intimate tricornered relationship among trial judge, prosecutor, and criminal defendant, we
review a district court's denial of a 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).
7

Federal courts use a multi-factor test as an aid in ascertaining whether a

proffered reason for withdrawal meets the criteria of Rule 32(d). This test is
familiar, see, e.g., De Alba Pagan, 33 F.3d at 126-27; Parrilla-Tirado, 22 F.3d
at 371; Doyle, 981 F.2d at 594; Pellerito, 878 F.2d at 1537, and does not bear
reiteration. Instead, we proceed directly to a factor-by-factor examination of
appellant's plaint.

1. Plausibility. Appellant claims that his decision to plead guilty was based
upon the government's agreement to recommend a sentence at the low end of
the GSR--a recommendation that, to appellant's way of thinking, meant 210
months. But that assumption stemmed from a miscalculation on appellant's
part--a miscalculation fueled by his hope that there would be no weapons
enhancement. It is a fact of law and life, too basic to warrant citation of
authority, that a criminal defendant cannot jettison a guilty plea knowingly,
intelligently, and voluntarily made merely because the sentencing judge calls a
tune that is not to the defendant's taste. It is a corollary of this principle that, as
we recently stated in a case comparable to this one, "the fact that a defendant
misapprehends the likely guideline sentencing range does not constitute a fair
and just reason for withdrawing a guilty plea." De Alba Pagan, 33 F.3d at 127;
accord United States v. Williams, 919 F.2d 1451, 1456-57 (10th Cir.1990),
cert. denied, 499 U.S. 968, 111 S.Ct. 1604, 113 L.Ed.2d 667 (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. Stephens, 906 F.2d 251,
253 (6th Cir.1990); United States v. Jones, 905 F.2d 867, 868-69 (5th
Cir.1990); United States v. Sweeney, 878 F.2d 68, 69-71 (2d Cir.1989).

This is a particularly weak case for a defendant to suggest that we should bend
the rule. The transcript of the change-of-plea hearing makes it pellucid that
Gonzalez knew at the time that, regardless of the eventual outcome of the thenunresolved weapons charge, he still faced the prospect of an enhanced BOL at
sentencing. During the hearing, 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
10

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.
11

Counsel added that he explained to Gonzalez that this tactic "could possibly
increase his offense level...." Hence, the ambush of which appellant now
complains was no ambush at all, but, rather, a frontal assault, with the
government's troops marshalled in plain view from the very onset of hostilities.
Appellant's articulated reason for seeking to scuttle his guilty plea is, therefore,
not plausible.

12

2. Timing. The timing of a motion to withdraw a guilty plea often serves as a

gauge for measuring the legitimacy of a proffered reason. Belated requests,
even if made before sentencing, are generally regarded as afterthoughts.
Consequently, the "longer a defendant waits 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.

13

Here, appellant waited approximately four months after pleading guilty and two
months after the release of his presentence investigation report (PSI Report)
before moving to retract his plea.4 Given the totality of the circumstances that
pertain here, appellant's lassitude serves to cast considerable doubt upon the
legitimacy of his professed reason for seeking to change course.

14

3. Assertion of Innocence. "In determining whether a proposed plea withdrawal

is fair and just, a defendant's assertion of innocence may weight the scales in
favor of withdrawal, and conversely, the absence of a claim of innocence
weights the opposite pan of the scale." Parrilla-Tirado, 22 F.3d at 373; accord
United States v. Kobrosky, 711 F.2d 449, 455 (1st Cir.1983). Appellant did not
proclaim his innocence in his plea-withdrawal motion. To the contrary, at the
disposition hearing he stated; "I know I committed a crime and I have to pay for
it." Appellant's explicit admission of his guilt militates strongly against
disturbing the ruling below.

15

4. Voluntariness. In reviewing the merits of a plea-withdrawal motion, an

inquiring court must determine whether, in light of the defendant's proffered
reason and any other newly disclosed facts, the guilty plea can still be deemed
voluntary and intelligent. See United States v. Austin, 948 F.2d 783, 786-87
(1st Cir.1991). Appellant makes no challenge to the sufficiency of the Rule 11
proceeding in this case, and, indeed, the colloquy is a model of thoroughness.

16

We need go no further. It is apparent that no hint of error tainted the district

court's refusal to allow appellant to retract his guilty plea. Consequently,
Gonzalez's conviction must stand.

