* Of the District of Maine, sitting by designation.

United States Court of Appeals

For the First Circuit

No. 02-2693

UNITED STATES OF AMERICA,

Appellee,

v.

VÍCTOR RODRÍGUEZ-LEÓN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Boudin, Chief Judge,

Torruella, Circuit Judge,

and Carter,* Senior District Judge.

Randy Olen, on brief, for appellant.

Thomas F. Klumper, Assistant United States Attorney, with whom

H.S. García, United States Attorney, and Nelson Pérez-Sosa,

Assistant United States Attorney, were on brief, for appellee.

March 17, 2005
1 Rodríguez was born on September 14, 1983, but the government's

brief indicates that he was seventeen and a half years old when he

was charged on September 19, 2001 and appellant's brief indicates

that he was nineteen years old at the time of his transfer hearing

on May 3, 2002. Regardless of these discrepancies, there appears

to be agreement that Rodríguez's active participation in the drug

organization occurred when he was between the ages of nine and

seventeen.

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TORRUELLA, Circuit Judge. Defendant-appellant Víctor

Rodríguez León ("Rodríguez") entered into a plea agreement on one

count of aiding and abetting in the possession with intent to

distribute and/or distribution of multiple kilograms of controlled

substances, in violation of 21 U.S.C. § 841(a), for his involvement

between the ages of nine and seventeen1 in a drug organization in

which both of his parents were also involved. He alleges that his

competence to plead guilty was questionable and that a magistrate

judge erroneously recommended that he be transferred to adult

status. Consequently, he argues, the district court erred in

refusing to continue sentencing proceedings in order to investigate

his apparent dissatisfaction with his guilty plea. Because we find

no abuse of discretion in the district court's acceptance of the

guilty plea, failure to permit its withdrawal, or refusal to

continue sentencing, the decision below is affirmed.

I. Background

On September 19, 2001, Rodríguez was charged as a

juvenile in a sealed criminal complaint for conspiracy to possess

with intent to distribute narcotics, in violation of 21 U.S.C.
2 The factors are "[1] the age and social background of the

juvenile; [2] the nature of the alleged offense; [3] the extent and

nature of the juvenile's prior delinquency record; [4] the

juvenile's present intellectual development and psychological

maturity; [5] the nature of past treatment efforts and the

juvenile's response to such efforts; [and 6] the availability of

programs designed to treat the juvenile's behavioral problems." 18

U.S.C. 5032. The guiding principle in weighing these factors is

whether "transfer would be in the interest of justice." Id.

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§ 846. On September 21, 2001, Rodríguez plead not guilty to the

charge and was placed in pretrial detention. On December 4, 2001,

the government filed a Motion to Transfer to Adult Status, and

amended the charge to aiding and abetting in the possession with

intent to distribute and/or distribution of multiple kilograms of

controlled substances, in violation of 21 U.S.C. § 841(a).

An evidentiary hearing was held before Magistrate Judge

Aida M. Delgado Colón on May 3, 2001. At the hearing, Dr. Luis

Francisco Umpierre, a clinical psychologist, and Dr. Maria T.

Margarida Juliá, a clinical neuropsychologist, testified on behalf

of the Government and Rodríguez, respectively. Dr. Umpierre

determined that Rodríguez has an IQ of 62, corresponding to mild

mental retardation, and both experts found evidence of cognitive

dysfunction or brain damage. On June 13, 2002, the magistrate

judge issued a detailed Report and Recommendation. In the Report,

she made specific findings on each of the six factors that 18

U.S.C. § 5032 directs judicial officers to consider in deciding on

transfer to adult status.2 She found that Rodríguez's prior
3 Between December 2000 and February 2001, Rodríguez was found

guilty of possession of cocaine and six counts of possession of a

firearm; arrested on charges of attempted murder, first degree

murder, conspiracy to commit murder, and additional weapons

violations; and charged with four counts of illegal appropriation

of a vehicle. He was charged as an adult in the District of Puerto

Rico in these cases. Additionally, Rodríguez was charged in

commonwealth court with possession of drug paraphernalia and 135

bags of cocaine intended for distribution. Commonwealth

proceedings to transfer Rodríguez to adult status on these charges

were underway at the time the magistrate judge rendered her Report

and Recommendation.

