United States Court of Appeals 

For the First Circuit 

No. 15-1031 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

JOSHUA DUNFEE, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

 [Hon. Patti B. Saris, U.S. District Judge] 

Before 

Kayatta, Stahl, and Barron, 

Circuit Judges. 

Paul J. Garrity for appellant. 

Randall E. Kromm, Assistant United States Attorney, with whom 

Carmen M. Ortiz, United States Attorney, was on brief, for 

appellee. 

May 2, 2016 
- 2 - 

PER CURIAM. Joshua Dunfee confessed not once, but twice, 

to allegations that he engaged in conduct sufficient to support 

convictions for the coercion and enticement of a minor, and the 

sexual exploitation of a child. The first of these confessions 

came at the time of Dunfee's arrest, and the second came during a 

change-of-plea hearing before the district court, at which Dunfee 

pled guilty to the charges against him. Later, Dunfee filed two 

motions seeking to withdraw his guilty plea. The district court 

denied these motions and sentenced Dunfee to a twenty-year term of 

imprisonment. Dunfee now appeals from the denial of his motions 

to withdraw his plea, as well as from his sentence, which he 

challenges as procedurally and substantively unreasonable. We 

AFFIRM. 

I. Facts and Background 

 A. The Offense Conduct 

 In 2010, Dunfee created a fictitious Facebook page for 

a photography studio by the name of Hunt Photography. Using the 

equally fictitious pseudonym, "John," Dunfee held himself out as 

a Hunt employee and, in September 2011, began communicating online 

with an adult female, A.L., a resident of Massachusetts. A.L. was 

interested in working as a model. Believing that Hunt Photography 

was a legitimate enterprise and that John was its legitimate 

employee, A.L. agreed to take part in an "audition" with John via 

a webcam, during which she exposed intimate parts of her body. 
- 3 - 

A.L. had a ten-year-old daughter, R.L. On October 4, 

2011, Dunfee again contacted A.L. This time, again acting as John, 

Dunfee offered A.L. $20,000 for a "mother-daughter bikini modeling 

contract." To secure the contract, Dunfee explained, A.L. and 

R.L. would need to audition. 

 During the course of a Skype call that afternoon, at 

Dunfee's direction, A.L. posed R.L. in front of the webcam wearing 

a bra and panties. Again at Dunfee's direction, A.L. manipulated 

R.L.'s underwear, then agreed to shave R.L.'s pubic area. A.L. 

then returned R.L. to the webcam fully nude and, following Dunfee's 

instructions, displayed R.L.'s genitalia, ostensibly so that 

Dunfee could determine if R.L. was a suitable "model." R.L. became 

so upset that she refused to continue and A.L. terminated the Skype 

call. A.L. then discussed the incident with her sister, who 

promptly reported it to police. 

 Using his IP address, law enforcement officers tracked 

Dunfee's communications to his residence, located in Oxford 

Junction, Iowa. On November 3, 2011, officers with the United 

States Postal Inspection Service ("USPIS") executed a search 

warrant at the premises. After waiving his Miranda rights, Dunfee 

gave a full confession to USPIS Inspector Scott Kelley, describing 

in detail his creation of the Hunt Photography Facebook page and 

his role posing as John, and confirming that he had directed A.L. 

to shave and display R.L.'s genitalia. Dunfee admitted to 
- 4 - 

Inspector Kelley that although he was unsure of R.L.'s exact age, 

he "guessed she was around 15." Dunfee was placed under arrest 

and was transferred to the District of Massachusetts. 

 As part of their search of Dunfee's residence, officers 

seized a number of computers, later examination of which revealed 

a wealth of incriminating evidence. For example, officers 

discovered records of the communications between Dunfee and A.L., 

as well as hundreds of sexually provocative pictures and videos of 

young girls.1

 B. Pretrial Proceedings and Dunfee's Guilty Plea 

 On November 29, 2011, Dunfee appeared for a hearing 

before a magistrate judge. Concluding that he posed a danger if 

released, the magistrate ordered Dunfee detained prior to trial. 

Dunfee was subsequently indicted on charges of sexually exploiting 

a child, in violation of 18 U.S.C. § 2251(a) and (e), and coercing 

and enticing a minor, in violation of 18 U.S.C. § 2422(b). 

