United States Court of Appeals

For the First Circuit

No. 08-1626

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERTO E. PULIDO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Lynch, Chief Judge,

Torruella, and Lipez, Circuit Judges.

Miriam Conrad, Federal Defender Office, with whom Behzad

Mirhashem, were on brief for appellant.

Mark T. Quinlivan, Assistant United States Attorney, with whom

Michael J. Sullivan, United States Attorney, was on brief for

appellee.

May 20, 2009
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TORRUELLA, Circuit Judge. Defendant Roberto E. Pulido,

a former Boston police officer, pled guilty to drug and firearm

charges due to his involvement in two large cocaine deals. This

appeal raises several issues concerning his plea and sentencing.

After careful consideration, we affirm the district court in all

respects.

I. Background

We derive the facts from the trial preceding the plea,

the change of plea colloquy, and the Presentence Report ("PSR").

See United States v. Jiminez, 498 F.3d 82, 84 (1st Cir. 2007).

In 2003, Pulido, a Boston police officer assigned to the

mobile operations patrol, became the subject of a government

investigation. During the investigation the government learned,

through the work of a cooperating witness, that Pulido was involved

in a number of illegal ventures. The ventures included, among

other things, buying fraudulently obtained gift cards and providing

protection for parties, hosted by another individual, Matthew West,

that included drugs and prostitution.

In 2006, the government set up a sting operation in which

undercover agents posed as both buyers and sellers of large amounts

of cocaine. The agents approached Pulido about providing

protection for the shipment of cocaine. Pulido recruited two

Boston Police officers, Nelson Carrasquillo and, later, Carlos

Pizarro, to participate.
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The sting operation resulted in two transactions. The

first transaction involved the transfer of approximately 40

kilograms of cocaine from one van to another at a garage leased by

Pulido in Jamaica Plain. During this first transaction, the

government contends that Pulido possessed a firearm, a fact that

Pulido disputes. The second transaction involved the

transportation of approximately 100 kilograms of cocaine from

western Massachusetts to Boston. During the course of these

transactions, Pulido had discussions with the undercover agents

about establishing a "long relationship" and providing protection

for future shipments of cocaine totaling an additional 1,000

kilograms of cocaine.

Pulido, Pizarro, and Carrasquillo were charged in a four

count indictment, with Pulido charged under all four counts.

Counts 1, 2, and 4 charged drug offenses under 21 U.S.C. §§ 846 &

841(b)(1)(A). Count 3 charged Pulido with using or carrying a

firearm during and in relation to a drug trafficking crime, in

violation of 18 U.S.C. § 924(c)(1)(A). Both Pizarro and

Carrasquillo pled guilty and received sentences of thirteen years

and eighteen years respectively.

Pulido proceeded to trial. On November 8, 2007, after

three days of trial, but prior to the introduction of drug quantity
 The district court noted that it was its practice to submit 1

evidence as to drug quantity to the jury.

 See North Carolina v. Alford, 400 U.S. 25, 37 (1970) ("An 2

individual accused of crime may voluntarily, knowingly, and

understandingly consent to the imposition of a prison sentence even

if he is unwilling or unable to admit his participation in the acts

constituting the crime.").

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evidence, Pulido pled guilty to all four counts, offering an 1

Alford plea for Count 3. The district court conducted a change of 2

plea colloquy, with Pulido represented by attorney Rudolph Miller.

At the colloquy the district court confirmed that Pulido

was entering "a straight up plea" and that Pulido was "not pleading

with a plea agreement with the government." Moreover, when the

district court asked "[h]as the government said, look, if you plead

guilty [the district court] will do this or do that?," Pulido

responded "No, no sir. Nothing like that." When the district court

asked the government whether there had been a recommended sentence,

the government similarly responded "No, your Honor."

During the colloquy, the district court informed Pulido

that the highest guideline range he faced with respect to the drug

charges if he were awarded a two-level reduction for acceptance of

responsibility was 292 to 325 months. However, at various times

before and after stating this range, the district court informed

Pulido that "I have to add five years on and after on the gun

charge. No question about that."
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Shortly thereafter, on November 30, 2007, Miller moved to

withdraw as counsel, stating that the attorney-client relationship

had broken down and was beyond repair. The motion was granted the

same day and new counsel was appointed.

