Not for Publication in West’s Federal Reporter

United States Court of Appeals

For the First Circuit

No. 12-2039

UNITED STATES OF AMERICA,

Appellee,

v.

GILBERTO VARELA-RIVERA,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Torruella, Baldock,* and Kayatta,

Circuit Judges.

Rafael F. Castro Lang, for appellant.

Richard A. Friedman, Appellate Section, Criminal Division,

U.S. Department of Justice, with whom Rosa Emilia Rodríguez-Vélez,

United States Attorney, Mythili Raman, Acting Assistant Attorney

General, María L. Montañez-Concepción, Assistant United States

Attorney, District of Puerto Rico, and Denis J. McInerney, Acting

Deputy Assistant Attorney General, were on brief for appellee.

January 15, 2014

*

Of the Tenth Circuit, sitting by designation.
Baldock, Circuit Judge. On March 9, 2012, Defendant

Gilberto Varela-Rivera pled guilty to possession of a firearm in

furtherance of a drug trafficking offense in violation of 18 U.S.C.

§ 924(c)(1)(A). The Government agreed to recommend a sentence of

15 years’ imprisonment in return for his plea. Nearly two months

later, Defendant requested new counsel and moved to withdraw his

plea, arguing his public defender had coerced him into pleading

guilty. The district court denied Defendant’s motion to withdraw

his guilty plea and sentenced him to 20 years’ imprisonment, which

“include[d] a component for lying before the Court.” Defendant now

appeals, arguing (1) the district court abused its discretion when

it refused to grant Defendant’s motion to withdraw his plea, and

(2) his sentence is procedurally and substantively unreasonable. 

Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742, we affirm.

I.

On December 19, 2011, Puerto Rico police officers entered

a motel room where Defendant was sleeping after the motel manager

called to report that Defendant had overstayed in the room. 

Defendant never responded to manager or police efforts to

communicate with him from outside the room. When officers entered

the room, they found Defendant sleeping with a loaded Glock

handgun, modified to fire in automatic mode, lying next to him on

the bed. They also saw what was later proven to be about 125 grams

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of marijuana and 17 grams of cocaine in various see-through

containers. Defendant was initially indicted in Puerto Rico

Commonwealth court; however, these charges were dismissed after the

Commonwealth court concluded the motel manager and the police had

violated Defendant’s privacy rights when they entered the motel

room. Federal authorities then arrested Defendant and indicted him

on four counts, including possession of an automatic firearm in

connection with a drug offense in violation of 18 U.S.C.

§ 924(c)(1). If Defendant had been convicted of this offense

alone, he would have faced a mandatory minimum sentence of 30

years’ imprisonment under 18 U.S.C. § 924(c)(1)(B)(ii).

Defendant moved to suppress under the Fourth and Fifth

Amendments the gun, the drugs, and various incriminating statements

he made during his arrest and booking. The district court

scheduled a hearing on Defendant’s motion for March 6, 2012, and

Defendant’s trial for March 7. On March 6, before the suppression

hearing began, Defendant’s public defender informed the court that

he had just received in discovery from the Government evidence that

Defendant may have told one of the booking officers that the police

were lucky he was asleep when they entered the motel room because,

if he had been awake, he would have shot them. In light of this

new evidence, the public defender asked for a five-working-day

continuance to “talk it over” with Defendant and “see if he still

wishe[d] to proceed given this statement.” The parties then

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discussed Defendant’s options, and the court held an off-record

bench conference with the public defender. After this bench

conference, the court explained to Defendant that if it held a

suppression hearing, the hearing would amount to the police giving

testimony, which Defendant’s public defender could try to impeach

or which Defendant himself could take the stand to try to

contradict. The court then explained that if Defendant took the

stand to argue his suppression motion, the police would impeach him

with his criminal record and getting the court to believe his story

rather than the Government’s would be “pretty uphill” for him,

given this record.1

 The court then postponed Defendant’s trial

until March 9 so Defendant and his public defender could “explore

a disposition of this case that may dispense [with the] statutory

minimum of 30 years, because of the firearm.”

On March 9, 2012, Defendant executed a plea agreement

under Fed. R. Crim. P. 11(c)(1)(B) whereby he pled guilty only to

a charge of possession of a non-automatic firearm and the

Government agreed to recommend a 15-year sentence. The court held

a change-of-plea hearing that same day. The court advised

Defendant of the purpose of the hearing, and the consequences of

1

 Although the court’s statement here arguably could call its

ability to be impartial into question and was therefore improper

under 28 U.S.C. § 455(a), the statement did not “reveal an opinion

that derives from an extrajudicial source [or] reveal such a high

degree of favoritism or antagonism as to make fair judgment

impossible.” Liteky v. United States, 510 U.S. 540, 555 (1994).