In March 2012, at Dunfee's request, the magistrate judge 

dismissed Dunfee's appointed federal defender, and appointed 

Attorney John Salsberg, an experienced member of the criminal 

 1 Investigators also uncovered evidence that Dunfee had 

perpetrated a similar scheme by convincing a California teenager, 

whom Dunfee knew to be sixteen years old, to send him semi-nude 

photographs with the promise of a modeling contract. 
- 5 - 

defense bar, to represent him.2 Later, following the district 

court's approval of further funds, Attorney Salsberg was joined by 

an associate, resulting in Dunfee having two lawyers representing 

him for a significant portion of the pretrial proceedings. 

In May 2012, Dunfee moved for reconsideration of the 

magistrate judge's pretrial detention order. The magistrate judge 

held a two-day hearing, at which Dunfee offered the testimony of 

his wife, Barbara Dunfee; his mother-in-law, Terry Sherman; and 

his sister-in-law, Ashley Hubbard. Through this testimony, Dunfee 

sought to establish an alibi to prove that he was not at home on 

October 4, 2011, when he was alleged to have contacted A.L. and 

R.L. For example, Barbara and Ashley testified that they were 

with Dunfee for portions of the day, and Terry testified that she 

recalled seeing Dunfee and Ashley driving together that afternoon. 

This alibi defense was subsequently undermined in a 

number of key respects. For example, on cross-examination, Ashley 

(Dunfee's sister-in-law) admitted that she had previously had a 

sexual relationship with Dunfee and that she was aware Dunfee had 

used the Hunt Photography Facebook account. During her crossexamination, Terry (Dunfee's mother-in-law) conceded that she was 

unsure whether she had seen Ashley and Dunfee together on 

 2 In addition to his several decades of experience, Attorney 

Salsberg serves as an instructor at Harvard Law School and chairs 

the Criminal Justice Act Board in Massachusetts. 
- 6 - 

October 4, or some other date. What is more, while Ashley claimed 

that she and Dunfee had gone together to two restaurants on 

October 4, 2011, credit card records later established that they 

had in fact visited those locations on the previous day, October 3. 

The magistrate judge expressed his skepticism of the 

alibi defense at the hearing, observing that the testimony "simply 

doesn't persuade me, period." Later, the magistrate judge issued 

a written order denying Dunfee's motion to reconsider, in which he 

described the alibi defense as "incredible and unpersuasive." 

On September 19, 2013, Dunfee filed a motion to suppress 

the confession he had offered to USPIS Inspector Kelley, claiming 

that Kelley had misled and coerced him into waiving his Miranda 

rights. During a series of ensuing hearings, the district court 

heard testimony from Dunfee, Inspector Kelley, and another USPIS 

inspector who had witnessed Dunfee's receipt and acknowledgement 

of a Miranda waiver. In a written decision, the district court 

denied Dunfee's motion to suppress, finding that Inspector Kelley 

"did not coerce, intimidate, or otherwise deceive" Dunfee, and 

that Dunfee's "credibility was undermined by his clearly false 

testimony." United States v. Dunfee, No. 12-CR-10024-PBS, 2013 WL 

6488710, at *4 (D. Mass. Dec. 9, 2013). 

Pretrial proceedings continued through the end of 2013 

and into 2014. The trial was repeatedly delayed as Dunfee hired 

a series of forensics experts (with court-approved funds) to assess 
- 7 - 

his computer and the records of his online activities. Finally, 

a trial date was set for March 31, 2014. On the morning trial was 

to begin, however, Dunfee informed the district court that he 

intended to plead guilty to both of the charges against him. 

During a lengthy colloquy that followed, Dunfee assured the 

district court that he was fit to enter a guilty plea, that he had 

carefully reviewed the indictment with his attorneys, and that he 

was satisfied with the quality of the representation he had 

received. The government then offered a summary of the allegations 

it would have proven at trial, focusing specifically on Dunfee's 

use, on October 4, 2011, of the Hunt Photography Facebook page to 

induce A.L. and R.L. This led to the following exchange: 

The Court: Do you disagree with [the government's 

description of the offense conduct]? 

Dunfee: No. 

The Court: All right, were you the person who was 

pretending to be Hunt Photography and 

enticing that girl? 

Dunfee: Yes. 

The Court: [] Did you know she was underage? 

Dunfee: Yes.