About five months later, on April 29, 2008, Pulido filed

a motion to withdraw his guilty plea and requested an evidentiary

hearing. Pulido claimed that his plea was not knowing and

voluntary because (1) his former counsel, Miller, promised Pulido

that he had obtained the government's promise to recommend a

fifteen year sentence from the government, and (2) he was

misinformed by the district court about the mandatory minimum

sentence that applied to him. Pulido also moved for leave to file

under seal an unredacted motion and affidavit, as well as a letter

from his former counsel, Miller, to the Board of Bar Overseers.

Pulido asserted that these documents supported his motion to

withdraw his guilty plea. The government filed a response stating,

in part, that it had no objection to an evidentiary hearing

provided that Pulido would take the stand and subject himself to

cross-examination. The government also filed, among other things,

an affidavit from Miller stating that "[t]here was no negotiated

plea deal and hence no recommended sentence."

On May 6, 2008, the district court denied Pulido's motion

to withdraw his guilty plea and motions to seal in two separate
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electronic orders. The district court did not conduct an

evidentiary hearing.

On May 14, 2008, Pulido moved to recuse the district

court judge. The basis of the motion was a sentencing memorandum

that the district court issued a week earlier, on May 7, 2008, in

separate case involving Matthew West. The sentencing memorandum

stated, in relevant part:

Together with a thoroughly corrupt police

officer, Roberto Pulido ("Pulido"), West ran

an unlicensed after-hours bar and strip club

rife with prostitution. Looking to get the

goods on Pulido (and perhaps other officers),

the F.B.I. used an undercover informant to

solicit West, seeking to purchase cocaine.

United States v. West, 552 F. Supp. 2d 74, 83 (D. Mass. 2008)

(emphasis added). The motion to recuse was denied two days later

on May 16, 2008, without a hearing and without a response by the

government.

Prior to sentencing, the defense submitted a sentencing

memorandum and moved the court to impose a below guidelines

sentence of 20 years, or 240 months. In support, the defense

submitted, among other things, a written report of a

neuropsychological evaluation of Pulido, which concluded that his

criminal conduct and moral decline was largely due to his heavy

steroid use. The defense also submitted numerous letters

supporting Pulido, police department commendations, and information

about Pulido's educational, employment, and personal history.
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On May 16, 2008, the district court sentenced Pulido.

The district court, following the PSR, calculated Pulido's

guidelines sentencing range ("GSR") by setting his criminal history

category at I and setting a base offense level of 36, based on 140

kilograms of cocaine. After adding a two-level enhancement for his

role as an organizer or leader of the criminal activity, see

U.S.S.G. § 3B1.1(c), a two level enhancement for his abuse of a

position of trust, see U.S.S.G. § 3B1.3, and a two level reduction

for acceptance of responsibility, see U.S.S.G. § 3E1.1, the

district court calculated Pulido's base offense level as 38, which

resulted in a GSR of 235 to 293 months, with an additional

five-year term (60 months) of imprisonment to be imposed

consecutively due to the mandatory minimum for the firearm charge.

This resulted in a GSR of 295 to 353 months.

The district court adopted the government's

recommendation of a sentence of 312 months, or 26 years. The

district court, addressing Pulido, then stated that "the conduct

related to these crimes, seem[s] utterly without redeeming

qualities" and that, although Pulido was "abusing steroids . . .

that's not an excuse." The district court concluded that "your

conduct puts you so far beyond the comradeship of those people who

wear that badge." The defense later raised the issue that the drug

quantity in this case was not indicative of Pulido's culpability,

since he was neither a buyer or seller of the drugs. The district
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court responded "I take it into account. . . . But it did not

particularly resonate with the Court and played [a] minimal role in

my determination of the sentence." Pulido now appeals.

II. Discussion

Pulido presents four issues on appeal. We address each

in turn.

A. Denial of Motion to Withdraw Guilty Plea

Pulido first argues that the district court erred when it

denied his motion to withdraw his guilty plea without an

evidentiary hearing.

Federal Rule of Criminal Procedure 11 provides that a

defendant may withdraw his or her guilty plea prior to sentencing

for any "fair and just reason." Fed. R. Crim. P. 11(d)(2)(B). We

have identified several factors to determine whether there is "fair

and just reason" to permit a withdrawal of a guilty plea, "the most

significant being whether the plea was voluntary, intelligent and

knowing, within the meaning of Rule 11." United States v.

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

Other factors include (1) the plausibility and weight of the

reasons offered by the defendant; (2) the timing of the request;

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

(4) whether the parties reached (or breached) a plea agreement; and

(5) any countervailing prejudice to the government if the defendant
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is allowed to withdraw his plea. See United States v. Sousa, 468

F.3d 42, 46 (1st Cir. 2006); Marrero-Rivera, 124 F.3d at 347.