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pleading guilty. Defendant twice confirmed at this hearing that

his plea was voluntary and that he was satisfied with the work of

his public defender. Defendant also confirmed that he understood

the rights he was waiving by pleading guilty. When the court asked

Defendant “has somebody threatened you or anybody else related to

you in order to induce you to plead in this case?,” he responded:

“No.” When asked whether there was “anything that may still bother

you in your mind,” Defendant responded: “No. It’s fine.”

Thirteen days later, on March 22, Defendant filed a pro

se transcript request for the March 6 and March 9 hearings. The

court provided these transcripts on April 4. Then, on May 4,

Defendant moved to withdraw his guilty plea and obtain substitute

counsel. He argued his public defender had told him the district

court would deny his suppression motion and sentence him to life if

he did not plead guilty, but when he read the transcripts, he

realized the court had said no such thing. He therefore argued his

public defender had misled and coerced him into pleading guilty. 

The public defender withdrew as defense counsel, citing the obvious

conflict of interest, but offered to respond to the allegations

related to the voluntariness of Defendant’s plea if needed. 

Substitute counsel was then appointed, and filed a formal motion to

withdraw Defendant’s plea, stating Defendant only gave up on the

suppression hearing and chose to plead guilty based on

misstatements by his public defender.

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At Defendant’s August 1 sentencing hearing the court

considered his motion to withdraw his plea. Defendant was sworn,

and proceeded to renege on nearly all of the answers he gave at his

change-of-plea hearing. He blamed his public defender for

“intimidating” him into signing the plea agreement. He said he had

lied to the court because of this intimidation. This was the only

evidence Defendant advanced in furtherance of his motion to

withdraw his plea. The court did not believe Defendant. It noted

the public defender “was an extremely competent lawyer with a lot

of experience gained in dealing with these kinds of cases,” who

“never, ever in his many appearances before the Court did anything

other than defend zealously his clients.” On the other hand, the

court found Defendant had “no credibility whatsoever.” The court

thus denied Defendant’s motion to withdraw his plea. Defendant’s

new counsel clarified that Defendant was initially satisfied with

his public defender, but that after he went back and looked at the

transcript from the suppression hearing he believed what his public

defender had told him was inconsistent with what he read in the

transcript. The court acknowledged this clarification, but did not

change its mind. It then proceeded to sentencing.

Before sentencing Defendant, the court confirmed with the

parties that “this case is totally non-guideline,” and defense

counsel agreed. The court then sentenced Defendant to 20 years’

imprisonment—five years above the Government-recommended sentence. 

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The court based the sentence on a number of factors, including

Defendant’s prior convictions for robbery, murder, and attempted

escape from prison. The court also noted this sentence “include[d]

a component for lying before the Court.” Defendant never objected

to the sentence, nor the court’s sentencing procedure.

II.

We first address Defendant’s motion to withdraw his

guilty plea. Because Defendant “moved to withdraw his guilty plea

prior to sentencing, we review the denial of the motion for abuse

of discretion.” United States v. Isom, 580 F.3d 43, 52 (1st Cir.

2009). In doing so, “we review credibility findings for clear

error, a standard highly deferential to the district court’s

conclusions.” United States v. Hart, 674 F.3d 33, 40 (1st Cir.

2012).

“A defendant may withdraw a plea of guilty . . . after

the court accepts the plea, but before it imposes sentence

if: . . . the defendant can show a fair and just reason for

requesting the withdrawal.” Fed. R. Crim. P. 11(d). In assessing

whether a fair and just reason exists, we consider (1) whether the

plea was voluntary, intelligent, knowing and in compliance with

Rule 11; (2) the strength of the reasons offered in support of the

motion; (3) whether there is a serious claim of actual innocence;

(4) the timing of the motion; and (5) any prejudice to the

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government if the withdrawal is allowed. Isom, 580 F.3d at 52.2

Defendant never argued actual innocence, nor could he; we therefore

address the remaining four factors in turn.

A.

Defendant argues his plea was involuntary because his

public defender coerced him into pleading guilty by telling him the

district court would impose a life sentence unless he did so.3

 “The

burden is upon [Defendant], as the one attacking the plea, to show

the circumstances justifying relief from the plea . . . .” United

States v. Padilla-Galarza, 351 F.3d 594, 598 (1st Cir.

