United States Court of Appeals

For the First Circuit

No. 19-1791

UNITED STATES OF AMERICA,

Appellee,

v.

LAWRENCE ANDERSON FONSECA, 

f/k/a Lawrence Anderson Fonseca-Garcia,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before

Barron, Chief Judge,

Selya and Lipez, Circuit Judges.

José R. Olmo-Rodríguez for appellant.

Thomas F. Klumper, Assistant United States Attorney, Senior 

Appellate Counsel, with whom W. Stephen Muldrow, United States 

Attorney, and Mariana E. Bauzá-Almonte, Assistant United States 

Attorney, Chief, Appellate Division, were on brief, for appellee. 

September 8, 2022
- 2 -

LIPEZ, Circuit Judge. Lawrence Anderson Fonseca and 

four co-defendants were charged with conspiring to import cocaine 

into the United States, in violation of 21 U.S.C. §§ 959, 960 and 

963, and money laundering to promote this conspiracy in violation 

of 18 U.S.C. § 1956(a)(2)(A). Following the denial of his motion 

to dismiss the indictment, Fonseca pleaded guilty to the conspiracy 

count. He subsequently filed several motions to withdraw his plea, 

each of which was denied by the district court. On appeal, Fonseca 

argues that he should be allowed to withdraw his guilty plea and 

that the indictment against him should be dismissed. Although our 

rationale on the plea withdrawal request differs somewhat from 

that of the district court, we affirm. 

I.

A. The Underlying Conviction

Fonseca is a citizen and resident of the British Virgin 

Islands ("BVI"). As set forth in the statement of facts 

incorporated into his plea agreement, Fonseca and his codefendants conspired, from approximately May 2012 to July 2014, to 

import at least five kilograms of cocaine into the United States. 

The statement of facts identifies several overt acts committed in 

the United States in furtherance of the conspiracy, although 

ultimately no drugs were ever imported into the country. The 

government has not disputed that Fonseca lived in the BVI 

throughout the relevant timeframe. 
- 3 -

Fonseca first moved to dismiss the indictment in October 

2015. Relying on principles of extraterritorial jurisdiction, he 

argued that the district court lacked subject matter jurisdiction 

over the case because he was a citizen and resident of the BVI 

and, he claimed, had taken no actions with an actual or intended 

effect in the United States. He also argued that any overt acts 

undertaken in the United States by his co-conspirators were too 

insignificant to support subject matter jurisdiction over him. 

Finally, Fonseca argued that the court lacked personal 

jurisdiction over him because he had been unlawfully transported 

to Puerto Rico after being detained by United States agents in the 

Dominican Republic, and that the court should, at a minimum, hold 

an evidentiary hearing on this issue. The district court denied 

these claims in March 2016.

Fonseca pleaded guilty in August 2016 with the 

assistance of counsel. As described above, the plea agreement 

incorporated a statement of facts, which Fonseca "adopt[ed] . . . 

as his own testimony." In this statement, he acknowledged that he 

had conspired to import cocaine into the United States and that he 

or his co-conspirators had engaged in several overt acts involving 

money transfers to or from the United States. The transactions

included Fonseca's receipt of a $5,000 wire transfer from 

California, sent by his co-defendant Terrence Edwards, and a 

$35,000 transfer of funds from co-defendant Justin Gumbs to the 
- 4 -

United States bank account of Fonseca's wife and co-defendant,

Sharon Rodriguez. The plea agreement also included a waiver of 

appeal provision, in which Fonseca agreed that if his sentence was 

consistent with (or more lenient than) the recommendation set forth 

in the plea agreement, he "knowingly and voluntarily waive[d] and 

surrender[ed] his right to appeal the judgment and sentence in 

this case." On the recommendation of a magistrate judge, the 

district court accepted his guilty plea. 

B. Fonseca's Plea Withdrawal Motions

In March 2017, several days before his scheduled 

sentencing date, Fonseca filed his first pro se motion to withdraw 

his plea, as well as a motion to "withdraw" his counsel from the 

case. In the plea withdrawal motion, he argued that he was 

innocent, claiming that his involvement in the conspiracy was 

"[i]nconclusive," and that his attorney had misled and pressured 

him into pleading guilty and had not adequately investigated the 

allegations.