"Absent errors of law, we review the decision to deny a

motion to withdraw a guilty plea only for 'demonstrable abuse of

discretion.'" United States v. Alvarez-Del Prado, 222 F.3d 12, 15

(1st Cir. 2000) (quoting United States v. Martínez-Molina, 64 F.3d

719, 732 (1st Cir. 1995)). However, an evidentiary hearing on a

motion to withdraw a guilty plea is "required when a defendant

alleges facts which, if taken as true, would entitle him to

relief." See United States v. González, 202 F.3d 20, 29 (1st Cir.

2000). Specifically, a defendant is entitled to an evidentiary

hearing unless the facts alleged are "'contradicted by the record

or are inherently incredible and to the extent that they are merely

conclusions rather than statements of fact.'" United States v.

Crooker, 729 F.2d 889, 890 (1st Cir. 1984) (quoting Otero-Rivera v.

United States, 494 F.2d 900, 902 (1st Cir. 1974)); see also

Machibroda v. United States, 368 U.S. 487, 496 (1962) (remanding

for evidentiary hearing on motion to vacate sentence and withdraw

guilty plea under § 2255 where allegations in support of the

motion, "while improbable, cannot at this juncture be said to be

incredible.").

Pulido argues that his motion alleges sufficient facts to

support his claim that his guilty plea was not voluntary and

knowing, such that he has asserted a "fair and just reason" to
 The letter itself was never filed. Pulido moved to file a 3

redacted version of the letter under seal, but on May 6, 2008, the

district court denied the motion as moot after it denied Pulido's

motion to withdraw.

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withdraw his guilty plea. See Fed. R. Crim. P. 11(d)(2)(B).

Accordingly, Pulido contends that he was entitled to an evidentiary

hearing, and that the district court erred in denying his motion

without one. Pulido argues, in particular, that his guilty plea

was not voluntary and knowing because his prior counsel, Miller,

erroneously represented to him that the government agreed to

recommend a sentence of fifteen years if he pled guilty

immediately. See McAleney v. United States, 539 F.2d 282, 284 (1st

Cir. 1976) (affirming allowance of withdrawal of plea where defense

counsel told his client that prosecutor agreed to a recommended

sentence of three years, but no such promise was made). For

support, Pulido points to the redacted affidavit he submitted with

his motion, where he asserts that Miller, during the course of the

proceedings, "told me . . . that the prosecutors had offered to

recommend a sentence of no more than 15 years, the minimum

mandatory sentence in the case, if I pled guilty immediately."

He also points to a letter his former counsel provided to

the Board of Bar Overseers in response to a complaint from Pulido,

excerpts of which were included in Pulido's motion. According to 3

Pulido, in the letter Miller stated that he obtained for Pulido

"the option of a drastically reduced sentence" because he was able
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to get the government "to agree not to pursue the upcoming

testimony of the thousand kilos if Pulido pled guilty." Miller

further stated that "[i]f Pulido had waited until the government

witness concluded his direct testimony he would have positively

faced a 30 to life sentence. At this point, he faced a mandatory

15."

Finally, Pulido emphasizes that he admitted to

enhancements for his role in the offense and for abuse of a

position of trust. Pulido contends that he would not have made

these concessions in the absence of a plea agreement with the

government.

Based on our review of Pulido's allegations and the

record, we conclude that Pulido was not entitled to an evidentiary

hearing because his allegations were "contradicted by the record."

Crooker, 729 F.2d at 890 (quotation marks omitted). Pulido's claim

that his former counsel promised him that the government would

recommend a mandatory minimum of fifteen years is contradicted by

his representations to the district court at the change of plea

colloquy:

THE COURT: Now, it's obvious that on his

behalf he's had discussions with the

government and the government through him with

you. I mean, you've talked, there isn't a

bargain, things have been talked about here.

But I take it a recommendation has not been

talked about.

GOVERNMENT: No, your Honor.
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COURT: So you understand that when we come to

sentence you, you don't know, you haven't got

a full-scale plea bargain. There was this

business about them recommending the two

levels off if you plead guilty today and I'll

let the jury go. And while I'm not going to

hold them to that, I really do take that into

account. But that's about the only thing I've

heard on their part. They're going to make

some recommendation what they think is

appropriate under the law. Do you understand

that?

MR. PULIDO: Yes, I do.