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delinquency record,3 poor response to probationary supervision and

corresponding need for an institutional rehabilitation program, and

mental limitations on judgment and emotional control, in addition

to the lack of evidence of the existence of adequate non-penal

rehabilitation programs to suit Rodríguez's needs, all weighed in

favor of transfer to adult status. In addition, the magistrate

judge found that the nature of the alleged offense -- including

reliable government evidence of Rodríguez's participation in

murders and "hunting" rival drug gang members -- was sufficient,

standing alone, to warrant transfer to adult status.

The magistrate judge also made findings as to Rodríguez's

competency to stand trial. She determined, on the basis of the

psychological reports, that although his mental and judgmental

capacities were limited, Rodríguez was capable of distinguishing

right from wrong, understanding if one penalty was harsher than

another, understanding the implications of an alibi defense and

assisting his counsel by providing facts and information in support
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thereof. Thus, she concluded, he was competent to stand trial and

assist defense counsel.

Rodríguez initially filed a sealed objection to the

Report and Recommendation, but just over a month later, he

submitted a motion to proceed against him as an adult. The motion

states that "upon advise [sic] of counsel, [Rodríguez] voluntarily

waives all further transfer procedures in this case [and] requests

to be proceeded against as an adult for purposes of criminal

prosecution in this case." The same day, he waived indictment and

plead guilty to one count of distribution of various narcotic

drugs, in violation of 21 U.S.C. § 841(a).

At the change of plea hearing before district court judge

Juan M. Pérez Giménez, Rodríguez's counsel orally withdrew his

opposition to the Report and Recommendation. After questioning

Rodríguez directly, the district judge accepted the Report and

Recommendation and waiver of transfer proceedings, found Rodríguez

competent to waive indictment, and accepted his guilty plea.

A sentencing hearing was held on November 22, 2002. At

the hearing, the following exchange occurred between the district

judge and Rodríguez's counsel:

MR. ANGLADA: Your Honor, let me put something on the

record before we start. I am ready for sentence and we

have reviewed the PSI with the client. The client would

like the sentence to be continued. One of the reasons is

that his mother was already sentenced and his father is

to be sentenced at an adjacent court on December 10th.

We are within the thirty-five days. I am ready but I
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have the duty and the loyalty to my client to inform the

court that he would prefer sentencing to be continued.

THE COURT: What is the reason?

MR. ANGLADA: The reason, Your Honor, is that he would

prefer sentence not to be imposed in accordance with the

written plea agreement. His father is to be sentenced by

the Honorable Court if the plea is accepted by that

neighboring court for a prison term of eighteen and a

half years and, of course, I am bound by the plea

agreement before this court and this plea calls for the

imposition of a sentence of thirty seven points with a

criminal history of two for the imposition of a sentence

of 240 months. So, I am ready, he would -

THE COURT: But the fact that his father may be sentenced

before or after he is sentenced, how does that affect his

own sentence?

MR. ANGLADA: Your Honor, in my opinion I don't see any

reasoning other than the generic attitude of his father

now that our plea agreement is not a satisfactory plea

agreement for his father and, therefore, for him,

remember that he is now 18 or 19 and his IQ is one of 62.

Now he is with his father at MDC and now he is again

under the influence of his father.

....

THE COURT: Again my question is, do you think it would be

beneficial for him to continue now under his father's

supervision or if I sentence him today ask the Marshals

to transport him out of Puerto Rico, so he is not under

that influence, which apparently is a very bad influence.