2003)(internal citations omitted). Moreover, “[o]rdinarily, a

defendant is stuck with the representations that he himself makes

in open court at the time of the plea. They are more likely to be

reliable than later versions prompted by second thoughts, and

guilty pleas—often in the defendant’s interest—could hardly be

managed any other way.” Id.

2

 The district court should ordinarily consider these factors

in the first instance. United States v. Marrero-Rivera, 124 F.3d

342, 347 (1st Cir. 1997). Here, the district court failed to

explicitly analyze these factors, but we need not remand. As we

shall explain, we are satisfied that Defendant did not meet his

burden under these factors.

3 Defendant argues the sub-issue of his claim of coercion

should be reviewed de novo. We have not yet decided the applicable

standard for such claims, and we need not do so now, as Defendant’s

claim fails under any of the applicable standards. See United

States v. Rodríguez-Morales, 647 F.3d 395, 397–98 (1st Cir. 2011).

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Defendant provides no evidence to support his claim of

coercion beyond his own sworn testimony. Defendant was free to

call his public defender—indeed, the public defender offered to

respond to the allegations related to the voluntariness of

Defendant’s plea—but he did not do so. Thus, the court faced two

conflicting pieces of evidence in ruling on Defendant’s motion. 

First, at the change-of-plea hearing, Defendant twice confirmed

under oath that his plea was voluntary and that he was satisfied

with his public defender’s work. Second, five months later,

Defendant testified under oath that he had lied to the court and

his public defender had coerced him into signing the plea

agreement. “We review credibility findings for clear error,” Hart,

674 F.3d at 40, and, without more, we cannot say the district court

clearly erred when it believed Defendant’s initial

representations—at the time of his plea—that he was not coerced or

intimidated and later found Defendant had “no credibility

whatsoever” when he attempted to change his story. As such,

Defendant is stuck with the representations he made at the time of

his plea.

Defendant also contends that he did not have time to

review the plea agreement and that his public defender had coached

him on how to respond at the change-of-plea hearing. He therefore

argues his plea was unknowing. Defendant’s “claim that he did not

carefully review the written document and that his counsel coached

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him as to the responses is not by itself enough to show that the

plea was uninformed.” Padilla-Galarza, 351 F.3d at 598. As in

Padilla-Galarza, Defendant here confirmed with the court that he

had “ample opportunity” to discuss his case and his decision to

plead guilty with his public defender. Furthermore, the main terms

of Defendant’s agreement were spelled out by the judge in open

court. See id. Thus, we conclude Defendant’s original plea was

voluntary, intelligent, knowing, and in compliance with Rule 11.

B.

Defendant offers two reasons to justify withdrawing his

plea. The first is his allegation of coercion. As we discussed

above, Defendant told the district court two contradictory stories,

both times under oath, and the court had to choose which of his

stories to believe. Thus, Defendant’s coercion argument fails. 

The second reason Defendant advances to support

withdrawing his plea is that “two separate judges in the local

courts had ruled in his favor” and found the motel manager and

police had violated his privacy rights when they entered the motel

room where he slept. In United States v. Muriel, 111 F.3d 975 (1st

Cir. 1997), we addressed whether a potentially meritorious

suppression motion based on an alleged defect in the search warrant

that led to the defendant’s arrest was a plausible reason to

withdraw his plea. Id. at 978–79. We rejected this proffered

reason because the defendant failed to demonstrate that there was

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in fact a defect in the warrant. Id. at 979. True, the defendant

bears the burden of proving a warrant is defective, whereas the

Government here bears the burden of proving the lawfulness of a

warrant-less search. See United States v. Lopez, 380 F.3d 538, 543

(1st Cir. 2004). Nevertheless, “[b]efore embarking upon the merits

of a suppression challenge, a criminal defendant must show a

reasonable expectation of privacy in the area searched and in

relation to the items seized.” United States v. Aguirre, 839 F.2d

854, 856 (1st Cir. 1988). Defendant fails to make this initial

showing.

Defendant does not argue that he had a reasonable

expectation of privacy in the motel room. Indeed, the police

entered hours after the time he had paid for had expired.4

Furthermore, the motel manager and the police had tried repeatedly

to contact Defendant from outside the room before entering. 