THE COURT: So, but for these general

discussions back and forth, this is a, what's

called a straight up plea. You're not pleading

with a plea agreement with the government. Do

you understand that?

MR. PULIDO: Yes, I do. Yes.

THE COURT: So, let me ask you this. Other than

what I've been told and I've just been talking

about, has anybody promised you anything to

get you to plead guilty?

MR. PULIDO: Promised me? No. No, sir.

THE COURT: Well, what were you talking about?

What were you thinking of?

MR. PULIDO: No one's promised me anything,

sir, no.

THE COURT: Well, has anyone suggested to you

what was going to happen to you if you pleaded

guilty? I mean, other than your attorney,

that's absolutely private between you.

MR. PULIDO: No.

THE COURT: But, I mean, has the government

said, look, if you plead guilty [the district

court] will do this or do that?

MR. PULIDO: No, no sir. Nothing like that.
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This exchange shows that Pulido repeatedly denied that there was

any agreement with, or promise by, the government to recommend

anything, let alone a fifteen year sentence. See United States v.

Torres-Rosario, 447 F.3d 61, 67 (1st Cir. 2006) (holding that a

court is "entitled to give weight to [the defendant's] assurances

at his change of plea [colloquy]" absent a "good reason for

disregarding them"); see also Blackledge v. Allison, 431 U.S. 63,

74 (1977) (stating that a defendant's "declarations in open court

carry a strong presumption of verity").

Pulido counters that there is no conflict. Pulido claims

that when the district court asked whether he understood that there

was no plea agreement with the government, he took that to mean

that there was no written plea agreement. In addition, when the

district court asked him, "[h]as the government said, look, if you

plead guilty [the district court] will do this or do that?," he

understood the question as only asking whether the government said

to Pulido the district court "will do this or do that." Thus,

Pulido argues that his "no" answer is consistent with his claim

that it was Miller who told Pulido that the government would

recommend a fifteen year sentence. For the same reason, Pulido

contends that his "no" answer to the district court's question of

whether "anyone suggested to you what was going to happen to you if

you pleaded guilty? I mean, other than your attorney" also does
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not conflict with his claim that Miller relayed to him that he

obtained a fifteen year recommendation from the government.

Although these specific questions and answers do not

contradict Pulido's allegations, the rest of the colloquy, when

read as a whole, shows a conflict. See United States v. Isom, 85

F.3d 831, 835 (1st Cir. 1996) (noting that, on review of the denial

of a motion to withdraw guilty plea, we "review[] the totality of

the circumstances surrounding the Rule 11 hearing, rather than

apply a 'talismanic test.' What is critical is the substance of

what was communicated by the trial court, and what should

reasonably have been understood by the defendant, rather than the

form of communication" (quoting United States v. Cotal-Crespo, 47

F.3d 1, 4-5 (1st Cir. 1995))). As the above quoted exchange shows,

when asked if he entered a "straight up plea," Pulido responded

"yes." When asked if "anybody promised you anything to get you to

plead guilty?" (which the district court asked prior to asking

whether anyone "other than your attorney" promised him anything)

Pulido responded "no," and further stated, after a conference with

Miller, that "[n]o one's promised me anything, sir, no." In

addition, although Pulido interprets the question "has the

government said, look, if you plead guilty [the district court]

will do this or that[?]" to exclude representations from Miller as

to any plea agreement, his answer, "no, no sir. Nothing like

that," suggests that he understood the question much more broadly.
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Thus, when read as a whole, Pulido's representations at the change

of plea colloquy belie his claim that Miller told Pulido that

Miller had secured a recommendation of fifteen years.

Pulido argues that even if the colloquy conflicts with

this claim, he is still entitled to an evidentiary hearing. Pulido

cites case law where we have held that because "most defendants

would be expected to deny any impropriety" during a plea colloquy,

"courts have generally concluded that the Rule 11 record is

'evidential on the issue of voluntariness . . . not conclusive.'"

See United States v. McCarthy, 433 F.2d 591, 593 (1st Cir. 1970)

(citation omitted) (emphasis added). However, as we noted in

Torres-Rosario, a court is "entitled" to rely upon the defendant's

assurances at the colloquy unless "there is good reason for

disregarding them," such as "the case in which both a plea and

colloquy were achieved through undisclosed threats of violence."

