Not for Publication in West's Federal Reporter Citation Limited Pursuant to lst Cir. Loc. R. 32.3 

# United States Court of Appeals

For the First C ircuit

No. 03-1636 UNITED STATES OF AMERICA, Appellee,
v. VICTOR MELÉNDEZ-DE-JESÚS, Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Carmen Consuelo Cerezo, U.S. District Judge ]
Before Torruella, Circuit Judge , Coffin and Stahl, Senior Circuit Judges .

Lorenzo J. Palomares , by App ointment of the Court, on brief for appellant. German A. Rieckehoff , Assistant United States Attorney, H.S. García , United States Attorney, and Sonia I. Torres-Pabón , Assistant United States Attorney, on brief for appellee.

March 24, 2004-2-

COFFIN, Senior Circuit Judge . This is the last chapter of a criminal prosecution for aiding and abettingin a drug transaction conspiracy, in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2, and usinga firearm in relation to such transaction, in violation of 18 U.S.C. § 924(c)(1)(A). Appellant appeals from a judgment imposing
a sentence of 84 months on the ground that the district court abusedits discretion in refusing to allow him to withdraw his guilty plea. This is a veryhard row for appellant to hoe. The standard of review, as appellant agrees, is abuse of discretion. He also agrees that the burden of establishing a "fair and just" reason for withdrawal of a plea is upon the defendant and t hat the four criteria we employ in making this determination are (1) the plausibilityof proffered reasons, (2) the timing of the motion for withd rawal, (3) the presence or absence of an assertion o f innocence, and (4) the voluntariness or involuntariness of the plea in derogation of the requirements set out by Fed. R. Crim. P. 11. See United States v. Muriel , 111 F.3d 975, 978 (lst Cir. 1997). We addthat we review findings of fact with "considerable deference .

. . t o the firs thand assessment" of the district court. United States v. Aker , 181 F.3d 167, 170 (lst Cir. 1999)(citing United States v. Marrero-Rivera , 124 F.3d 342, 348 (lst Cir. 1997)). We begin with the chronology of the plea pr oceedi ngs, which reveals not only an absence of haste and pressure, but efforts to-3-

accommodate appellant in moments of uncertainty or confusion. The first motion for change of plea occurred fiv e mont hs after appella nt' s not guilty plea at arraignment. Three weeks later, appe llant asked the court to delay a change of plea hearing to reflect over discussions he had had with an attorney other than his
own counsel, who had expressed an opinion that a more favorable plea agreement, eliminating the firearms charge, might be possible. The court granted a substantial continuance. Two months passed, in which a plea agreement was arrived at between the government and appellant, accompanied by a statement of fac ts w hich contained admissions of appellant that he had aided and abetted others in a drugtransaction and was carrying a loaded firearm . A change of plea hearing was held on October 26, 2001. Three months elapsed. Then, on January 25, 2002, a motion to withdraw the plea was filed. This was denied almost four months later. In addressing the criteria of "fair and just" reasons for change of plea, we note the three month delay in filing the motion to withdraw the guilty plea. Appellant here faces a considerable obstacle in overcoming the disfavor accompanying such a belated motion as that in this case. See , e.g. , United States v. ParillaTirado , 22 F.3d 368, 373 (lst Cir. 1994). The justification adv anced in the motion consisted of the followingsentences: "Defendant fur ther advised he had always wantedto exercise his right to a jury trial; that he was innocent-4-

of the charges and had entered the guilty plea as he felt pressured to do so." Defendant sought to explain his delay in filing the motion on the ground that there had been no visit by his counsel. But there is no indication that a visit had been requested and counsel added
a footnote stating that there was no need for such a visit prior to an interview with the Probation Officer. The district court noted the complete absence of evidentiary support and held that defendant had not met his burden to show the plea was involuntarily made and that the request for wit hdr awal was bulwarked by a fair and just reason. No further enlightenment as to defendant's reasons arose until six m onths later, on July 22, 2002, at defendant's sentencing hearing. Only then were specific grounds identified. There are three such. The first is that appellant's mother hada "grave illness." On examination of the sentencing hearing record, this turns out to be appellant's mother's extreme fear of
a trial and appellant's wishing to avoid that trauma s o tha t she might recover. While deeply respecting such feelings, we could not very well accept such a reason as a sufficient basis to justify a belatedwithdrawal of plea motion, without dismantling the bulk of Fed. R. Crim. P. 11 jurisprudence. Appellant's second reason is the belatedly surfacing statement fromappellant's long incarcerated co-defendant, Velazquez-Rivera,1 This unsworn statement, dated December 5, 2001, was submitted

to the court on May 29, 2002, with a motion for reconsideration of the court's denial of defendant's request to withdraw his plea. -5- who stated that appe lla nt was completely unaware of the pending drugsale of two kilograms of cocaine, and that appellant was present because Velazquez was going to sell a gold chain for ap pell ant to one Cruz. 1 When Velazquez picked up the chain, appellant accompanied Ve lazque z to meet Cruz, but when they met, Velazquez approached Cruz "to prevent [appellant] from noticing the transaction [sale of the cocaine]." The skeptical reader may be forgiven for asking why appellant insisted on acco mpan ying his appointedsales agent and why Velazquez allowed appe llan t to accompanyhim if he was so insistent on concealing the drug transaction from him. And, we note, there was no exculpatory explanation why appellant came to the scene with a loaded gun. A final reason advanced by appellant was that the prosecutor was prejudiced against appellant, treating his co-defendants more favorably. This argument was not elaborated on with enough detail for us to make any judgment, certainl y not a j udgment that an egregious miscarriage of justice had occurred. What we have observed about the absence of a sufficiently plausibl e arti culated basis for change of plea also serves to address the adequacy of appellant's assertion of innocence. We add only that the absence of any attempt to justify the possession on-6-

his person of a loadedhand gun constitutes another barrier to the persuasiveness of his justification. It remains to assess fromthe record whether appellant's plea of guilty was an understanding and voluntary one. We make allowances for some difficulty in hearing and a period of confusion in dealing with the court's Rule 11 questions. But the enti re sequence of proceedings appears to us above any serious criticism. The plea agreement spelled out the counts of the indictment, the penalties, guidelines and calculations, the warn ings , the rights surrendered, satisfaction with counsel. And the change of plea hearing was conducted with meticulous care by the district judge, with sensitivity to any difficulty of understanding registered by appellant. Counsel for appellant was not only one of recognized competence but was highlyregarded by appellant. When asked if he
was satisfied with counsel's representation, appellant replied, "very much so." Our judgment, therefore, is th at a ppellant has fallen far short of presenting the kind of compelling case that could mandate reversal. Were we to find an abuse of discretion on this record, there would be very little sense in conducting a Rule 11 hearing. The most careful inquiry and most deliberate answers would be swept away by "second thoughts . . . . about the wisdom of [an] earlier decision," Parilla-Tirado , 22 F.3d at 371. Affirmed .