Instead, on appeal, Defendant merely relies on the favorable

findings of two Commonwealth judges. These judges’ findings led to

the dismissal of the original Commonwealth charges brought against

4 Defendant admits in his opening brief that he only paid for

one eight-hour rental of the motel room, which had expired over two

hours before police entered. Def’s. Op. Br. at 5. But he also

drops a footnote in his brief stating he “claims he paid for two 8

hour periods.” Id. at 5 n.1. Defendant never objected to the

presentence report statement that he had overstayed in the motel

room. Furthermore, Defendant’s uncorroborated statement that he

paid for two eight-hour rentals comes from his sworn statement in

furtherance of his effort to withdraw his plea, which the district

court found had “no credibility whatsoever.” 

-11-
Defendant based on the gun and drugs found in the motel room. 

Defendant does not provide us with translations of these decisions,

and the Spanish versions are beyond our review. See United States

v. Rivera-Rosario, 300 F.3d 1, 5–6, 12 (1st Cir. 2002). The

Government, however, provides us with a translation of the

transcript of one of the Commonwealth judge’s decisions. This

decision concludes the police entrance of the motel room was

unreasonable under “due process.” The decision nowhere explains

whether Defendant had a reasonable expectation of privacy in the

motel room at the time the police entered. Furthermore, the

decision nowhere cites the Fourth Amendment, or any other law for

that matter.5 Thus, like the defendant in Muriel, Defendant’s

unsupported claim regarding the violation of his privacy rights

does not provide a plausible reason for withdrawal of his guilty

plea.

C.

A “two month lag between the plea hearing and appellant’s

motion to withdraw places it well within the area of vulnerability

because of untimeliness.” United States v. Pagan-Ortega, 372 F.3d

22, 31 (1st Cir. 2004); see also United States v. Ramos, 810 F.2d

308, 313 (1st Cir. 1987) (determining a thirteen-day delay between

5 Indeed, even if the police violated Defendant’s privacy

rights under Puerto Rico law, this would not trigger the

exclusionary rule. See Virginia v. Moore, 553 U.S. 164, 171

(2008).

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hearing and motion to withdraw disfavored defendant). Here,

Defendant waited 13 days before taking even the first steps toward

withdrawing his plea—requesting transcripts of the March 6 and

March 9 hearings—and he waited nearly two months before actually

moving to withdraw his plea. Even if we attribute Defendant’s

delay to the challenges of communicating through the prison mail

system, at most this means Defendant filed a timely motion to

withdraw his plea that ultimately failed on the merits.

D.

We “must weigh in the balance any demonstrable prejudice

to the government” only where “the defendant carries the burden of

persuasion on the aforementioned considerations.” United States v.

Marrero-Rivera, 124 F.3d 342, 347 (1st Cir. 1997). As discussed

above, even assuming his motion to withdraw his guilty plea was

timely, Defendant failed to carry his burden on any of the other

aforementioned considerations. His plea was voluntary,

intelligent, and knowing within the meaning of Rule 11; he does not

proffer a plausible reason justifying withdrawal of his plea; and

he cannot and does not assert actual innocence. As such, the

district court did not abuse its discretion in denying Defendant’s

motion to withdraw his guilty plea.

III.

Defendant also claims his 20-year sentence is both

procedurally and substantively unreasonable. We review a sentence

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first for procedural reasonableness, and if we are convinced no

substantial procedural error was committed, we then review the

sentence for substantive reasonableness. Gall v. United States,

552 U.S. 38, 51 (2007).

Defendant claims the district court committed procedural

error by (1) “retaliating against [him] by imposing an additional

five years’ incarceration for having sought to withdraw the guilty

plea under the guise of [finding Defendant] ‘lied through his

teeth’” and (2) basing the sentence on the court’s “conscience and

particular sensitivities.” Defendant failed to object to the

court’s sentencing procedure below, so we review these claims only

for plain error. United States v. Gilman, 478 F.3d 440, 445 (1st

Cir. 2007). To establish plain error, Defendant must show: “(1)

that an error occurred (2) which was clear or obvious and which not

only (3) affected the defendant's substantial rights, but also (4)

seriously impaired the fairness, integrity, or public reputation of

judicial proceedings.” United States v. Duarte, 246 F.3d 56, 60

(1st Cir. 2001).

Although he does not expressly argue it, Defendant quotes

precedent that states “the Court must compute the guidelines” at

sentencing. Def’s. Op. Br. at 25 (quoting United States v. Stone,

575 F.3d 83, 94 (1st Cir. 2009)). At sentencing, Defendant

affirmatively agreed that his case was “totally non-guideline.” 

Thus, any guideline-calculation argument Defendant may have had has

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been waived and we see no reason to excuse the waiver in this case. 