MR. ANGLADA: Well, Your Honor, as an attorney, as a

father, I have an opinion. I don't want to further

jeopardize my relationship to him, so, you know, I don't

know, if you are going to accept my words as an answer.

....

THE COURT: . . . . [W]e will proceed to sentence the

defendant today. I think that your actions in this case

were professionally carried out. You obtained the best

plea agreement you could with the government under the

circumstances and I would rather have him be sentenced
4 Were we to hold otherwise, the district court's failure to

permit a change of plea would be reviewed under the more stringent

plain error standard. See United States v. Olano, 507 U.S. 725,

732 (1993); cf. United States v. Browne, 318 F.3d 261, 264-65 (1st

Cir. 2003) (noting that ambiguous request for evidentiary hearing

on change of plea motion would be reviewed for plain error if court

did not assume request had been made).

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today than leave the door open that might create problems

between yourself and your client, which apparently they

have been a very fruitful relationship.

Sentencing Transcript at 3-6 (emphasis supplied). Without directly

asking Rodríguez to clarify his reasons for wanting a continuance,

Judge Pérez Giménez sentenced him to 235 months in prison, eight

years supervised release, and a $100 assessment.

Rodríguez appealed, claiming that his counsel's remarks

at sentencing put the court on notice that he was challenging the

plea agreement and sought to withdraw his plea. Accordingly,

Rodríguez argues that the court erred in failing to further

investigate whether he was entitled to a change of plea, and in

denying the requested continuance.

II. Analysis

A. Change of plea

For purposes of our analysis, we will assume

arguendo that counsel's statements amounted to a request to

withdraw Rodríguez's guilty plea.4 The district court's failure to

permit withdrawal, or to inquire further into the basis for the

request are therefore reviewed for abuse of discretion. See United

States v. Isom, 85 F.3d 831, 834 (1996). A defendant does not have
5 The provisions governing withdrawal of a guilty plea were

altered and moved to Rule 11(d) by amendments that went into effect

December 1, 2002. As Rodríguez's request was made prior to this

date, our analysis is under the standards applicable to the earlier

Rule 32(e). See United States v. Cheal, 389 F.3d 35, 41 n.6 (1st

Cir. 2004).

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an absolute right to withdraw a guilty plea, but rather must show

a "fair and just reason" therefor. Fed. R. Crim. Proc. 32(e);5

Isom, 85 F.3d at 834. The burden of persuading the court that such

a reason exists is on the defendant. See, e.g., United States v.

Moore, 362 F.3d 129, 134 (1st Cir. 2004); cf. Browne, 318 F.3d at

265 (holding that court need hear additional evidence in support of

a change of plea only if there was an adequate tender by

defendant). Rodríguez has offered no authority to support his

contention that, despite this burden, the district court was under

an affirmative obligation to inquire further into his reasons for

dissatisfaction with his plea.

We turn now to an evaluation of the reasons offered by

defense counsel. We have identified several factors that must be

considered in determining whether a defendant has shown a "fair and

just reason" for withdrawing a plea,

the most significant of which is whether the

plea was knowing, voluntary and intelligent

within the meaning of [Federal Rule of

Criminal Procedure 11]. The other factors

include 1) the force and plausibility of the

proferred reason; 2) the timing of the

request; 3) whether the defendant has asserted

his legal innocence; and 4) whether the

parties had reached a plea agreement.
6 Given that defense counsel expressly withdrew opposition to the

magistrate judge's Report and Recommendation -- which contained a

finding of competence to stand trial -- and read testimony from the

psychological experts "where competence is highlighted" at the

change of plea hearing, it could very likely be determined that the

issue of competence was waived. See United States v. Rodríguez,

311 F.3d 435, 437 (1st Cir. 2002) ("A party waives a right when he

intentionally relinquishes or abandons it. . . . [A] waived issue

ordinarily cannot be resurrected on appeal . . . .") (internal

citations omitted). Nevertheless, defense counsel's assertions

were made in the context of addressing Rodríguez's withdrawal of

his objection to the magistrate judge's recommendation of transfer

to adult status, and the Report and Recommendation's findings

concerning competency were not explicitly addressed. Accordingly,

and in view of the concerns generated by Rodríguez's age and mental

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Isom, 85 F.3d at 834 (quoting United States v. Cotal-Crespo, 47

F.3d 1, 3-4 (1st Cir. 1995) (internal citations omitted)). If

these factors weigh in favor of permitting a change of plea, we

must then consider the prejudicial effect such a change would have

on the prosecution. Id. at 834-35.