After further questioning, during which Dunfee 

repeatedly assured the district court that his decision to plead 

guilty was undertaken knowingly, freely, and voluntarily, the 

district court accepted Dunfee's plea. 
- 8 - 

C. Dunfee's Attempts to Withdraw His Plea; Sentencing 

 Some two months later, in May 2014, the Probation Office 

issued a presentence report ("PSR"), which calculated a guideline 

recommended sentence of life imprisonment. Soon thereafter, 

Dunfee filed a pro se motion seeking to remove his attorney and to 

withdraw his guilty plea, which Dunfee stated was the product of 

ineffective assistance of counsel. In an accompanying affidavit, 

Dunfee professed his innocence and claimed that he was forced to 

plead guilty because his attorney had not adequately prepared for 

trial and had "obstructed" his defense by, among other perceived 

shortcomings, failing to pursue exculpatory evidence, discouraging 

defense witnesses from testifying, and telling Dunfee that his 

conviction was "guarantee[d]" if the case went to trial.3 Under 

separate cover, Dunfee filed a series of exhibits, including 

correspondence with his attorney and internet service records, 

which Dunfee argued proved he was innocent of the charges. Despite 

Dunfee's voluminous filings, he did not request a hearing. On 

August 18, 2014, the district court denied Dunfee's motion to 

withdraw his plea in a thorough written decision.4

 3 Although Dunfee was represented by two attorneys, his motion 

and affidavit focus only on the actions of Attorney Salsberg. 

4 The district court later granted Dunfee's request that 

Attorney Salsberg and his associate be dismissed from the case. 

The court appointed new counsel to represent Dunfee at sentencing. 
- 9 - 

In October 2014, still dissatisfied, Dunfee filed yet 

another pro se motion seeking to withdraw his plea. As before, 

Dunfee appended a lengthy series of exhibits, which he argued 

supported his claim of innocence. Again, he did not expressly 

request a hearing. The district court promptly denied this motion. 

Although Dunfee's PSR calculated a recommended sentence 

of life imprisonment, both Dunfee and the government urged the 

district court to impose a below-guideline sentence. The 

government requested a sentence of twenty-three years; Dunfee 

requested fifteen years. In December 2014, the district court 

sentenced Dunfee to a twenty-year prison term. 

II. Discussion 

 Dunfee appeals from the denial of his motions to withdraw 

his guilty plea, as well as from his sentence, which he challenges 

as procedurally and substantively unreasonable. We consider these 

issues in turn. 

 A. Withdrawal of the Guilty Plea 

 "A defendant may withdraw a guilty plea before sentence 

is imposed if he shows 'a fair and just reason for requesting the 

withdrawal.'" United States v. Isom, 580 F.3d 43, 52 (1st Cir. 

2009) (quoting Fed. R. Crim. P. 11(d)(2)(B)). We review a district 

court's denial of a motion to withdraw for abuse of discretion, 

United States v. Sousa, 468 F.3d 42, 46 (1st Cir. 2006), setting 
- 10 - 

aside factual findings only if they are clearly erroneous, United 

States v. Santiago Miranda, 654 F.3d 130, 137 (1st Cir. 2011). 

A defendant does not have an "unfettered right to retract 

a guilty plea" and he bears the burden to establish a fair and 

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

9 (1st Cir. 2014). In considering whether the defendant has 

carried this burden, we consider "whether the plea was voluntary, 

intelligent, knowing and in compliance with Rule 11; the strength 

of the reasons offered in support of the motion [to withdraw]; 

whether there is a serious claim of actual innocence; the timing 

of the motion; and any prejudice to the government if the 

withdrawal is allowed." Isom, 580 F.3d at 52. 

i. Rule 11: Voluntary, Intelligent, and Knowing 

The question of whether the defendant's guilty plea was 

entered voluntarily, intelligently, and knowingly is regarded as 

the "most significant" of the relevant factors. See United States 

v. Cotal-Crespo, 47 F.3d 1, 3 (1st Cir. 1995). Here, we have 

little difficulty concluding that Dunfee's plea passes muster. 

Upon being advised of his intention to plead guilty, the district 

court placed Dunfee under oath and advised him of his rights to a 

jury trial, to be represented by counsel, and to confront the 

witnesses against him. See Fed. R. Crim. P. 11(b)(1)(C)-(F). The 

district court also reviewed with Dunfee the charges he faced, the 

minimum and maximum penalties associated with those charges, the 
- 11 - 

applicable sentencing guideline range, and the fact that there was 

no plea agreement in place. See id. 11(b)(1)(G)-(N). 