The district court postponed the sentencing hearing 

pending a decision on these motions and referred the attorney 

withdrawal motion to a magistrate judge for disposition, who denied 

it after a hearing. The district court denied the plea withdrawal

motion, finding that Fonseca had pleaded guilty knowingly, 

voluntarily, and intelligently. The court noted that Fonseca's

"general, unsubstantiated" statement that he was innocent was not 
- 5 -

entitled to any weight and that he had not explained why he had 

adopted the statement of facts in his plea agreement admitting to 

the offense conduct. The district court also found that Fonseca 

had not proffered any evidence that he had been confused about the 

accusations or had been unduly pressured into pleading guilty. 

Finally, the court found that the delay of more than seven months

between Fonseca's guilty plea and the motion weighed against 

withdrawal, as did the prejudice to the government if withdrawal 

were permitted (i.e., the court's belief that the government would 

be prejudiced by the additional cost to prepare for trial). 

In May 2017, Fonseca again moved pro se to withdraw his 

guilty plea and asserted various defenses. Several months later, 

before that motion was decided, he filed a third pro se motion 

raising similar arguments and emphasizing the court's purported 

lack of personal jurisdiction over him. The court denied both 

motions in November 2017, concluding that Fonseca had not put forth 

any new arguments.

In February 2018, four days before Fonseca's rescheduled 

sentencing date, new counsel for Fonseca appeared and filed a 

request to again continue sentencing, which the court granted.

Following several more postponements allowed by the court, Fonseca 

filed a fourth motion to withdraw his guilty plea.

In support of his new request, Fonseca cited statements 

made by his co-defendant Edwards, who had testified at the 
- 6 -

sentencing hearing of co-defendant Gumbs. At this sentencing 

hearing -- which occurred in August 2017, between Fonseca's second 

and third plea withdrawal requests -- Edwards made several comments 

that Fonseca claims are exculpatory as to him. First, Edwards 

testified that he had traveled to the BVI in October 2012 to help 

Fonseca and Gumbs obtain narcotics but found that "there was 

nothing" when he arrived. Edwards also stated that, at several 

points during the conspiracy, Edwards had told Gumbs that he 

believed Gumbs was lying about whether Gumbs and Fonseca would

ultimately procure drugs. Fonseca argued that this testimony 

showed that Fonseca's communications with his co-defendants about 

importing drugs were actually part of a scam to steal money from 

them -- and, hence, that Fonseca had not taken part in any actual 

conspiracy to import drugs.

The new request was referred to a magistrate judge, who 

found that Fonseca's assertion that he is innocent and the timing 

of his request -- which was made after he learned of Edwards's

testimony -- weighed in favor of withdrawal. However, the 

magistrate judge found that Fonseca's plea had been knowing and 

voluntary and that Edwards's testimony was not new, nor was it 

exculpatory -- findings that weighed against withdrawal.1 The 

1 Nevertheless, as we will discuss in more detail, the 

magistrate judge -- and later the district court -- appears to 

have erroneously believed that the mere invocation of an innocence 
- 7 -

magistrate judge then considered the question of prejudice to the 

government and concluded that the government would not be 

significantly prejudiced by withdrawal. Weighing these factors 

together, the magistrate judge recommended that the district court 

grant Fonseca's motion.

The district court took a different view. Although it

agreed with the magistrate judge's assessment of several of the 

factors militating for and against withdrawal, it disagreed that 

the timing of the request favored withdrawal. The district court 

also found that Fonseca had not adequately explained either the 

nearly one-year gap between Edwards's testimony and Fonseca's 

fourth withdrawal motion, or the initial seven-month delay between 

the plea itself and his first withdrawal motion in March 2017. 

Further, the district court found that the government would be 

prejudiced by withdrawal. It therefore denied Fonseca's request 

to withdraw his plea.

Fonseca filed two motions for reconsideration, both of 

which were denied. In June 2019, he was sentenced to 120 months'

imprisonment, which was consistent with the recommendation set 

forth by the government in his plea agreement. This appeal 

followed. 

claim was sufficient to tilt this factor in Fonseca's favor, 

regardless of the strength of the claim. 
- 8 -

II.

Fonseca raises three arguments on appeal. He claims 

that the district court (1) abused its discretion by denying his 

request to withdraw his guilty plea,2 (2) erred in denying his 

motion to dismiss for lack of subject matter jurisdiction, and (3) 

erred in denying his motion to dismiss for lack of personal 

jurisdiction.