Cf. United States v. Torres-Rosario, 658 F.3d 110, 116 (1st Cir.

2011).

Returning to Defendant’s two stated procedural arguments,

Defendant first argues the court improperly imposed the five-year

increase above the government-recommended sentence entirely based

on Defendant’s lying to the court. We have already established the

district court did not clearly err when it found Defendant lied

under oath while attempting to withdraw his plea. Further, a

district court may properly increase a Defendant’s sentence if it

finds he committed perjury. See United States v. Grayson, 438 U.S.

41 (1978), superseded in unrelated part as stated in Barber v.

Thomas, 560 U.S. 474 (2010). Moreover, Defendant’s argument on

this point is disingenuous because the district court based only “a

component” of the sentence increase on the fact that Defendant had

lied to the court. The rest of the increase the court justified

based on the fact that Defendant had “violated parole . . . tried

to escape prison . . . murdered people. You name it. Everything. 

Everything in the book he has done. Theft, burglaries, robberies,

disguises. You name it. Everything.” As such, the district court

committed no error, let alone plain error, by increasing

Defendant’s sentence based on Defendant’s perjury as well as his

substantial criminal history.

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Defendant next argues the district court improperly based

his sentence on its “conscience and particular sensitivities.” His

argument is based on statements the court made in explaining why it

would not promise to follow the government’s 15-year sentence

recommendation at the March 9 change-of-plea hearing. The court

explained that it would not bind itself to follow a non-binding

plea agreement, first, because it wanted “to be able to do what

[its] conscience [said it] should do under the circumstances.” 

Next the court explained that it would not relax its standards out

of “fatigue.” The court elaborated on this fatigue by recalling

how, at one time, when one saw a story about a murder in the paper,

one would be too upset to eat breakfast, but “[n]owadays

people . . . count the drops of blood while they [drink their]

coffee.”

Even if these statements were improper, they did not

amount to error that was clear and obvious. “A [court]’s views on

matters of law and policy ordinarily are not legitimate grounds for

recusal, even if such views are strongly held.” United States v.

Snyder, 235 F.3d 42, 48 (1st Cir. 2000). Moreover, this does not

strike us as a case where the court was “unable to put aside [its]

personal convictions in order to carry out the law. . . .” Id.

The court made these statements at Defendant’s change-of-plea

hearing, nearly five months before it sentenced Defendant and in

response to the public defender’s attempt to get the court to

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indicate in advance the sentence it would impose. When the court

later sentenced Defendant, it made no reference to its conscience

or to how one should feel when reading about a murder in the news. 

Rather, the court based Defendant’s sentence on his substantial

criminal record and the fact that he had committed perjury in

attempting to withdraw his plea. Even assuming the court erred by

using social commentary to explain why it would not rubber-stamp a

non-binding sentence recommendation, the error was not clear and

obvious, and thus did not rise to the level of plain error.

Finally, Defendant contends his sentence is substantively

unreasonable. Because Defendant did not object to the substantive

reasonableness of his sentence before the district court, we review

it only for plain error. United States v. Tavares, 705 F.3d 4, 33

(1st Cir. 2013) cert. denied, 133 S. Ct. 2371 (2013) and cert.

denied, 134 S. Ct. 450 (2013). “When it comes to substantive

reasonableness, ‘a sentencing court’s ultimate responsibility is to

articulate a plausible rationale and arrive at a sensible result.’” 

United States v. Rodriguez-Reyes, 714 F.3d 1, 11 (1st Cir.

2013)(quoting United States v. Carrasco–de–Jesús, 589 F.3d 22, 30

(1st Cir.2009)).

Defendant cannot show his sentence was substantively

unreasonable. The undisputed offense conduct in Defendant’s

presentence report shows police found him sleeping with an

automatic firearm and a large quantity of drugs. Had he been

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convicted of the automatic firearm offense alone, he would have

faced a mandatory minimum 30-year sentence. Ultimately, Defendant

pled guilty to possession of a non-automatic firearm with a

statutorily imposed sentencing range of five years to life

imprisonment. The Government agreed to recommend a 15-year

sentence. The court, however, articulated a plausible rationale

for adding another five years: Defendant’s perjury and substantial

criminal history. Given the statutory sentencing range of five

years to life, and Defendant’s perjury and substantial criminal

history, we cannot say Defendant’s 20-year sentence was not a

sensible result, especially on plain error review.

Accordingly, Defendant’s conviction and sentence are

AFFIRMED.

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