What is more, the district court went to great lengths 

to ensure that Dunfee was pleading guilty of his own volition, and 

that there was a sufficient factual basis for him to do so. See 

id. 11(b)(2) and (3). In response to clear and direct questions 

posed by the district court, Dunfee confirmed that he had reviewed 

the indictment with his attorneys, that he understood its contents, 

and that he was satisfied with his legal representation. Then, at 

the court's request, the government described the factual 

allegations it would have been able to prove at trial. After 

hearing these allegations, Dunfee confirmed that they were true 

and correct. He also answered "yes" when the district court asked 

him whether he had used the Hunt Photography Facebook account to 

entice A.L. and R.L., and whether he knew at the time that R.L. 

was underage. 

In sum, Dunfee affirmatively declared under oath at a 

properly conducted Rule 11 hearing that he was guilty of the crimes 

with which he was charged. These "declarations in open court carry 

a strong presumption of verity," Santiago Miranda, 654 F.3d at 138 

(quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977)), and the 

district court was "entitled to give weight to [those declarations] 

absent a 'good reason for disregarding them,'" id. (quoting United 

States v. Torres-Rosario, 447 F.3d 61, 67 (1st Cir. 2006)); see 
- 12 - 

also United States v. Gates, 709 F.3d 58, 69 (1st Cir. 2013) 

("A defendant is normally bound by the representations that he 

himself makes in open court at the time of his plea."). 

Dunfee argues here, as he did before the district court, 

that his decision to enter a guilty plea was not made voluntarily; 

rather, it was the product of his attorney's ineffective assistance 

and coercion. More specifically, Dunfee maintains that because 

his attorney failed to adequately prepare for trial, he felt that 

he had no choice but to plead guilty. Compounding matters, Dunfee 

felt coerced by his attorney, who told him that his conviction was 

"guarantee[d]" if the case went to trial. 

 To parse Dunfee's ineffective assistance claim, we apply 

the two-part standard articulated in Strickland v. Washington, 466 

U.S. 668 (1984). See United States v. Isom, 85 F.3d 831, 837 (1st 

Cir. 1996). In order to prevail, Dunfee must "show that, first, 

counsel's performance in advising [his] guilty plea[] fell below 

the standard of performance of reasonable proficient counsel, and 

second, that by such inadequate performance, [Dunfee] was induced 

to enter [a] guilty plea[] which he otherwise would not have 

entered." Id. (internal quotation marks omitted). "The Strickland 

test imposes 'highly deferential' judicial scrutiny of counsel's 

performance and 'a strong presumption that counsel's conduct falls 

within the wide range of reasonable professional assistance.'" 

Lopez-Nieves v. United States, 917 F.2d 645, 648 (1st Cir. 1990) 
- 13 - 

(quoting Strickland, 466 U.S. at 689). Where, as here, the 

defendant was represented by multiple attorneys, an ineffective 

assistance challenge is particularly difficult to mount. See id. 

at 647. 

 Dunfee offers several examples of what he characterizes 

as Attorney Salsberg's ineffectiveness. He claims that Attorney 

Salsberg failed to investigate and uncover exculpatory evidence, 

and discouraged certain defense witnesses from testifying. He 

also argues that Attorney Salsberg failed to investigate his mental 

health as relevant to the defense, and failed to advise the 

district court, on the eve of trial, that a continuance was needed 

in light of a new prospective witness that Dunfee had identified. 

We begin with Dunfee's claim that Attorney Salsberg 

failed to pursue exculpatory evidence. Although it is somewhat 

unclear, as best we can tell, this claim relates principally to 

evidence which falls into one of two broad categories. First, 

Dunfee claims that Attorney Salsberg failed to adequately pursue 

evidence and witnesses which would have supported his alibi 

defense. Second, Dunfee argues that Attorney Salsberg was derelict 

in failing to uncover electronic records which he maintains would 

have proven that he could not have communicated with A.L. and R.L. 

on October 4, 2011. 

Dunfee's attorneys aggressively pursued evidence to 

support the alibi defense, but the evidence simply did not exist. 
- 14 - 

By way of example, while Dunfee sought to offer the testimony of 

Terry and Ashley to prove that he was not at home at the time of 

the alleged offense, neither witness was apparently in a position 

to establish his whereabouts on the day in question. Likewise, 

while Dunfee pointed to his time-stamped work records as evidence 

that he could not have committed the crime, they in fact showed 

that he was not at work during the day on October 4, 2011. 