447 F.3d at 67. No such "good reason" is alleged in this case.

Moreover, we have typically disregarded representations at a plea

colloquy "only when the allegations were highly specific and

usually accompanied by some independent corroboration." United

States v. Butt, 731 F.2d 75, 80 n.5 (1st Cir. 1984) (citing cases

in the § 2255 context) (emphasis added). As shown below, Pulido's

allegations have no "independent corroboration" to support

disregarding his representations at the change of plea colloquy.
 At oral argument, Pulido contended that the discrepancy between 4

(1) Miller's statement that he was able to get the government "to

agree not to pursue the upcoming testimony of the thousand kilos if

Pulido pled guilty," and (2) the government statements at the

change of plea colloquy that it reserved its right to present

evidence of the additional 1,000 kilograms of cocaine during

sentencing, supports his claim that his guilty plea was not knowing

and voluntary. Pulido argues that this discrepancy shows that

Miller misunderstood the government's position, and thus

misinformed that position to Pulido, such that his plea was not

knowing and voluntary.

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Thus, we not only view his plea colloquy as "evidential," but

sufficiently "conclusive" to contradict his claims.

Pulido points to a letter by Miller to the Board of Bar

Overseers as further substantiating his claims. In particular,

Pulido contends that Miller's statement in the letter that he

obtained "the option of a drastically reduced sentence" supports

Pulido's allegation that Miller obtained a recommendation of a

fifteen year sentence from the government. Not so. The references

that Pulido himself quotes only state that Miller obtained "a

drastically reduced sentence" by getting the government "to agree

not to pursue the upcoming testimony of the thousand kilos if

Pulido pled guilty." Contrary to Pulido's contention, no mention

is made in the letter of Miller obtaining a specific recommendation

from the government, only of preventing the government from

entering additional evidence of drug weight. Likewise Miller's

mention in the letter that Pulido "faced a mandatory 15" does not

support Pulido's allegation that Miller secured a recommendation of

only "15."4
However, that is not the precise claim that Pulido made either

in his motion to withdraw or in his brief. Pulido contended in his

motion and his brief that Miller made a specific misrepresentation

-- that the government would agree to recommend a fifteen year

sentence. Thus, his argument as to this new, broader

"misrepresentation" is arguably waived. See United States v.

Giggey, 551 F.3d 27, 36-37 (1st Cir. 2008) ("[E]xcept in

extraordinary circumstances, arguments not raised in a party's

initial brief and instead raised for the first time at oral

argument are considered waived." (quoting United States v.

Pizarro-Berríos, 448 F.3d 1, 5 (1st Cir. 2006))). More

importantly, Pulido would not have been prejudiced by any such

misrepresentation. As it turned out, the government, in fact, did

not introduce evidence of the additional 1,000 kilograms at

sentencing. See Fed. R. Crim. P. 11(h) ("A variance from the

requirements of this rule is harmless error if it does not affect

substantial rights.").

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Moreover, Pulido's claim that he would not have made

concessions at the change of plea colloquy in the absence of a plea

agreement fails to corroborate his claim. Apart from his explicit

denial of any plea agreement at the change of plea colloquy, there

was an equally strong reason to make such concessions, one

supported by the record -- to prevent the introduction of evidence

at trial that Pulido was responsible for an additional 1,000

kilograms of cocaine. This is confirmed by Miller's statement in

his letter that "[i]f Pulido had waited until the government

witness concluded his direct testimony he would have positively

faced a 30 to life sentence." (emphasis added).

In the alternative, Pulido contends that his guilty plea

was not voluntary and knowing because the district court provided

him misinformation; in particular, that the district court told him

that he faced a minimum sentence of 292 months, but did not include
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the 60 month consecutive sentence for the firearm count. See

United States v. Santo, 225 F.3d 92, 99 (1st Cir. 2000) (holding

that a district court's understatement of the minimum mandatory

sentence because of an error about drug weight warranted withdrawal

of guilty plea).

We disagree. During the plea colloquy the district court

informed Pulido that:

If you plead guilty here today, and all we're

talking about really, the only thing that's

going to make any difference from 360 to life

is whether I'm going to give you a discount

for pleading guilty. They say that if you

plead guilty they'll recommend two levels off

and that takes you down to 292 to 365 in terms

of months.

Here, Pulido contends that the district court neglected to inform

him that the recommended 292 month minimum does not include the 60

month mandatory consecutive sentence under the firearm charge.

However, in prefacing the discussion of this range, the district

court stated:

THE COURT: I'm trying to make clear how I go

about sentencing.

Now, the two levels off can't be off the five

years on the gun charge. They're off the drug

charges, and then the five years goes on and

after because Congress has told me that.

Do you understand that?

MR. PULIDO: Yes.