III.
The Sentence
17

Appellant also challenges the district court's reliance on U.S.S.G. Sec. 2D1.1(b)
(1) in the course of formulating his sentence. He maintains that his alleged
possession of the firearm, and, hence, the applicability of the guideline, was not
proven by a fair preponderance of the evidence; and that, in any event, the
guideline's applicability had to be demonstrated beyond a reasonable doubt
inasmuch as the increase imposed under the guideline is in reality an additional
sentence, not a sentencing enhancement. We do not accept either contention.

18

1. Sufficiency of the Proof. Appellant's initial sentencing sortie is effortlessly

repulsed. In gauging the sufficiency of the factual foundation on which a
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
the district court's application of the guidelines to the facts." 18 U.S.C. Sec.
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).

19

In the case at hand, the district court's factfinding survives clear-error review.
This conclusion is reached more easily because of the Sentencing
Commission's specific instruction that section 2D1.1(b)(1) "should be applied if
the weapon was present, unless it is clearly improbable that the weapon was
connected with the offense." U.S.S.G. Sec. 2D1.1(b)(1), comment. A
sentencing court must, of course, honor this type of instruction. See, e.g.,
United States v. Fiore, 983 F.2d 1, 2 (1st Cir.1992) (explaining that the
Sentencing Commission's interpretation of a guideline should be followed
unless it is "arbitrary, unreasonable, inconsistent with the guideline's text, or
contrary to law"), cert. denied, --- U.S. ----, 113 S.Ct. 1830, 123 L.Ed.2d 458
(1993).

20

Here, the record supports a finding that appellant served as a bodyguard while
one of 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 the encounter.5 Under these circumstances, we
must 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.

21

Appellant tries to stave off the near-irresistible force of these findings in two
ways. First, he suggests that, to warrant an adjustment under U.S.S.G. Sec.
2D1.1(b)(1), the evidence must establish the same panoply of elements that are
needed to prove the statutory "carrying and use" of a weapon in furtherance of a
drug crime, see 18 U.S.C. Sec. 924(c)(1).6 The suggestion is fanciful, for the
guideline can be triggered with considerably greater ease.

22

The point is readily susceptible to illustration. For one thing, while mere
possession of a firearm during 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, --- U.S. ----, 113 S.Ct. 2935, 124 L.Ed.2d 684 (1993),
the reverse is often true under the guideline, see, e.g., Ruiz, 905 F.2d at 507
("Mere 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, 360 (1st Cir.1989)
(similar). For another thing, the "clearly improbable" language quoted above
makes a huge difference. Under the statute, the government's burden of
persuasion never varies. Under the guideline, however, once the underlying
crime and the presence of a firearm have been established, the burden then
shifts to the defendant to show, or at least produce some evidence of, "the
existence of special circumstances that would render it 'clearly improbable' that
the weapon's presence has a connection to the narcotics trafficking." United
States v. Corcimiglia, 967 F.2d 724, 728 (1st Cir.1992) (quoting Commentary).
This distinction is of paramount importance here, as the record justifies a
finding of possession, and appellant has neither produced nor pointed to the
existence of any evidence indicating the improbability of a facilitative nexus
between the gun and the crime.

23

Appellant's next effort at annihilating the two-level increase amounts to an

attack on the reliability of the government's proof. The fusillade misses the
target. To be sure, the court's findings are based primarily on the PSI Report,
which, in turn, relies heavily on grand jury testimony, coconspirators'
statements, and other hearsay. But appellant's castigation of this evidence
overlooks the special nature of sentencing proceedings. In the sentencing phase
of a case, the Federal Rules of Evidence do not apply. Thus, "[f]acts contained
in a presentence report ordinarily are considered reliable evidence for
sentencing purposes." United States v. Morillo, 8 F.3d 864, 872 (1st Cir.1993)
(citing cases). By like token, grand jury testimony may be consulted for
sentencing purposes. See United States v. Zuleta-Alvarez, 922 F.2d 33, 36 (1st
Cir.1990) ("The sentencing court is free to rely upon outside evidence,
including hearsay evidence that has never been subject to cross-examination."),

cert. denied, 500 U.S. 927, 111 S.Ct. 2039, 114 L.Ed.2d 123 (1991).
Particularly where, as here, the defense has adduced no countervailing
evidence, the district court is entitled to rely upon the PSI Report, grand jury
testimony, and the like. See Morillo, 8 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.
24

2. Use of the Preponderance Standard. Appellant's fallback position is that,

even if the proof suffices on a preponderance standard, using that standard
transgresses his due process rights. He hinges this claim on the thesis that the
increase in his sentence attributable to the section 2D1.1(b)(1) adjustment
(agreed by the parties to have been 52 months) is roughly equivalent to the
length of the mandatory minimum sentence for violating 18 U.S.C. Sec. 924(c)
(1) (60 months), and, therefore, demands proof beyond a reasonable doubt.
Though we give appellant's counsel high marks for ingenuity, his thesis does
not earn a passing grade.