Furthermore, to the extent that Dunfee now claims that 

electronic records might have helped his cause had his attorneys 

uncovered them, the district court acted well within its discretion 

in finding that any such records either did not exist or would not 

have been helpful to Dunfee. As we have said, the pretrial 

proceedings were repeatedly delayed as Dunfee sought more time 

(and court-approved funding) for further forensic review of the 

computers seized during the search of his residence. Despite ample 

opportunity for the discovery of the electronic records that Dunfee 

claims his attorneys should have found, no such evidence was 

presented to the district court, nor has it been presented to us 

on appeal. See United States v. Pulido, 566 F.3d 52, 59-60 (1st 

Cir. 2009) ("[W]e have typically disregarded representations at a 

plea colloquy 'only when the allegations were highly specific and 

usually accompanied by some independent corroboration.'" (quoting 

United States v. Butt, 731 F.2d 75, 80 n.5 (1st Cir. 1984))). 
- 15 - 

Ultimately, the district court's conclusion that 

Dunfee's attorneys did not fail to seek out exculpatory evidence 

was rooted in the district court's reasonable evaluation of the 

extensive factual record before it. Where, as here, such factual 

determinations underpin the denial of a motion to withdraw, we 

review those determinations solely for clear error. Santiago 

Miranda, 654 F.3d at 137. Dunfee would have us construe the same 

factual record that was before the district court favorably to 

him, and to infer the existence of evidence that he claims his 

attorneys should have found. But, such inferential leaps and 

second guessing are not the object of our clear error inquiry. 

See Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152 (1st Cir. 

1990) ("If the district court's account of the evidence is 

plausible in light of the record reviewed in its entirety, the 

court of appeals may not reverse it even though convinced that had 

it been sitting as the trier of fact, it would have weighed the 

evidence differently." (quoting Anderson v. City of Bessemer City, 

470 U.S. 564, 573-74 (1985))). Recognizing that the district court 

was itself constrained to apply "highly deferential" scrutiny to 

counsel's performance, Strickland, 466 U.S. at 689, we find that 

the district court did not clearly err when it found that Dunfee's 

attorneys acted reasonably in seeking exculpatory evidence. 

We may quickly dispose of the remaining bases for 

Dunfee's ineffective assistance claim. Dunfee claims that 
- 16 - 

Attorney Salsberg discouraged certain defense witnesses from 

testifying, although he does not identify these witnesses in his 

brief. Even assuming, however, that Attorney Salsberg actively 

discouraged these unnamed witnesses from testifying, this does not 

raise the specter of ineffective assistance because Dunfee does 

not suggest that these witnesses could have provided exculpatory 

(or even relevant) testimony had the case proceeded to trial.5

Next, Dunfee claims that Attorney Salsberg failed to 

inform the district court, in a motion to continue filed just prior 

to trial, that a continuance was necessary because Dunfee had 

identified a new prospective witness. Rather, this motion 

identified the reason for the requested continuance as a need to 

further examine electronic records related to Dunfee's use of 

Facebook. The district court promptly denied this motion. 

To be sure, an attorney filing a motion of any kind is 

obligated to "state the grounds on which it is based." Fed. R. 

Crim. P. 47(b). Here, Attorney Salsberg complied with this 

requirement by describing in detail his need for additional time 

to examine Dunfee's use of Facebook. Although, with the benefit 

of hindsight, Dunfee argues that Attorney Salsberg should have 

proffered a different (or additional) reason for a continuance, 

 5 For example, although there is some indication that Attorney 

Salsberg told Dunfee's mother that her testimony would not be 

helpful, she does not seem to have been in a position to offer 

testimony relevant to proving Dunfee's guilt or innocence. 
- 17 - 

the decision to request a continuance on grounds that more time 

was needed to review the electronic records at issue in the case 

is precisely the sort of technical, strategic decision-making that 

we are loath to second guess. See Wilder v. United States, 806 

F.3d 653, 660 (1st Cir. 2015) (assessing whether counsel was 

ineffective by asking whether "[o]bjectively reasonable counsel 

could have made a strategic choice" to do as trial counsel did), 

cert. petition filed, No. 15-8799 (U.S. filed Apr. 4, 2016). This 

is particularly true where, as here, the defendant is represented 

by multiple attorneys, at least one of whom is vastly experienced. 