THE COURT: Now let's get to these. And what

I'm going to ask him to do is, I'm going to

ask him to assume the worst because you're

facing the potential worst. Assume the

enhancements that you say you will agree to
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and assume another thousand kilos is

attributable to you. And then I want him to

tell me, if I factor those things in, and

don't take anything off, what the range is.

(emphasis added). Thus, in discussing the guideline range, the

district court made clear that it was discussing the drug charges

in isolation (what the district court referred to as "these"),

noting that the "five years goes on and after" due to the firearm

charge.

At other times in the change of plea colloquy the

district court also distinguished between the drug charges and the

firearm charge. For example, earlier in the colloquy, the district

court stated "let's talk about the drug charges," going over the

drug quantity Pulido was willing to admit to and Pulido's admission

that he abused a position of trust. The district court then

pivoted and turned to "the gun charge, let's talk about that,"

noting that "I have to add five years on and after" for it. Much

later in the colloquy, in discussing the impact of the Alford plea,

the district court stated to Pulido that "in my mind, though I have

listened to you and I'll hear everything as to the drugs," he

planned to note that Pulido "pleaded guilty to the gun charge,

[where] he gets five years on and after."

Thus, when the colloquy is viewed as a whole, the

district court (1) separated its discussion of the drug charges

from the gun charge, (2) repeatedly represented that it would have

to add five additional years to any sentence due to the firearm
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charge, and (3) only represented a minimum of 292 months with

respect to the drug charges. Although we have acknowledged that

the "guidelines are complicated," see United States v. Yates, 973

F.2d 1, 5 (1st Cir. 1992), we do not find that the district court

misinformed Pulido. Accordingly, the colloquy contradicts Pulido's

assertion that he was, in fact, misinformed.

We conclude by noting that other considerations also

support the district court's denial of Pulido's motion to withdraw

his guilty plea. First, although Pulido entered an Alford plea

with respect to the firearm charge, he did not maintain his

innocence as to his involvement in the two cocaine transactions.

See United States v. Torres-Rosa, 209 F.3d 4, 9 (1st Cir. 2000)

("The absence of an assertion of innocence counsels against

allowing the plea to be withdrawn."). Second, although Pulido

changed counsel between his change of plea and his motion, he did

not provide any reason for the five month delay in filing his

motion. See, e.g., Sousa, 468 F.3d at 46-47 ("Sousa's five month

delay in moving to withdraw his plea also counsels against

permitting withdrawal."); United States v. Rodríguez-León, 402 F.3d

17, 26 (1st Cir. 2005) (three month delay "with no explanation"

supported denial of motion to withdraw guilty plea).

For all of these reasons, we find that the district court

did not commit reversible error in denying Pulido's motion to

withdraw his guilty plea without conducting an evidentiary hearing.
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B. Denial of Motion to Recuse

Pulido also challenges the denial of his motion to recuse

based on the district court's statement in a different, though

related, case, that he was "a thoroughly corrupt police officer."

West, 552 F. Supp. 2d at 83. Defendant contends that this

statement, made prior to his sentencing, required the district

court judge to recuse himself.

Recusals are governed by 28 U.S.C. § 455(a), which

provides that a judge "shall disqualify himself in any proceeding

in which his impartiality might reasonably be questioned."

(emphasis added). The statute "forbids not only the reality of

partiality but its objective appearance as well." United States v.

Snyder, 235 F.3d 42, 45 (1st Cir. 2000) (quoting Liteky v. United

States, 510 U.S. 540, 548 (1994)).

We review a ruling on a motion to recuse for abuse of

discretion, although "in close cases doubts ordinarily ought to be

resolved in favor of recusal." Id. at 46 (quoting In re United

States, 158 F.3d 26, 30 (1st Cir. 1998)). In conducting that

review, this Court will sustain the district court's ruling "unless

we find that it cannot be defended as a rational conclusion

supported by [a] reasonable reading of the record." United States

v. Vázquez-Botet, 532 F.3d 37, 47 (1st Cir. 2008) (internal

quotation omitted).
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This is not a close case. Pulido argues that the

district court's description of him as a "thoroughly corrupt police

officer" in the West sentencing memorandum made it reasonably

apparent to the public -- and to Pulido -- that the judge's mind

was already closed to evidence that might mitigate Pulido's crimes,

thereby mandating the court's recusal. In fact, according to

Pulido, the district court revealed its antipathy towards him

during sentencing when it stated "[Y]ou are one that, in the

conduct related to these crimes, seem[s] utterly without redeeming

qualities."