1. Rule 11

Rodríguez argues for the first time on appeal that he

lacked competence to plead guilty, thus precluding a knowing,

voluntary and intelligent plea. Competence to plead guilty is

determined according to the same criteria as competence to stand

trial: the defendant must "understand[] the proceedings against

him and ha[ve] sufficient present ability to consult with his

lawyer with a reasonable degree of rational understanding." United

States v. Lebrón, 76 F.3d 29, 31 (1st Cir. 1996) (citing Dusky v.

United States, 362 U.S. 402 (1960)). In the absence of objection

below, we review for plain error.6 Olano, 507 U.S. at 732.
limitations, we will assume for the sake of analysis that the issue

of competence has merely been forfeited, not waived.

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In support of the argument that he lacked competence to

plead guilty, Rodríguez relies on the findings of the expert

witnesses Drs. Umpierre and Margarida. Among these findings are

that he had an IQ of 62, within the range of mild mental

retardation, and that he suffers from brain dysfunction, which

affects in particular his memory and ability to process language.

Rodríguez also cites Dr. Umpierre's testimony at his transfer

hearing that "[h]e will have problems dealing with information,

analyzing it and responding in a very more mature or abstract way

of responding." Transfer Hearing Transcript at 48. Dr. Margarida,

the defense expert, found in her report that Rodríguez's

"understanding of the legal process and functions of the court

officials was at best simplistic and primitive." At the transfer

hearing, she also testified that Rodríguez would have difficulty

assisting in his defense, that his attorney would have to

diligently check to ensure he was understanding the proceedings,

and that he might be inclined to give faulty answers when

questioned in order to appease the questioner or to mislead the

court in order to preserve his own self-interest.

In her Report and Recommendation, Magistrate Judge

Delgado reviewed the findings of both experts in evaluating

Rodríguez's intellectual capacity, a component of the transfer
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decision. In a separate section of the report, she also determined

that Rodríguez was competent to stand trial. This determination

was made on the basis of findings from both psychologists. She

noted that Dr. Umpierre determined that Rodríguez's mental status

was within normal limits, and that he was not psychotic. Report

and Recommendation at 22. The magistrate judge discussed

Dr. Margarida's findings that Rodríguez could offer only a

simplistic description of court proceedings, but noted that he

nonetheless could understand the roles of court proceedings and

officials. Id. When directly asked about competency, the

magistrate judge indicated, Dr. Margarida had stated that there are

different levels of competency and that Rodríguez was capable of

remembering general details and narrating facts. Id. Finally,

the magistrate judge reported that "it is understood [Rodríguez]

will be able to communicate with counsel. For example, it is

considered that if explained to him, [Rodríguez] may understand the

implications of an 'alibi' defense and will be able to provide

facts and information in support." Id. at 23.

Prior to discussing Rodríguez's guilty plea at the change

of plea hearing, the district judge inquired about the defense's

reasons for withdrawing objection to the Report and Recommendation,

focusing primarily on the recommendation of transfer to adult

status. In response, defense counsel reviewed portions of the

evidence from both psychological experts "where competence is
7 When questioned at the evidentiary hearing before the magistrate

judge on whether Rodríguez was competent to stand trial,

Dr. Margarida stated, "Yes, again it depends on, you know, a legal

term or what. I guess . . . I agree with Dr. Umpierre that he will

be able . . . I think he understands sort of the basic notions and

that . . . and he will remember general details . . . ."