See Lopez-Nieves, 917 F.2d at 647. 

Finally, Dunfee claims that his attorney failed to 

investigate his depression and anxiety as relevant to proving his 

innocence. While the record suggests that Dunfee has a history of 

mental illness, Dunfee does not explain how this fact was relevant 

to his ability to commit the charged offenses or to his decision 

to plead guilty. Thus, the alleged failure to pursue this line of 

defense cannot form the basis of an ineffective assistance claim. 

Cf. Companonio v. O'Brien, 672 F.3d 101, 110-11 (1st Cir. 2012) 

(discussing ineffective assistance in the context of counsel's 

decision of whether to pursue an insanity defense). 

Separately, Dunfee argues that his guilty plea was 

coerced because Attorney Salsberg told him that his conviction was 

"guarantee[d]" if the case went to trial. "[A] guilty plea is 
- 18 - 

involuntary and therefore invalid if it is obtained 'by . . . 

coercion overbearing the will of the defendant.'" United States 

v. Martinez-Molina, 64 F.3d 719, 732 (1st Cir. 1995) (quoting Brady 

v. United States, 397 U.S. 742, 750 (1970)). Of course, there is 

a distinction between coercion and the offering of candid legal 

advice. See Lema v. United States, 987 F.2d 48, 52-53 (1st Cir. 

1993). For this reason, we must be mindful of the context in which 

an allegedly coercive statement is made. 

Here, the record establishes that Dunfee was up against 

the ropes; he faced a flurry of incriminating evidence and had 

little with which to fight back. By way of example, Dunfee had 

offered a full confession at the time of his arrest, the specifics 

of which were verified through forensic examination of his 

computers. Not one, but two federal judges had previously rejected 

his alibi defense as utterly incredible, and the witnesses Dunfee 

sought to use in that defense were ultimately unable to offer 

helpful testimony. Thus, while a prognostication that a conviction 

was "guarantee[d]" may have come as unwelcome, in this case it 

certainly did not come close to rising to the level of coercion.6

 6 Dunfee suggests that Attorney Salsberg told deliberate lies 

to him and to potential defense witnesses in an effort to prevent 

the case from going to trial. The magistrate judge and the 

district court independently concluded that Dunfee was untruthful 

during the pretrial proceedings. Thus, we see no clear error - or, 

indeed, any error at all - in the district court's rejection of 

these patently incredible allegations in the absence of any sort 

of evidentiary proffer. 
- 19 - 

We thus find that Dunfee's confession was voluntary, 

intelligent, knowing, and offered and accepted in compliance with 

Rule 11. See Isom, 580 F.3d at 52. 

ii. The Remaining Fair and Just Reason Factors 

 Although Dunfee focuses on voluntariness, we also 

consider the strength of the reasons offered in support of 

withdrawal, whether there is a serious claim of actual innocence, 

the timing of the motion, and any resulting prejudice. Id. 

First, for reasons we have described, Dunfee's claims of 

ineffective assistance and coercion do not serve as strong bases 

in support of withdrawal. What is more, his claim of innocence is 

backed only by conclusory allegations and wishful conjecture as to 

the possible existence of exculpatory evidence. These 

unsubstantiated and self-serving claims "evince[] only weak and 

implausible assertions of innocence." United States v. SanchezBarreto, 93 F.3d 17, 24 (1st Cir. 1996); see also United States v. 

Pellerito, 878 F.2d 1535, 1543 (1st Cir. 1989) ("When an accused 

seeks to withdraw a guilty plea, the court is not obliged to treat 

self-serving accounts as gospel."). 

With respect to timing, Dunfee waited some two months 

after pleading guilty to file his first motion to withdraw. This 

extended delay weighs against permitting withdrawal. See United 

States v. Pagan-Ortega, 372 F.3d 22, 31 (1st Cir. 2004) (holding 

that a two-month delay between the entry of a guilty plea and a 
- 20 - 

motion to withdraw was "well within the area of vulnerability 

because of untimeliness"). What is more, we look skeptically on 

motions to withdraw which follow closely on the heels of the 

issuance of an unfavorable PSR, as was the case here. See Santiago 

Miranda, 654 F.3d at 140 ("Because the PSR calculated a . . . 

guideline sentence [of] life in prison. . . . [t]hese circumstances 

suggest that it was a recalculation of risks and benefits‒not 

involuntariness‒that produced [a] change of heart."). 