Although any appearance of partiality is forbidden, the

Supreme Court has held that "opinions formed by the judge on the

basis of facts introduced or events occurring in the course of the

current proceedings, or of prior proceedings, do not constitute a

basis for a bias or partiality motion unless they display a

deep-seated favoritism or antagonism that would make fair judgment

impossible." Liteky, 510 U.S. at 555 (emphasis added). Here, the

district court had the benefit of the West trial, which discussed

Pulido's criminal activities extensively, the guilty pleas of

Pulido's co-defendants, Pizarro and Carrasquillo, the three days of

Pulido's interrupted trial, and Pulido's own change of plea

colloquy, to support its statement that he was a "thoroughly

corrupt police officer." As for the district court's statements

during sentencing, the district court was referring to Pulido's
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"conduct," which the district court had ample evidence to comment

on, and, in any event, the district court had discretion to place

greater emphasis on Pulido's crimes rather than the mitigating

evidence submitted on his behalf. See United States v. Deppe, 509

F.3d 54, 62 (1st Cir. 2007).

Considering the evidence and the pleas reviewed by the

district court, we find no likely appearance of partiality. Thus,

no abuse of discretion occurred.

C. Consideration of § 3553(a) Factors

Pulido also contends that the district court committed

reversible procedural error by failing to consider mitigating

evidence during sentencing. Pulido had submitted as mitigating

evidence a written report of a neuropsychological evaluation which

concluded, among other things, that his conduct was largely due to

his heavy steroid use. Pulido also submitted numerous supportive

letters, police department commendations, and information about

Pulido's educational, employment, and personal history.

After the district court accepted the government's

recommendation, and imposed a twenty-six year sentence, the

district court stated the following:

Now, Mr. Pulido. The crimes of which you

stand convicted are striking in the evil that

they work upon our society. And you are the

author of those crimes. You involved the

other people. You did seek a criminal

life-style. We may talk about averages. We

may talk about other offenders. But you are

the one that, in the conduct related to these
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crimes, seem utterly without redeeming

qualities.

I accept that you were abusing steroids. As

Ms. Conrad argued on your behalf, that's not

an excuse; that does not take away from the

danger to the community that you posed by your

voluntary use of steroids.

This city gave you a badge. It gave you other

equipment, but it gave you a badge. A badge

that stand for during that period your part in

one of the oldest police departments in the

nation.

With that badge it is expected that you have a

sense of duty. A famous American once said

that duty is the noblest word in the English

language. You have no sense of duty. You are

in the commission of these crimes utterly dead

to a sense of duty.

The people who wear that badge have a sense of

honor. We don't speak much about honor in

society today, where we talk mostly about

salaries. But those people have a sense of

honor that goes with that badge.

You are dead to that sense of honor. You are

not one of that number. Your conduct puts you

so far beyond the comradeship of those people

who wear that badge.

This is a fair and just sentence.

The defense later raised the issue that the drug weight here was

not indicative of Pulido's culpability, since he was neither a

buyer or seller. The district court responded "I take it into

account. . . . But it did not particularly resonate with the Court

and played [a] minimal role in my determination of the sentence."

Typically, the reasonableness of a sentence within the

guidelines range is reviewed under the "deferential
 The parties dispute whether the issue is preserved, or whether 5

plain error review applies. Since we find no error, plain or

otherwise, we do not need to resolve this dispute.

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abuse-of-discretion standard." Gall v. United States, 128 S. Ct.

586, 591 (2007). However, "failing to consider the § 3553(a)

factors" constitutes procedural error. Id. at 597. Pulido argues

that the district court failed to consider certain mitigating

evidence related to the § 3553(a) factors, and thus committed

procedural error.5

There was no error. Pulido argues that a fair reading of

the sentencing record as a whole, including the parties' memoranda

and the transcript of the sentencing hearing, demonstrates that the

district court did not consider the mitigating evidence presented

by the defense. See Rita v. United States, 127 S. Ct. 2456, 2468

(2007) ("Where the defendant or prosecutor presents nonfrivolous

reasons for imposing a . . . sentence, . . . the judge will

normally . . . explain why he has rejected those arguments.");

United States v. Scherrer, 444 F.3d 91, 97 (1st Cir. 2006) (en

banc) (Lipez, J., concurring) ("[W]hen the defendant or the

government advances specific arguments for leniency or severity,

grounded in the defendant's history or the circumstances of the

offense, it is reasonable to expect a district court to explain why

those specific arguments are or are not persuasive.").

