Not for Publication in West's Federal Reporter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 Circuit

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 Appointment 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
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COFFIN, Senior Circuit Judge. This is the last chapter of a

criminal prosecution for aiding and abetting in a drug transaction

conspiracy, in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2, and

using a 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

abused its discretion in refusing to allow him to withdraw his

guilty plea.

This is a very hard 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 that the four

criteria we employ in making this determination are (1) the

plausibility of proffered reasons, (2) the timing of the motion for

withdrawal, (3) the presence or absence of an assertion of

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

add that we review findings of fact with "considerable deference .

. . to the firsthand 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 proceedings, which

reveals not only an absence of haste and pressure, but efforts to
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accommodate appellant in moments of uncertainty or confusion. The

first motion for change of plea occurred five months after

appellant's not guilty plea at arraignment. Three weeks later,

appellant 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 facts which contained

admissions of appellant that he had aided and abetted others in a

drug transaction 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 advanced in the motion consisted of the

following sentences: "Defendant further advised he had always

wanted to exercise his right to a jury trial; that he was innocent
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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 withdrawal

was bulwarked by a fair and just reason.

No further enlightenment as to defendant's reasons arose until

six months 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

had a "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 so that she

might recover. While deeply respecting such feelings, we could not

very well accept such a reason as a sufficient basis to justify a

belated withdrawal of plea motion, without dismantling the bulk of

Fed. R. Crim. P. 11 jurisprudence. 

Appellant's second reason is the belatedly surfacing statement

from appellant's long incarcerated co-defendant, Velazquez-Rivera,
1This 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.

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who stated that appellant was completely unaware of the pending

drug sale of two kilograms of cocaine, and that appellant was

present because Velazquez was going to sell a gold chain for

appellant to one Cruz.1 When Velazquez picked up the chain,

appellant accompanied Velazquez 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 accompanying his

appointed sales agent and why Velazquez allowed appellant to

accompany him 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, certainly not a judgment that an

egregious miscarriage of justice had occurred.

What we have observed about the absence of a sufficiently

plausible articulated 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
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his person of a loaded hand gun constitutes another barrier to the

persuasiveness of his justification.

It remains to assess from the 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 entire

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 warnings, 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 highly regarded by appellant. When asked if he

was satisfied with counsel's representation, appellant replied,

"very much so." 

Our judgment, therefore, is that appellant 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.