A. Plea Withdrawal

Before turning to the merits of Fonseca's plea

withdrawal claim, we briefly address the waiver-of-appeal 

provision in his plea agreement, which prohibits an appeal from

the "judgment and sentence" in his case. Unlike most other 

circuits, we have never squarely addressed whether an appeal from 

the denial of a motion to withdraw a plea constitutes a challenge 

to a defendant's "judgment" or "conviction" as a matter of law.3 

2 While Fonseca has moved to withdraw his plea several times, 

the arguments he raises on appeal pertain to his fourth plea 

withdrawal request, and he does not renew any arguments that were 

specific to any of his earlier requests. Accordingly, our analysis 

is limited to his fourth motion. See Young v. Wells Fargo Bank, 

N.A., 828 F.3d 26, 32 (1st Cir. 2016) (stating that we do not 

consider arguments for reversing a district court's decision that 

were not raised in a party's opening brief). 

3 We have previously suggested that there is a "strong 

argument" that an appeal from the denial of a motion to withdraw 

a plea is encompassed by the language of an appellate waiver 

barring challenges to the conviction and sentence. See United 

States v. Caramadre, 807 F.3d 359, 377 n.9 (1st Cir. 2015). 

Indeed, all other circuits to have addressed the issue have found 

that a plea withdrawal motion constitutes a challenge to the 

defendant's conviction. See, e.g., United States v. Alcala, 678 
- 9 -

If it does, then Fonseca's motion would fall within the scope of 

the appeal waiver, and we would ordinarily enforce this provision 

so long as it was entered into knowingly and voluntarily, and so 

long as doing so would not work a "miscarriage of justice." See

United States v. Teeter, 257 F.3d 14, 23-26 (1st Cir. 2001).4 

However, the government has conceded that we should

proceed directly to the merits of Fonseca's appeal on the motion 

to withdraw issue -- i.e., the question of whether the district 

court abused its discretion in denying Fonseca's motion to withdraw 

his guilty plea. In making this concession, the government relies 

on a series of cases in which we have held that "a court may opt 

to go directly to the merits of an appeal where a defendant who 

has entered a guilty plea and agreed to waive his right to appeal 

seeks to challenge an aspect of the plea which, 'if successful, 

would invalidate both the plea itself and the waiver of his right 

to appeal.'" United States v. Sevilla-Oyola, 770 F.3d 1, 10 n.17 

F.3d 574, 578 (7th Cir. 2012) (holding that "a defendant challenges 

his conviction when he challenges the district court's denial of 

his motion to withdraw a plea"); United States v. Toth, 668 F.3d 

374, 378–79 (6th Cir. 2012) (same, and collecting cases from other 

circuits). 

4 The "miscarriage of justice" exception to enforcement of an 

otherwise valid appellate waiver "requires a strong showing of 

innocence, unfairness, or the like." Sotirion v. United States, 

617 F.3d 27, 36 (1st Cir. 2010) (quoting United States v. GilQuezada, 445 F.3d 33, 37 (1st Cir. 2006)). We express no view on 

whether Fonseca could meet this requirement, as he has not raised 

this issue.
- 10 -

(1st Cir. 2014) (quoting United States v. Chambers, 710 F.3d 23, 

27 (1st Cir. 2013)). 

The government is correct that we have previously held 

that a motion to withdraw a guilty plea is a challenge to the 

plea's validity when the defendant argues that the plea was not

entered into knowingly and voluntarily. See Chambers, 710 F.3d at

27. Likewise, we have held that a motion to withdraw a guilty 

plea on the ground that the district court failed to ascertain a 

sufficient factual basis for the plea is also a challenge to the 

plea's "validity." See United States v. Torres-Vázquez, 731 F.3d 

41, 44 (1st Cir. 2013). However, our case law has yet to directly 

address the specific scenario raised here: whether a claim of newly 

discovered exculpatory evidence underlying a claim of innocence, 

asserted as part of the grounds for permitting the withdrawal of 

a guilty plea, is a challenge to the plea's validity. 

