United States Court of Appeals

For the First Circuit

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No. 99-2343

UNITED STATES OF AMERICA,

Appellee,

v.

JAVIER SANTIAGO,

Defendant, Appellant.

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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

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Before

Torruella, Chief Judge,

Boudin and Lynch, Circuit Judges

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Teodor Mendez Lebron, for appellant.

Guillermo Gil, United States Attorney, with whom Jorge E. VegaPacheco and Michelle Morales, Assistant United States Attorneys, were

on brief, for appellee.

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October 6, 2000
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LYNCH, Circuit Judge. In this unusual case, a defendant who

received the benefit of his plea bargain -- a particular sentence --

but deprived the government of a portion of its benefit -- a safety

valve debriefing -- now seeks to overturn the district court's refusal

to let him withdraw his plea. He tried to withdraw his plea when he

learned that his co-defendants in this drug conspiracy, whom he

considers more culpable, received lesser sentences than his. He says

that he should have been allowed to withdraw his plea, from which he

benefitted, because he did not know that he was supposed to cooperate

with the government. We find that the requirements of Rule 11, Fed. R.

Crim. P., have been met and affirm the district court's ruling that

Santiago failed to show a "fair and just reason" to withdraw his plea.

While other aspects of the procedures followed here are troubling,

defendant waived any attacks on the procedure and there was, in any

event, no plain error. 

I.

On February 5, 1997, Santiago was indicted on a count of

narcotics conspiracy in violation of 21 U.S.C. § 846 and two counts of

predicate acts under § 841(a)(1). Over the course of three years,

Santiago has been represented by three different court-appointed

attorneys. During Santiago's representation by his first attorney, the

parties entered into a binding Rule 11(e)(1)(C) plea agreement under

which Santiago would plead guilty to Count 18, possession with intent

to distribute 100 kilograms of cocaine, in exchange for a sentence of

eighty-seven months. This was thirty-three months less than the
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statutory minimum sentence for the offense of 120 months. The

agreement was conditioned on Santiago's meeting the 'safety valve'

criteria set forth in U.S.S.G. § 5C1.2.

On December 18, 1997, the district court held a change of

plea hearing. After conducting a plea colloquy with Santiago to ensure

that his plea was knowing and voluntary, the court accepted Santiago's

plea of guilty to Count 18, deferring acceptance of the plea agreement

until the court could determine whether Santiago had complied with the

safety valve criteria.

Over the next several months, the government sought to

debrief Santiago pursuant to his plea agreement, but to no avail.

Santiago's sentencing hearing was reset several times, and in August,

1998, Santiago's lawyer both filed what was styled an informative

motion that Santiago was contemplating withdrawing his guilty plea and

sought leave to withdraw as counsel. On November 6, 1998, the

government notified the court that Santiago had failed to comply with

the safety valve provision of his plea agreement. The government

agreed to try once more to debrief Santiago and report the results to

the court. New counsel was appointed for Santiago on November 17,

1998, and sentencing was set for February 11, 1999. Santiago did not

file any further motions regarding withdrawing his guilty plea. 

On February 11, 1999, finding that Santiago had failed to

comply with the safety valve criteria in the second debriefing attempt
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by the government, the court issued an order rejecting the specific

sentence plea, observing that it "cannot sentence him below the

statutory minimum term of 120 months." The court vacated the

sentencing hearing and stated that Santiago "is allowed to withdraw his

plea of guilty." Santiago's trial initially was set for April 20,

1999, and on Santiago's motion, was reset for May 14.

Thereafter, the court issued a number of orders in

anticipation of Santiago's upcoming jury trial. At the same time,

Santiago and his second lawyer sought to part ways, and on April 25,

1999, Santiago sent a pro se motion for appointment of new counsel,

which was received by the court on April 28, 1999.

Meanwhile, on April 26, 1999, the government filed under seal

a motion for the court to sentence Santiago in accordance with his plea

agreement, even though he had not complied with the safety valve. The

government said it was willing to execute the bargain anyway because

Santiago's role was "that of a courier, with limited knowledge of the

overall operations of the conspiracy" and because the government had

obtained the information it sought, "though not directly provided by

the Defendant." The government contended that "there is no reason for

the Defendant to withdraw or to be permitted to withdraw from the plea

agreement," arguing that the eighty-seven month sentence was "just and

appropriate" and that "Defendant has already knowingly and willfully

entered a guilty plea to 87 months."
1 Santiago entered a plea of guilty only once, on December 18,

1997. Contrary to the government's assertion in its brief, Santiago

did not plead guilty a second time on April 30, 1999. In response to

this court's order requiring the parties to clarify what happened, the

government equivocates but implicitly concedes that its contention that

Santiago actually pled guilty for a second time was inaccurate. We

expect greater candor and care from counsel.