We disagree with Pulido's reading of the record. As the

above shows, while the district court acknowledged the abuse of
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steroids evidence that Pulido argued mitigated the offense, it did

not find this evidence persuasive. Nor did the district court find

persuasive Pulido's argument that drug weight is not indicative of

Pulido's guilt. Moreover, the district court noted earlier in the

proceeding that it had "read all the letters that have been

submitted save for those that have just been handed to me and I'm

going to take the time to read those." Thus, the record shows that

the district court considered all of the mitigating evidence.

More importantly, we have held that a sentencing court is

not required to address the § 3553(a) factors "one by one, in some

sort of rote incantation when explicating its sentencing decision,"

nor must the court "afford each of the section 3553(a) factors

equal prominence." United States v. Dixon, 449 F.3d 194, 205 (1st

Cir. 2006). Here, the district court chose to emphasize some

factors over others; in particular, it emphasized that (1) the

egregious nature of Pulido's criminal conduct, (2) the fact that he

committed those crimes while a Boston police officer, and (3) the

danger which his crimes posed to society, all warranted a sentence

of twenty-six years. See 18 U.S.C. § 3553(a)(1) (sentence should

reflect the nature and circumstances of the offense and the history

and characteristics of the defendant); id. § 3553(a)(2)(A)

(sentence should reflect the seriousness of the offense, promote

respect for the law, and provide just punishment for the offense);

id. § 3553(a)(2)(B) (sentence should afford adequate deterrence to
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criminal conduct); id. § 3553(a)(2)(C) (sentence should protect the

public from further crimes of the defendant). Thus, we view the

district court's decision as "'entail[ing] a choice of emphasis,

not a sin of omission,' [which] is 'not a basis for a founded claim

of sentencing error.'" United States v. Rodríguez, 525 F.3d 85,

110 (1st Cir. 2008) (quoting Deppe, 509 F.3d at 62); see also

United States v. Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir. 2007)

(en banc) ("[A] court's reasoning can often be inferred by

comparing what was argued by the parties or contained in the

pre-sentence report with what the judge did."). Accordingly, no

procedural error occurred.

D. Imposition of Consecutive Mandatory Minimum

The fourth issue concerns whether it was plain error for

the district court to impose the mandatory minimum sentence for the

firearm count under 18 U.S.C. § 924(c), when Pulido was also

subject to a mandatory ten-year sentence under 21 U.S.C.

§ 841(b)(1)(A) because his offenses involved more than five

kilograms of cocaine. Because Pulido failed to object on this

ground at sentencing, the parties agree that we review for plain

error. See United States v. Olano, 507 U.S. 725, 732 (1993).

18 U.S.C. § 924(c)(1)(A) provides, in relevant part,

that:

Except to the extent that a greater minimum

sentence is otherwise provided by this

subsection or by any other provision of law,

any person who, during and in relation to any
 Since the filing of the briefs, the Second Circuit issued United 6

States v. Williams, 558 F.3d 166 (2d Cir. 2009), which takes the

opposite approach. There, the Second Circuit held that the "except

clause" applied "where the defendant is subject to a longer

mandatory minimum sentence for a drug trafficking offense that is

part of the same criminal transaction or set of operative facts as

the firearm offense." Id. at 168. Pulido argues that Parker was

wrongly decided, and contends that the reasoning of the Second

Circuit in Williams is more persuasive. However, Parker remains

the law of this circuit, and is directly on point.

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crime of violence or drug trafficking crime

. . . uses or carries a firearm, or who, in

furtherance of any such crime, possesses a

firearm, shall, in addition to the punishment

provided for such crime of violence or drug

trafficking crime--

(I) be sentenced to a term of imprisonment of

not less than 5 years . . .

(emphasis added).

In United States v. Parker, 549 F.3d 5 (1st Cir. 2008),

cert. denied, 129 S. Ct. 1688 (2009), we held that the "except

clause" highlighted above did not apply when the defendant was

subject to a mandatory ten-year term of imprisonment "by virtue of

the amount of drugs recovered." Id. at 10-12. In so holding, we

were in accord with the majority of other circuits who have

interpreted the "except clause." See id. at 11 n.4 (citing cases

from the Fourth, Fifth, Sixth, and Eighth Circuits). Because 6

Parker is on point, Pulido cannot show an error, let alone a plain

one, and his claim fails.

III. Conclusion

For the foregoing reasons, we affirm the district court

in all respects.
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Affirmed.