We need not decide whether Fonseca's innocence claim 

falls squarely within this line of cases, however, because -- even 

assuming we were to resolve this question favorably to Fonseca and 

conclude that the waiver of appeal provision in the plea agreement 

does not bar an appeal from the denial of his motion to withdraw 

the plea -- his argument that the district court abused its 

discretion fails on the merits. We therefore accept the 

government's concession and assume, as do the parties, that 
- 11 -

Fonseca's claim is reviewable for the purposes of resolving this 

appeal.

1. Legal Standard

We review the district court's denial of a request to 

withdraw a guilty plea for abuse of discretion. United States v. 

Mendoza, 963 F.3d 158, 161 (1st Cir. 2020). The ultimate question 

is whether the defendant has demonstrated that a "fair and just 

reason" for withdrawal exists. See United States v. ParrillaTirado, 22 F.3d 368, 371 (1st Cir. 1994) (quoting Fed. R. Crim. P. 

32(d)). To assess whether that burden has been met, courts 

consider the totality of the circumstances, including: "(1) 

whether the plea was knowing and voluntary and in compliance with 

[Federal] Rule [of Criminal Procedure] 11, (2) the strength of the 

reason for withdrawal, (3) the timing of the motion to withdraw, 

(4) whether the defendant has a serious claim of actual innocence, 

(5) whether the parties had reached (or breached) a plea agreement, 

and (6) whether the government would suffer prejudice if withdrawal 

is allowed." United States v. Gardner, 5 F.4th 110, 118 (1st Cir. 

2021).5 The most important consideration is whether the plea was 

5 At times we have suggested that district courts are required

to defer consideration of prejudice to the government until after 

the defendant has made a preliminary showing of a fair and just 

reason for withdrawal. See United States v. Merritt, 755 F.3d 6, 

9 (1st Cir. 2014). At other times we have treated the presence or 

absence of prejudice to the government holistically, as a relevant

factor to be weighed against the others in determining whether a 

fair and just reason for withdrawal exists. See United States v. 
- 12 -

knowing and voluntary. See United States v. Isom, 580 F.3d 43, 52 

(1st Cir. 2009). 

2. The Strength of the Reason for Withdrawal and 

a Serious Claim of Actual Innocence

Fonseca primarily argues that he should be allowed to 

withdraw his guilty plea because the testimony of co-defendant 

Edwards provided exculpatory evidence that was unavailable to him

when he pleaded guilty. As previously described, Edwards testified

at co-defendant Gumbs's sentencing hearing that, in October 2012 

when Edwards first traveled to the BVI to help Fonseca procure 

drugs, "there was nothing" -- i.e., Fonseca and Gumbs had not 

identified or secured any drugs. He also testified that he could 

never be sure when Gumbs was lying about his plans to import drugs 

with Fonseca. Fonseca argues that this testimony supports his 

claim that his interactions with Edwards and others were part of 

a scam, that he never intended to import drugs, and that he pleaded 

guilty to help secure a more favorable plea deal for his wife (codefendant Rodriguez).6 He maintains that he would not have pleaded 

Dunfee, 821 F.3d 120, 127 (1st Cir. 2016) (per curiam); compare

Gardner, 5 F.4th at 118-19 & n.9 (considering these factors 

holistically), with id. at 122 (Lynch, J., dissenting) (arguing 

that a court may consider prejudice only if the totality of the 

other factors weighs in favor of withdrawal). This case does not 

require us to resolve this apparent uncertainty in our case law,

as the totality of the circumstances weigh against Fonseca's 

request regardless of which approach is taken. 

6 Fonseca also made general assertions of innocence in his 

first three plea withdrawal motions, but these motions did not 
- 13 -

guilty if Edwards's testimony had been available to him at the 

time. 

A court must assess the force and plausibility of the 

reasons proffered for withdrawal. See United States v. Isom, 85 

F.3d 831, 837 (1st Cir. 1996). Here, because the primary reason 

for withdrawal Fonseca proffered -- Edwards's testimony -- is 

inextricably bound up with his claim of innocence, we consider the 

"strength of the reason" and the "serious claim of actual 

innocence" factors together.