Evidentiary Hearing Transcript at 98.

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highlighted." Change of Plea Transcript at 7. In particular,

counsel noted that the prosecution expert had found Rodríguez to be

in general contact with reality; responsive in a logical and

coherent manner; capable of understanding the purpose of his

psychological evaluation; not delusional or psychotic; articulate

in an immature way; able to remember, interpret information

coherently, and carry out general care; that he understood the

nature of the accusations against him and the potential

consequences of a long prison sentence; and that he had a general

understanding of the court, defense, prosecution and judge,

although he did not understand the role of the jury. Defense

counsel indicated that the defense expert had agreed with the

prosecution's expert's findings.7 Id. at 6-7.

The district judge then engaged in dialogue with

Rodríguez, who affirmed that he understood his attorney's

explanations, the plea agreement, the potential length of his

sentence, and the potential consequences of opting to go to trial

instead. Id. at 10-13. The district judge determined that:

[t]here is a finding that based on the

assessment of both experts in psychology that

they consider that Víctor Rodríguez is
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competent to stand trial and assist defense

counsel and that although not psychologically

or financial capable, not being independent,

within the drug organization he acted as if he

were an adult of greater age and experience.

. . . [H]aving heard from counsel and the

defendant and having reviewed the Magistrate’s

report and recommendation, the court will

accept the same and will accept the waiver of

the defendant for any further transfer

proceedings and the court hereby orders that

the defendant be processed, continues to be

processed in this court as an adult.

Id. at 15-16. The district judge then questioned Rodríguez in

detail about his understanding of the implications of waiving grand

jury indictment and deemed him competent to do so, finding that:

[h]e understands the explanations made by his

attorney as to the waiver of indictment by

grand jury and also from my questioning here

in court, I can see that he is reacting

positive[ly] to my questions and it appears to

me that he is understanding the right that he

has to be indicted by a grand jury and the

results of waiving that indictment by a grand

jury.

Id. at 18.

The district judge considered the findings of both

psychological experts, the detailed findings and recommendation of

the magistrate judge regarding competence, and his own direct

perception of the content and manner of Rodríguez's responses to

questioning. While the evidence in favor of competence was not

overwhelming, the district court did not plainly err in finding

Rodríguez competent.

Beyond competence, three core concerns guide our review
8 Rodríguez's responses most often came in the form of one-word

answers, but Judge Pérez Giménez appears to have been satisfied

that the "yes" or "no" answers were not automatic, but rather based

on an understanding of the substance of the questions. In making

these determinations, the district judge had the benefit of

directly perceiving Rodríguez's demeanor while responding. Cf.

United States v. Jiménez-Villasenor, 270 F.3d 554, 560 (8th Cir.

2001) (noting district court's opportunity to observe demeanor of

defendant who had ingested sedatives in finding no clear error in

determination of competence). Furthermore, the one-word answers

were responsive to yes-or-no questions. In this case, we will not

second-guess the district judge's acceptance of Rodríguez's oneword responses.

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of whether Rodríguez's plea met the requirements of Rule 11: (1)

absence of coercion, (2) understanding of the charges, and (3)

knowledge of the consequences of the plea. Isom, 85 F.3d at 835.

Because no objection was raised below, we review the court's

acceptance of Rodríguez's plea for plain error. See Olano, 507

U.S. at 732; United States v. Mescual-Cruz, 387 F.3d 1, 7 (1st Cir.

2004). We do so with awareness of the concern that Rodríguez's age

and significant mental limitations could affect the knowing,

voluntary and intelligent nature of his plea. See United States v.

Martínez-Martínez, 69 F.3d 1215, 1220 (1st Cir. 1995) ("Whether the

explanation of the charges and determination of the defendant's

understanding are sufficient for Rule 11 purposes varies depending

upon . . . the capacity of the defendant, and the attendant

circumstances.") (internal quotation marks omitted).