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Four days after the government's motion was filed, on April

30, 1999, according to an unelaborated docket entry, the court

"accepted" Santiago's guilty plea (despite having allowed him to

withdraw his plea) and indicated its intent to sentence him in

accordance with his plea agreement.1 Santiago's second lawyer was

permitted to withdraw on June 2, 1999, and new counsel was appointed

and made his appearance on June 4, 1999. Once again, Santiago's

sentencing hearing was postponed several times, and was finally reset

for August 19, 1999.

On the day of his sentencing hearing, Santiago notified the

district court of his desire to withdraw his plea of guilty. The court

granted Santiago until September 30, 1999 to file a motion for

withdrawal of his plea. After Santiago filed his motion and the

government responded, the court denied Santiago's motion on October 22,

1999. On November 8, 1999, the court sentenced Santiago to 87 months'

imprisonment.

II.

Santiago appeals the district court's denial of his motion
2 Fed. R. Crim. P. 32(d) states in pertinent part: "If a motion

to withdraw a plea of guilty . . . is made before sentence is imposed,

the court may permit the plea to be withdrawn if the defendant shows

any fair and just reason."

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to withdraw his guilty plea. His primary argument is that his plea

was not a knowing and intelligent one as required by Rule 11 because

he did not understand what the safety valve provisions required. 

Santiago also argues that the district court improperly modified his

plea agreement by accepting his guilty plea even after it determined

that he did not comply with the safety valve provision. The

government contends that Santiago is only now seeking to withdraw his

plea because his co-conspirators received lower sentences than he

did. 

The parties have framed the issues in a particular way and

we address those first. We review for abuse of discretion the

district court's finding that Santiago failed to show a "fair and

just reason" for withdrawing his plea of guilty. See U.S. v. CotalCrespo, 47 F.3d 1, 5 (1st Cir.), cert denied, 516 U.S. 827 (1995);

see also Fed. R. Crim. P. 32(d).2

A defendant has no absolute right to withdraw a guilty

plea prior to sentencing; rather, he must demonstrate a "fair and

just reason" for seeking to withdraw his plea. See U.S. v. Gonzalez,

202 F.3d 20, 23 (1st Cir. 2000). In its determination of whether a

defendant has shown a sufficient reason for withdrawing his guilty
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plea before sentencing, the court focuses primarily on whether the

plea was voluntary, intelligent and knowing within the meaning of the

rule governing plea colloquies. See id. at 23. In addition, the

district court must consider several other factors: "(1) the

plausibility and weight of the proffered reason; (2) the timing of

the request; (3) whether the defendant asserted legal innocence; and

(4) whether the parties had reached, or breached, a plea agreement." 

U.S. v. Marrero-Rivera, 124 F.3d 342, 347 (1st Cir. 1997). The court

must also consider "any demonstrable prejudice to the government were

the defendant allowed to withdraw the plea." Id. at 347. 

A reviewing court should set aside a guilty plea if the

district court commits an error that "implicate[s] the core concerns

of Rule 11, which include the defendant's knowledge of the

consequences of the guilty plea." U.S. v. Santo, No. 99-1899, --

F.3d --, 2000 WL 1285391, at *7 (1st Cir. Sept. 15, 2000) (internal

quotation marks omitted). Here, the district court complied with the

provisions of Rule 11. Before accepting a plea of guilty, the court

must address the defendant in open court and ensure that the

defendant understands the consequences of pleading guilty, and under

Rule 11(d), the court must determine that the plea is voluntary. 

Further, where there is a plea agreement involved, the court must

require disclosure of the agreement before accepting or rejecting it. 
3 Santiago has failed to provide transcripts of the August 11,

1998 and February 11, 1999 hearings. The burden of omission falls on

him and there is no basis to think that the point was made orally.

Even if it were, it would not alter the outcome.

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Santiago's primary argument is that he did not understand

the consequences of the plea agreement -- in particular, that he

would have to have a safety valve debriefing. At the change of plea

hearing on December 18, 1997, the court specifically pointed out the

safety valve provision of the agreement and asked Santiago if he

understood. He said that he did. When at the February 11, 1999

sentencing hearing the court rejected the plea agreement, it did so

on the basis of the government's argument that defendant had not

complied with his obligations, not that he had not understood his

obligations. There is no filing3 from the defendant saying he did

not understand his obligations under the plea agreement's safety

valve provision until the September 30, 1999 motion to withdraw his

plea. Indeed, after first counsel notified the court on August 10,

1998 that Santiago might want to withdraw his plea at the August 11

sentencing hearing, Santiago apparently did not do so and was ordered

by the court to go through a second safety valve debriefing. It was

only after he failed to provide adequate information the second time

that the government sought to negate the agreement. This sequence

makes implausible Santiago's argument that he did not understand his

obligations under the agreement.
4 The co-defendants' sentences ranged from a low of 30 months

for a minor participant, to 60 months for a supervisor. The leader of

the conspiracy was sentenced to 121 months. [Defendant's brief at 10].

These defendants pled guilty early, unlike Santiago.