Finally, we find that both the government and Dunfee's 

victims would have been prejudiced by a withdrawal of his plea, 

further tipping the scales in favor of affirmance. See United 

States v. Santiago-Rivera, 805 F.3d 396, 398 (1st Cir. 2015) 

(recognizing, in a child pornography case, "the severe prejudice 

that the government would face were [the defendant] permitted to 

withdraw his guilty plea, and the burden that his victims would 

face were they forced to relive the trauma inflicted upon them so 

long after they believed this case had ended"). 

In the final analysis, Dunfee's motions failed to 

establish a fair and just reason for the withdrawal of his guilty 

plea and, thus, we affirm their denial by the district court. 

iii. Denial Without a Hearing 

 Separately, Dunfee challenges the district court's 

decision not to hold a hearing on one (or both) of his motions to 

withdraw. "[A]n evidentiary hearing on a motion to withdraw . . . 
- 21 - 

is required when a defendant alleges facts which, if taken as true, 

would entitle him to relief." Pulido, 566 F.3d at 57 (internal 

quotation marks omitted). "Specifically, a defendant is entitled 

to an evidentiary hearing unless the facts alleged are 

'contradicted by the record or are inherently incredible . . . 

[or] are merely conclusions rather than statements of fact.'" Id. 

(quoting United States v. Crooker, 729 F.2d 889, 890 (1st Cir. 

1984) (further quotation marks omitted)). 

Because Dunfee did not request a hearing on either of 

his motions to withdraw his plea, our review is for plain error. 

See United States v. Cheal, 389 F.3d 35, 45 (1st Cir. 2004). To 

prevail, Dunfee must establish "(1) that an error occurred (2) 

which was clear or obvious and which not only (3) affected [his] 

substantial rights, but also (4) seriously impaired the fairness, 

integrity, or public reputation of judicial proceedings."7 United 

States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). 

Here, Dunfee's claims of ineffective assistance, 

coercion, and innocence were conclusory and unsubstantiated. They 

were also wholly refuted by the record evidence. Thus, even had 

Dunfee clearly requested a hearing in connection with either of 

 7 Dunfee claims that his second motion to withdraw 

"indirectly" requested a hearing and, therefore, we should review 

for abuse of discretion. See Santiago Miranda, 654 F.3d at 137. 

We need not decide whether Dunfee adequately requested a hearing, 

however, because we find that his challenge would fail under either 

plain error or abuse of discretion review. 
- 22 - 

his motions to withdraw, the district court would have been under 

no obligation to grant him one. Consequently, the lack of a 

hearing on either motion does not serve as grounds for reversal. 

 B. Reasonableness of the Sentence 

 Dunfee challenges his sentence as both procedurally and 

substantively unreasonable. Because this challenge was not 

preserved, our review is for plain error. United States v. RuizHuertas, 792 F.3d 223, 226 (1st Cir. 2015).8

 i. Procedural Reasonableness 

 A sentence is procedurally reasonable if "the district 

court committed no significant procedural error, such as . . . 

failing to consider the [18 U.S.C.] § 3553(a) factors, . . . or 

failing to adequately explain the chosen sentence." United States 

v. Martin, 520 F.3d 87, 92 (1st Cir. 2008) (quoting Gall v. United 

States, 552 U.S. 38, 51 (2007)). Dunfee contends that his sentence 

was procedurally unreasonable because the district court did not 

consider his mental illness and failed to fully explain the 

sentence in light of the § 3553(a) factors. See 18 U.S.C. § 3553(c) 

(requiring the court to "state . . . the reasons for its imposition 

of the particular sentence"). We are not persuaded. 

 8 We acknowledge that the standard applicable to unpreserved 

claims of substantive reasonableness is "somewhat blurred," RuizHuertas, 792 F.3d at 228, but we need not delve any deeper because 

Dunfee concedes that plain error review applies to his claim. 
- 23 - 

 First, the record reveals that the district court was 

acutely aware of Dunfee's mental health issues. Before imposing 

the sentence, the district court observed that Dunfee has "some 

anxiety disorder." Then, the court listened as defense counsel 

explained his belief that Dunfee suffers from a dissociative 

disorder "where he has accepted responsibility publicly . . . but 

he can't now accept it." Later, the district court stated that 

"[Dunfee] needs mental health evaluation and treatment. . . . 