During a thorough plea colloquy, the district judge made

direct inquiries sufficient to establish that all three core Rule

11 concerns had been met. Rodríguez affirmed8 that he was not
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threatened or forced to waive indictment, Change of Plea Transcript

at 16, and that he was not threatened, forced, or enticed to plead

guilty. Id. at 23, 28. He affirmed that he understood the charges

against him, as detailed by the district judge, Id. at 18-19,

admitted to guilt on those charges, id. at 29, 32, and affirmed

that his plea was made freely and voluntarily because he was, in

fact, guilty. Id. at 28. Rodríguez indicated that he knew the

potential sentence to be ten years to life. Id. at 22. Judge

Pérez Giménez went through the specifics of the plea agreement, and

asked questions to ensure that Rodríguez understood the recommended

sentence and that the judge would be free to impose a higher

sentence if he so chose. Id. at 24-28. Judge Pérez Giménez also

questioned and received affirmation from Rodríguez that he

understood the terms of supervised release after the sentence was

served, id., and that parole was unavailable, id. at 28. Judge

Pérez Giménez also delved further into Rodríguez's apparent

reluctance to accept the plea after Rodríguez indicated that he had

spoken to his mother and other relatives, who felt, as he did, that

the recommended 240-month sentence was too long. Id. at 10. The

district judge asked why, in that case, he was accepting the plea

agreement, and Rodríguez indicated that he did so because he felt

he could not get a more favorable agreement. Id. at 10-13.

The colloquy summarized above was comprehensive, and the

district judge adequately investigated the knowing, voluntary, and
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intelligent nature of Rodríguez's plea. Thus, we find no plain

error.

2. Other factors

Beyond compliance with Rule 11, other factors to be

considered in determining whether a defendant has offered a "fair

and just" reason for withdrawing a guilty plea are "1) the force

and plausibility of the proferred reason; 2) the timing of the

request; 3) whether the defendant has asserted his legal innocence;

and 4) whether the parties had reached a plea agreement." Isom, 85

F.3d at 834 (quoting Cotal-Crespo, 47 F.3d at 3-4 (internal

citations omitted)). Each of these factors weighs against plea

withdrawal in the instant case.

When asked why his client wished not to be sentenced

according to the plea agreement, defense counsel stated, "I don't

see any reasoning other than the generic attitude of his father now

that our plea agreement is not a satisfactory plea agreement for

his father [who had reached a plea agreement on related drug

charges for a sentence of 18.5 years] and, therefore, for him

. . . ." Sentencing Transcript at 4. Neither Rodríguez's, nor his

father's, dissatisfaction with the length of the sentence imposed

by the plea agreement required the district court to permit a

change of plea. See Miranda-González v. United States, 181 F.3d

164, 165 (1st Cir. 1999) ("A guilty plea will not be set aside

where a defendant has had a change of heart simply because . . . he
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is not satisfied with the sentence he has received."); see also

United States v. Elias, 937 F.2d 1514, 1520 (10th Cir. 1991) ("A

defendant's dissatisfaction with the length of his sentence

generally is insufficient reason to withdraw a plea."). The timing

of Rodríguez's request, which occurred at the sentencing hearing

over two months after entering his guilty plea, also calls the

fairness and justice of permitting a change into question. See,

e.g., Isom, 85 F.3d at 838 ("We have repeatedly noted that the more

a request is delayed -- even if made before sentence is imposed --

the more we will regard it with disfavor."). No reason has been

offered for this delay, nor did any change of circumstances occur

in the interval to support a change of plea. Rodríguez has not

asserted his innocence of the charged offenses, and the guilty plea

was properly accepted as part of a voluntary plea agreement. Thus,

all four of the Isom factors weigh against permitting a change of

plea.