25

In the first place, appellant failed to unfurl the thesis in the lower court.
Accordingly, it is procedurally defaulted and merits rejection on that basis
alone. See United States v. Dietz, 950 F.2d 50, 55 (1st Cir.1991) ("We have
repeatedly ruled, in connection with sentencing as in other contexts, that
arguments not seasonably addressed to the trial court may not be raised for the
first time in an appellate venue.") (collecting cases).

26

In the second place, the thesis lacks substance. It is well settled that a
sentencing proceeding differs from a trial; by definition, the defendant's guilt
has been established the presumption of innocence has dissipated, and,
consequently, the prosecution need not prove the facts upon which it relies for
sentencing purposes beyond a reasonable doubt. See McMillan v. Pennsylvania,
477 U.S. 79, 91, 106 S.Ct. 2411, 2418-19, 91 L.Ed.2d 67 (1986); United States
v. Tardiff, 969 F.2d 1283, 1289 (1st Cir.1992); United States v. Wright, 873
F.2d 437, 441 (1st Cir.1989). This rule does not offend due process. See
McMillan, 477 U.S. at 91, 106 S.Ct. at 2418-19; see also United States v.
Vinson, 886 F.2d 740, 742 (4th Cir.1989) (holding that in sentencing
proceedings due process does not necessitate a level of proof greater than a
preponderance of the evidence), cert. denied, 493 U.S. 1062, 110 S.Ct. 878, 107
L.Ed.2d 961 (1990). Inspected in this light, appellant's constitutional challenge
fails.

27

Nor does it make a significant difference that the government originally pressed
charges under 18 U.S.C. Sec. 924(c)(1), quoted supra note 1. After all, the fact
that a defendant is not charged, or could not be convicted, under section 924(c)

is not determinative of whether a weapons enhancement may be appropriate

under the sentencing guidelines. See United States v. Jackson, 3 F.3d 506, 509
(1st Cir.1993); see also Mocciola, 891 F.2d at 17 (holding that even the facts
underlying a prior acquittal on a weapons charge may be considered by the
sentencing court for enhancement purposes).7 We see no reason why the same
rule should not apply where, as here, the prosecution simply dismisses the
weapons count. And we think it is immaterial that, in the plea agreement,
appellant reserved the right to trial on the statutory weapons charge.
28

Appellant makes a last-ditch effort to salvage his due process claim. He revives
the infamous "Catch-22" argument that this court rejected in Mocciola, but with
a twist. In Mocciola, the defendant, who was charged with both drug trafficking
and violating section 924(c), argued that the weapons enhancement permitted
by the guidelines created a "Catch-22" because, in respect to the firearms
charge, whether he pled guilty or earned an acquittal after trial did not really
matter. See Mocciola, 891, F.2d at 17. We dismissed this argument, reasoning
that it "misperceives the distinction between a sentence and a sentence
enhancement." Id. at 17. In so holding, we commented that the guideline
adjustment added only 15 months to Mocciola's sentence while a conviction
under the statute would have yielded a mandatory 60-month consecutive
sentence.

29

Appellant pounces on this comment. He contrasts it with his situation,

observing that the additional time tacked onto his sentence as a result of the
guideline enhancement (52 months) is nearly equal to the prescribed statutory
punishment (60 months). We do not believe that this circumstance makes a
legally relevant difference.

30

A sentence is a sentence. Conversely, an enhancement is an enhancement-here, two levels, regardless of the BOL--and the incremental effect of the
enhancement on any particular sentence is the product of the interaction of a
myriad of factors. The increase in the ensuing sentence, whatever the duration,
neither alters the enhancement's fundamental character nor bears on whether
the facts underlying it must be established by a different quantum of proof. Cf.
United States v. Rehal, 940 F.2d 1, 6 (1st Cir.1991) (holding that enhancing a
sentence because of a defendant's perjurious testimony does not require proof
by the same standard as a perjury charge, but need only be proved by a
preponderance of the evidence). In short, appellant's complaint about the length
of the increment in his case might appropriately be addressed to Congress or
the Sentencing Commission; it cannot rewardingly be addressed to the courts.

31

Affirmed.

31
1

The 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. Sec. 924(c)(1) (1988).

The applicable guideline, U.S.S.G. Sec. 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

Fed.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."

The 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

The 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. Sec. 924(c)(1), we abjure
comment on the reliability of the evidence underpinning this more menacing
scenario

The 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

Mocciola 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)