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The remaining factors in the Rule 32(d) test also support

the district court's opinion. First, Santiago's reasons for

withdrawing his plea lack merit, for the reasons we discussed. 

Santiago also complains that his co-conspirators received lower

sentences4 than he did, but a defendant is not entitled to a more

lenient sentence based solely on a "perceived need to equalize

sentencing outcomes for similarly situated co-defendants." U.S. v.

Wogan, 938 F.2d 1446, 1448 (1st Cir.), cert denied, 502 U.S. 969

(1991).

Next, the timing of Santiago's motion is well-beyond that

which we have considered legitimate in other cases; indeed, "the

longer a defendant waits before moving to withdraw his plea, the more

potency his motion must have in order to gain favorable

consideration." U.S. v. Gonzalez-Vazquez, 34 F.3d 19, 23 (1st Cir.

1994) (citations omitted) (rejecting withdrawal in part due to four

month delay). There are several dates we could use to measure. Even

if we take the date most favorable to Santiago, the August 28, 1998

notice from his attorney that he was contemplating withdrawing his

plea, it was not timely. Here, Santiago waited about nine months

after he entered a guilty plea in 1997 before even suggesting that he
5 Santiago did, obliquely, claim innocence in his reply to the

government's supplemental brief, but otherwise has not asserted actual

innocence. Indeed, Santiago's argument in support of his motion to

withdraw his guilty plea -- that he was only a minor participant in the

conspiracy but received a higher sentence than his co-defendants --

contradicts any assertion of actual innocence.

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might withdraw it. The nine month lapse between his guilty plea and

his notice of contemplated withdrawal of it occurred on the watch of

his first attorney. Third, Santiago has not asserted actual

innocence. Cf. U.S. v. Ramos, 810 F.2d 308, 312 (1st Cir. 1983).5

As to the final factor, the government is silent on whether any

prejudice would result from withdrawal. On the arguments presented,

affirmance is required.

What is more troubling about this case is the posture in

which it comes to us. It is fair to read the record as showing that

the district court permitted Santiago to withdraw his plea on

February 11, 1999 (because the agreement had not been complied with),

and the court set the case for trial. On April 26, 1999, the

government asked the court to reinstate the plea and the agreement,

and mailed the notice to Santiago's counsel. On April 25, 1999,

Santiago had mailed a pro se motion seeking appointment of new

counsel, which was received by the court on April 28, 1999. On April

30, 1999, without further notice to Santiago or an opportunity for

him to be heard, the court reversed positions and "accepted" the

plea, which it previously had treated as withdrawn. 
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In another case involving a different underlying issue,

such a sequence might lead us to reverse. We do not here for two

reasons. The first is that Santiago has never argued, to the

district court, or to us, that this procedure is inappropriate. It

would, then, be easy to simply view this issue as being waived. See

United States v. Gandia-Maysonet, No. 98-1144, 2000 WL 1273845, at *4

(1st Cir. Sept. 13, 2000) (discussing "raise or waive" principle in

the context of Rule 11 cases). There is an important point

underneath the doctrine of waiver. If Santiago viewed that his plea

had been withdrawn as of February 11, 1999 and there was no basis to

later "accept" it, he should have raised the point with the district

court. He never did, and so the district court was denied any

opportunity to cure any procedural problems. Nor did he seek to

withdraw the plea at all until five months after the April 30

"acceptance" of his plea. And even then he did not raise these

procedural objections. Thus, while he literally filed a motion to

withdraw his plea, it was on the grounds we discussed and rejected

earlier, and not on these grounds.

As to these grounds, we apply the rule in Gandia-Maysonet,

2000 WL 1273845, at *4 (issues not raised before the trial court

treated as forfeited absent showing of plain error in Rule 11 cases),

even though Santiago also did not squarely raise the grounds in this

court. We will give him the benefit of plain error review. See
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United States v. Olano, 507 U.S. 725, 731-32 (1993) (plain error

requires finding by reviewing court of error that not only affects

substantial rights but also "seriously affect[s] the fairness,

integrity, or public reputation of judicial proceedings"). We do so

because Santiago glancingly raises the issue, arguing before this

court (in one sentence in his brief) that the district court

prejudiced defendant by accepting the change in the government's

position without giving Santiago a chance to reply, and because we

think it better to address the point.

Even if there were procedural error here and it were

plain, Santiago's substantial rights have not been affected. Rule 11

was not violated here, the plea was voluntary, and he got the

sentence for which he bargained. This is not an instance of a

defendant receiving a sentence greater than that described to him as

to maximum and minimum sentences of which he must be advised. See

United States v. Santo, 2000 WL 1285391, at *7 (finding plain error

where court incorrectly advised defendant of applicable mandatory

minimum and maximum penalties). That the government was willing to

give him the benefit of his bargain without getting part of its

bargain does not infringe on the fairness, integrity, or public

reputation of judicial proceedings.

Affirmed.