 The district court found that Fonseca's explanation for 

the withdrawal request was implausible. It noted that the 

substance of Edwards's testimony was not new. In so concluding, 

it relied on summaries of recorded phone calls between Edwards and 

Gumbs that were provided to Fonseca in discovery prior to his 

plea.7 These summaries included conversations between Edwards and 

Gumbs in the spring of 2014 discussing Fonseca's past failure to 

secure drugs. During these conversations, Edwards told Gumbs that, 

among other things, Fonseca was "full of shit" and did not have 

any drugs. Elsewhere in the call summaries, Edwards expresses to 

Gumbs that he does not trust Fonseca and is tired of dealing with 

develop the argument that he raised in his fourth motion, and on 

appeal, regarding the efforts to "scam" his co-defendants.

7 Fonseca's plea agreement confirmed that "[f]ull discovery 

ha[d] been provided to the defendant."
- 14 -

him. The district court further concluded that, "while portions 

of Edwards's testimony may support [Fonseca's] claim of innocence, 

they are certainly not exculpatory." Finally, the district court 

noted Fonseca's shifting explanations for his guilty plea. In his 

first two motions to withdraw his plea, Fonseca had argued that he 

had been pressured to plead guilty by his counsel. In his fourth 

plea withdrawal request, however, Fonseca conceded that his plea 

had been knowing and voluntary, and instead asserted for the first 

time -- and with no record support -- that he had pleaded guilty 

to secure a better deal for Rodriguez.

We see no error in the district court's consideration of 

Fonseca's proffered reasons for withdrawal. The statements 

Fonseca received in discovery were substantially similar to 

Edwards's testimony, and Fonseca therefore could have made the 

same arguments about his lack of intent before he pleaded guilty. 

See United States v. Adams, 971 F.3d 22, 38-39 (1st Cir. 2020) 

(affirming denial of a plea withdrawal motion based on evidence to 

which the defendant had access before his plea). Nor did the 

district court err in finding that Fonseca's evolving rationales

for seeking to withdraw his guilty plea raised concerns about the 

veracity of his newly proffered reasons. Cf. Parrilla-Tirado, 22 

F.3d at 371 ("[P]lausibility [of the asserted reasons for 

withdrawal] must rest on more than the defendant's second thoughts 
- 15 -

about some fact or point of law, or about the wisdom of his earlier 

decision [to plead guilty]." (internal citations omitted)).

The district court's conclusion that Edwards's testimony 

was not "exculpatory" is also supportable. Edwards's testimony, 

if credited, would establish that Edwards harbored some mistrust 

of Fonseca, but this fact is not inherently exculpatory. Moreover, 

other portions of Edwards's testimony could undermine Fonseca's 

claim of innocence. For example, Edwards also attested to the

authenticity of a photograph of what is alleged to be a brick of 

cocaine in Fonseca's car.8

As to the "serious claim of actual innocence" factor, 

the district court did not explicitly analyze whether Fonseca had 

raised such a claim. Instead, it determined that Fonseca's 

repeated assertions of his innocence since pleading guilty weighed 

in favor of withdrawal, without considering whether these 

assertions were "serious." We have made clear that "weak and 

implausible assertions of innocence" do not weigh in favor of 

withdrawal. See United States v. Sanchez-Barreto, 93 F.3d 17, 24 

(1st Cir. 1996); see also United States v. Gates, 709 F.3d 58, 69

(1st Cir. 2013) ("Merely voicing a claim of innocence has no weight 

in the plea-withdrawal calculus; to be given weight, the claim 

must be credible."). The district court therefore erred in 

8 Fonseca disputed that this was cocaine before the district 

court.
- 16 -

crediting Fonseca for merely asserting his innocence. See United 

States v. Ramos, 810 F.2d 308, 313 (1st Cir. 1987) (noting that 

the "court did not abuse its discretion in refusing to give weight 

to a self-serving, unsupported claim of innocence raised 

judicially for the first time after the Rule 11 hearing").

However, we take the district court's supportable conclusion that 

Edwards's testimony was not exculpatory as tantamount to a finding 

that Fonseca's claim of innocence -- which is primarily supported 

by Edwards's testimony -- is not "serious." We therefore conclude 

that the district court supportably found that Fonseca had not 

proffered a "serious claim of actual innocence" notwithstanding 

the fact that it also erroneously credited him for the mere 

assertion of his innocence. See Sanchez-Barreto, 93 F.3d at 24

(suggesting that district courts are better positioned to 

determine whether invocations of innocence are credible and 

affirming a district court's assessment that the defendants' 

claims were too weak to favor withdrawal).9 

3. The Remaining "Fair and Just Reason" Factors

We briefly address the remaining factors assessed by the 

district court: the timing of Fonseca's motion, whether his plea 

9 We note that we are particularly reluctant to disturb the 

district court's conclusion where, as here, the claim of innocence 

contradicts statements made or adopted by Fonseca in the plea 

agreement and at the change of plea hearing. See United States v. 