[T]here's something that doesn't allow him to see what's happened." 

It is true, as Dunfee contends, that the district court 

did not expressly state that mental health was among the § 3553(a) 

factors that it considered in imposing sentence. But, such 

excessive precision was not required, particularly where the court 

was clearly mindful of the role that Dunfee's mental health had 

played in the offense and his inability to accept responsibility 

for it. See United States v. Turbides-Leonardo, 468 F.3d 34, 40 

(1st Cir. 2006) ("[T]he sentencing court's explanation need [not] 

be precise to the point of pedantry."); United States v. Clogston, 

662 F.3d 588, 592 (1st Cir. 2011) ("A reviewing court should be 

reluctant to read too much into a district court's failure to 

respond explicitly to particular sentencing arguments. Instead, 

the reviewing court must assay the record as a whole to gauge the 

sentencing judge's thought process."). 
- 24 - 

 What is more, we reject Dunfee's claim that the district 

court failed to adequately explain his sentence in light of the 

§ 3553(a) factors. The district court expressly considered, among 

other factors, the seriousness of the offense and Dunfee's lack of 

remorse. The court also considered mitigating factors, including 

Dunfee's work history and the fact that he had not physically 

touched his victims. See 18 U.S.C. § 3553(a) (listing, among other 

relevant factors, "the nature and circumstances of the offense and 

the history and characteristics of the defendant" and "the need 

for the sentence imposed"). Thus, we find that the district court 

adequately explained Dunfee's sentence, and in any event certainly 

committed no plain error. See United States v. Dixon, 449 F.3d 

194, 205 (1st Cir. 2006) ("[A] sentencing court . . . is not 

required to address [all of the § 3553(a)] factors, one by one, in 

some sort of rote incantation when explicating its sentencing 

decision."). 

 ii. Substantive Reasonableness 

 "A sentence is substantively reasonable so long as it 

rests on a 'plausible sentencing rationale' and embodies a 

'defensible result.'" Ruiz-Huertas, 792 F.3d at 228 (quoting 

Martin, 520 F.3d at 96). Proving substantive unreasonableness is 

a "heavy lift" for a defendant, particularly where, as here, the 

sentence imposed is significantly below the guideline range. Id. 

at 228-29. 
- 25 - 

 Dunfee makes two arguments claiming that his sentence 

was substantively unreasonable. First, he claims (again) that the 

district court failed to consider his history of mental illness. 

But, as we have described, Dunfee's critique mischaracterizes the 

sentencing hearing, at which the district court expressly 

considered his anxiety and his need for mental health treatment. 

 Dunfee next argues that the court overemphasized his 

failure to accept responsibility. This was plain error, Dunfee 

maintains, because he did not receive credit for acceptance of 

responsibility under the sentencing guidelines and, therefore, a 

focus on this issue had the effect of penalizing him twice. 

 True, during sentencing, the district court referenced 

Dunfee's refusal to accept responsibility and his repeated 

dishonesty during the pretrial proceedings. But, in our view, 

these observations were reasonable when considered in context. 

Dunfee had confessed at the time of his arrest, then again on the 

record during a change-of-plea hearing. Notwithstanding these 

confessions and the overwhelming evidence against him, Dunfee 

sought twice to withdraw his plea, inundating the district court 

with a series of voluminous, but ultimately baseless filings. What 

is more, both the district court and the magistrate judge felt the 

need to take the unusual step of publicly chastising Dunfee for 

offering false testimony. The district court thus acted within 

its discretion in referencing these issues during sentencing. See 
- 26 - 

Clogston, 662 F.3d at 593 ("[T]he weighting of [sentencing] factors 

is largely within the court's informed discretion."). 

Nor are we persuaded that Dunfee was doubly penalized. 

Although the PSR recommended a life sentence, the district court 

ultimately imposed a much shorter sentence of twenty years. And 

Dunfee does not plausibly suggest that a sentence even shorter 

than that would have resulted had the district court not considered 

his refusal to accept responsibility.9 Thus, even if we assume, 

favorably to Dunfee, that the district court erred by focusing too 

intently on this issue, Dunfee could not establish that any such 

error affected his substantial rights. Duarte, 246 F.3d at 60. 

III. Conclusion 

 The judgment of the district court is AFFIRMED. 

 9 Indeed, Dunfee already faced a fifteen-year mandatory 

minimum sentence. See 18 U.S.C. § 2251(e).