Nevertheless, Rodríguez argues that an additional factor

should be weighed in favor of permitting a change of plea: the

magistrate judge's recommendation that he be transferred to adult

status was, he now argues, erroneous. Although Rodríguez initially

filed an objection to the magistrate's Report and Recommendation,

his counsel explicitly withdrew the objection, see Change of Plea

Transcript at 4, and submitted a motion to the district court for

Rodríguez to be proceeded against as an adult. A party waives a
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right when he intentionally relinquishes or abandons it, and a

waived issue ordinarily cannot be raised on appeal. See United

States v. Rodríguez, 311 F.3d 435, 437 (1st Cir. 2002); United

States v. Mitchell, 85 F.3d 800, 807 (1st Cir. 1996) ("[W]here

there was forfeiture, we apply a plain error analysis; where there

was waiver, we do not.") (citing United States v. Lakich, 23 F.3d

1203, 1207 (7th Cir. 1994) (noting that "if there has been a valid

waiver, there is no 'error' for us to correct"). Accordingly, we

will not evaluate the merits of the decision to transfer Rodríguez

to adult status. The issue was waived, and may not be revived

collaterally during our review of Rodríguez's wish to change his

plea.

Rodríguez admitted to the factual bases of the charged

offenses and affirmed that he had knowingly, intelligently, and

voluntarily entered into a plea agreement with the government. The

district court did not plainly err in finding Rodríguez competent

to enter the guilty plea, nor in accepting the plea within the

strictures of Rule 11. Almost three months later, with no

explanation for the delay, Rodríguez offered only his and his

father's dissatisfaction with the sentence as a reason for changing

his plea. Even considering Rodríguez's impaired mental capacity,

we cannot find that the district court abused its discretion by

declining to permit a change of plea under these circumstances.
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B. Motion for continuance

Rodríguez also posits that the district court erred in

denying his motion to continue sentencing, arguing on appeal that

the district court ought to have granted the continuance in order

to more fully explore Rodríguez's reasons for dissatisfaction with

his plea. As we determined above, the burden of showing a valid

reason for seeking to withdraw the guilty plea was on the defense,

and the district judge was under no obligation to investigate

further.

"We grant broad discretion to a trial court to decide a

continuance motion and will only find abuse of that discretion with

a showing that the court exhibited an unreasonable and arbitrary

insistence upon expeditiousness in the face of a justifiable

request for delay." United States v. Rodríguez-Marrero, 390 F.3d

1, 21-22 (1st Cir. 2004) (internal quotation marks omitted). On

review, we consider, inter alia, "the delay entailed, the reasons

for the request, whether the moving party is at fault, any

inconvenience to the court and litigants, and whether the denial of

a continuance unfairly would prejudice the moving party." Bogosian

v. Woloohojian Realty Corp., 323 F.3d 55, 63 (1st Cir. 2003).

The reasons offered for continuance were the impending

sentencing of Rodríguez's father, along with both Rodríguez's and

his father's dissatisfaction with the length of Rodríguez's

sentence. As discussed above, dissatisfaction with the length of
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a sentence is insufficient to require a change of plea. Moreover,

even if sentencing had been postponed until after Rodríguez's

father received the expected shorter sentence on related charges,

this would not have entitled Rodríguez to change his plea. See

United States v. Santiago, 229 F.3d 313, 317 (1st Cir. 2000)

(finding that the fact that defendant's co-conspirators had

received lesser sentences lacked merit as a reason for permitting

a change of plea). Furthermore, after questioning defense counsel

about the reason for seeking continuance at length, the district

judge concluded that the plea agreement was the best Rodríguez

could obtain and that continuing sentencing would have had the

negative effect of returning Rodríguez to the same detention

facility as his father, who exerted a negative influence on him.

Thus, denial of the request did not cause unfair prejudice to

Rodríguez, whereas its grant would have inconvenienced the court

and litigants. The district judge's decision to deny a continuance

is not the kind of manifest abuse of discretion that would merit

reversal by this court.

III. Conclusion

For the reasons stated above, the decision of the

district court is affirmed.