Santiago Miranda, 654 F.3d 130, 139 (1st Cir. 2011).
- 17 -

was entered knowingly and voluntarily, and any prejudice to the 

government.

i. The Timing of the Motion

Courts consider the length of time between the entry of 

a guilty plea and a motion for withdrawal. An "excessive delay 

saps strength from any proffered reason for withdrawal." United 

States v. Doyle, 981 F.2d 591, 595 (1st Cir. 1992). 

The district court found that this factor also weighed 

against withdrawal, noting that, by the time Fonseca filed his

fourth withdrawal motion in August 2018, roughly six months had 

passed since his new attorney's notice of appearance and over one 

year had passed since Gumbs's sentencing hearing, at which Edwards 

had testified. The district court reasoned that Fonseca had not 

justified either of these delays, nor had he justified the sevenmonth delay between the entry of the plea itself and his first 

plea withdrawal request.10 

The district court reasonably weighed these delays 

against withdrawal. Even assuming, arguendo, that Fonseca only 

needed to justify the roughly year-long gap between Edwards's 

testimony and his fourth withdrawal request (as opposed to the 

10 In this respect, the district court's reasoning differed 

from that of the magistrate judge. The magistrate judge 

recommended that the timing factor be weighed in Fonseca's favor 

because his motion came after he learned of Edwards's testimony. 

We find the district court's reasoning more persuasive. 
- 18 -

longer delay from the entry of the plea itself), Fonseca has failed 

to proffer any reason for this lengthy delay. Nor has he justified

the months-long delay between his new attorney's February 2018 

notice of appearance and the motion. See, e.g., United States v. 

Dunfee, 821 F.3d 120, 131 (1st Cir. 2016) (per curiam) (holding 

that an approximately two-month delay between entry of the guilty 

plea and defendant's motion to withdraw weighed against 

withdrawal); United States v. Pagan-Ortega, 372 F.3d 22, 31 (1st 

Cir. 2004) (same). 

ii. Knowing and Voluntary

Fonseca concedes that his plea was knowing and 

voluntary. Given that the knowing and voluntary nature of a plea 

is the "most important" issue to consider in the withdrawal 

analysis, the district court properly reasoned that Fonseca's 

undisputedly knowing and voluntary plea weighed heavily against 

withdrawal. See Isom, 580 F.3d at 52. 

iii. Prejudice to the Government

The district court also addressed the issue of 

prejudice. It found that the government would be prejudiced by 

the burden of trial preparation and the unavailability of one of 

its witnesses, Peter Lev, who had since been deported. Fonseca 

objects to the district court's reliance on Lev's absence because 

the government did not raise this argument before the magistrate 

judge and introduced it for the first time in its objections to 
- 19 -

the report and recommendation. Fonseca is correct that the 

government has waived this argument. See United States v. RosadoCancel, 917 F.3d 66, 69 (1st Cir. 2019) (deeming an argument waived 

when it was not properly raised before a magistrate judge). 

Moreover, in the absence of an argument regarding Lev, the 

government's general invocation of prejudice from its trial 

preparation obligations falls short of tilting this factor in its 

favor. See Gardner, 5 F.4th at 118-19 (noting that this factor 

did not weigh in the government's favor when the government could 

show no prejudice "beyond the burdens that inevitably accompany 

any withdrawal [such as] . . . proceeding to trial"). 

* * *

In sum, the district court's analysis of the plea 

withdrawal motion was flawed in two respects. First, the district 

court erred in concluding that Fonseca's mere assertion of 

innocence weighed in favor of withdrawal, despite the substantive 

weakness of his claim. Second, it erred in its prejudice analysis 

by assigning weight to a waived argument and to garden-variety 

trial preparation by the government. However, the district court 

properly found that Fonseca's reasons for seeking withdrawal 

lacked plausibility, that his claim of innocence was not strong,
- 20 -

that his motion was belated, and that his plea was voluntary -- all 

factors that properly weigh against withdrawal.11 

Ultimately, the district court's errors were immaterial 

to the result it reached. Its error in assigning weight to 

Fonseca's repeated assertions of innocence was favorable to

Fonseca. If the court had properly declined to credit Fonseca's

substantively weak assertion of innocence, the fair and just reason 

for withdrawal calculus would have weighed even more heavily

against him. And while the court applied undue weight to the 

government's general invocation of prejudice, this error in 

finding prejudice to the government was also immaterial under the 

circumstances. The mere absence of prejudice to the government, 

without more, does not suffice to establish a "fair and just 

reason" for withdrawal. See Nunez Cordero v. United States, 533 

F.2d 723, 726 (1st Cir. 1976) (rejecting the premise that "absent 

a showing of prejudice by the government, withdrawals of pleas 

before sentence should be granted as a matter of course"). 

In criminal matters subject to the trial court's 

discretion, we typically find an abuse of discretion only when the

court commits a "material error of law" or some sort of "meaningful 

error in judgment." United States v. Jordan, 813 F.3d 442, 445 

11 We also note that the parties reached a plea agreement, 

which was not breached. Although the district court did not 

analyze this factor, we have held that this fact, too, weighs 

against withdrawal. See Isom, 85 F.3d at 839. 
- 21 -

(1st Cir. 2016) (quoting Ruiz–Troche v. Pepsi Cola of P.R. Bottling 

Co., 161 F.3d 77, 83 (1st Cir. 1998)) (applying this standard with 

regard to the exclusion of expert testimony); see also United 

States v. Walker, 665 F.3d 212, 222-23 (1st Cir. 2011) (adopting 

a similar standard regarding motions for change of venue). Here, 

although the district court erred in weighing two of the relevant

factors, these errors, for the reasons we have explained, were not 

material errors of law or judgment that undermined the court's 

proper exercise of discretion in denying the motion to withdraw 

the guilty plea. Hence, we find no abuse of discretion, and a 

remand would serve no purpose. Cf. United States v. Gendraw, 337 

F.3d 70, 72-73 (1st Cir. 2003) (noting that we are not required to 

remand when the record contains no basis to support a different 

decision).

B. Subject Matter Jurisdiction

The parties agree that the appeal waiver provision in 

Fonseca's plea agreement does not bar his challenge to the district 

court's subject matter jurisdiction, an issue that may be raised 

at any time. See United States v. González, 311 F.3d 440, 442 

(1st Cir. 2002). We review the court's jurisdictional ruling de 

novo. See United States v. Vargas-De Jesús, 618 F.3d 59, 63 (1st 

Cir. 2010). 

Fonseca claims that the district court lacked subject 

matter jurisdiction over the conspiracy charge because he never 
- 22 -

entered the United States during the conspiracy and did not intend 

for his actions to have an impact in the United States. This 

argument has no merit. Federal district courts have jurisdiction 

over "all offenses against the laws of the United States." 18 

U.S.C. § 3231. "Thus, if an indictment or information alleges the 

violation of a crime set out 'in Title 18 or in one of the other 

statutes defining federal crimes,' that is the end of the 

jurisdictional inquiry" on a motion to dismiss. See United States

v. George, 676 F.3d 249, 259 (1st Cir. 2012) (quoting González, 

311 F.3d at 442); see also United States v. Frias, 521 F.3d 229, 

235-36 (2d Cir. 2008) (stating that an indictment that "plainly 

track[ed] the language of the statute and state[d] the time and 

place of the alleged [crime]" was sufficient to invoke the district 

court's jurisdiction). 

Fonseca does not contest that the indictment tracked the 

language of 21 U.S.C. §§ 959, 960, and 963, the statutes he was 

charged with violating. Nor does he raise any other challenge to 

the indictment itself. He instead disputes whether the government 

would ultimately be able to prove that he personally acted with 

the intent to cause any effects in the United States. This 

argument goes to the sufficiency of the evidence, not to whether 

the indictment -- which was facially valid -- should be dismissed. 

See United States v. Stewart, 744 F.3d 17, 22 (1st Cir. 2014) 

("[A]t the motion-to-dismiss stage, the allegations are taken as 
- 23 -

true, leaving for the jury the questions of the actual scope of 

the conspiratorial agreement . . . .").

Moreover, Fonseca concedes that a federal court has 

jurisdiction over a conspiracy, and every member of that 

conspiracy, if at least one overt act alleged to be in furtherance 

of the conspiracy was committed in the United States. See United 

States v. Inco Bank & Tr. Corp., 845 F.2d 919, 920-21 (11th Cir. 

1988) (per curiam); see also Rivera v. United States, 57 F.2d 816, 

819 (1st Cir. 1932) ("The place of the conspiracy is immaterial 

provided an overt act is committed within the jurisdiction of the 

court."). And he does not dispute that at least some of his codefendants committed overt acts in the United States that were 

alleged to be part of the conspiracy. Indeed, he stipulated in 

his plea agreement that his co-defendants transferred at least 

$40,000 either to or from the United States, with the intent to 

further a drug trafficking conspiracy.

Fonseca attempts to avoid this precedent by arguing that 

the acts of his co-conspirators were so insignificant and 

inconsequential that the exercise of jurisdiction over him would 

be unreasonable as a matter of law. In so arguing, Fonseca appears 

to invoke the territorial effects doctrine, which holds that "a 

sovereign only possesses jurisdiction to prosecute a crime where 

. . . the effect within the territory is substantial." United 
- 24 -

States v. Woodward, 149 F.3d 46, 66 (1st Cir. 1998) (internal 

quotation marks omitted). 

However, Fonseca provides no support for the proposition 

that the $40,000 in transferred funds referenced in his plea 

agreement -- the existence of which he has not disputed -- is 

somehow insignificant as a matter of law. Indeed, Fonseca cites 

no case in which any monetary amount was considered so 

insignificant as to render unreasonable the exercise of 

jurisdiction over a drug trafficking offense. And while he argues 

that the amount of money transferred by his co-conspirators was

insufficient to purchase a distribution-level quantity of cocaine, 

this argument could only conceivably relate to the scope of the 

conspiracy and whether these overt acts furthered the conspiracy's 

objectives. But, as we have discussed, these questions are 

inappropriate for resolution at the motion to dismiss stage. See

Stewart, 744 F.3d at 22. 

The district court properly denied Fonseca's motion to 

dismiss for lack of subject matter jurisdiction.

C. Personal Jurisdiction

Fonseca also argues that the district court should have 

divested itself of personal jurisdiction over him or, in the 

alternative, granted him a hearing to assess whether it should do 

so. This claim is based on his allegation that he was unlawfully 

transported to the United States to secure his appearance in this 
- 25 -

case. See United States v. Toscanino, 500 F.2d 267, 275 (2d Cir. 

1974) (holding that, in extreme circumstances, a district court 

should divest itself of jurisdiction over a criminal case if the 

defendant's presence was secured by the government's "deliberate, 

unnecessary and unreasonable invasion of the accused's 

constitutional rights").12

Fonseca's claim fails, however, because it is barred by 

the appeal waiver provision in his plea agreement. Indeed, Fonseca 

develops no serious argument otherwise. While he claims in his 

brief that the plea agreement "contains a waiver of appeal from 

the sentence, but not from the denial of the motions to dismiss 

for lack of in personam jurisdiction," this argument flies in the 

face of the agreement's plain text, which bars appeal of both his

"judgment and sentence." Fonseca's argument that the district 

court should have declined to exercise personal jurisdiction over 

him is necessarily a challenge to its "judgment" of guilt in this 

case. See United States v. Baramdyka, 95 F.3d 840, 843-44 (9th 

Cir. 1996) (holding that a valid waiver of the right to appeal the 

12 We note that the Second Circuit has since held that one of 

the holdings of Toscanino -- that noncitizens "may invoke the 

Fourth Amendment against searches conducted abroad by the U.S. 

government" -- was abrogated by the Supreme Court in United States

v. Verdugo-Urquidez, 494 U.S. 259 (1990). See In re Terrorist 

Bombings of U.S. Embassies in E. Afr., 552 F.3d 157, 167 n.5 (2d 

Cir. 2008). Because we conclude that the waiver of appeal 

provision in the plea agreement bars this claim, we need not delve 

further into the merits of Fonseca's reliance on Toscanino.
- 26 -

defendant's conviction and sentence applied to his challenge to

the district court's purported lack of personal jurisdiction over 

him). Fonseca's challenge to the district court's exercise of 

personal jurisdiction therefore falls within the scope of the 

appeal waiver provision.

Affirmed.