United States Court of Appeals

For the First Circuit

No. 98-2321

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

LUIS ALVAREZ-DEL PRADO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Giménez, U.S. District Judge]

Before

 Boudin, Circuit Judge,

Bownes, Senior Circuit Judge,

and Lynch, Circuit Judge.

David W. Román, with whom Brown & Ubarri were on brief for

appellant.

Nelson Pérez-Sosa, Assistant United States Attorney, with

whom Guillermo Gil, United States Attorney, and Jorge E. Vega-Pacheco,

Assistant United States Attorney, were on brief for appellee.

July 28, 2000
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BOWNES, Senior Circuit Judge. Defendant Luis Alvarez-Del

Prado ("Alvarez") challenges an order of the United States District

Court for the District of Puerto Rico denying his motion to withdraw a

plea of guilty. Finding an adequate plea and no abuse of discretion by

the district court, we affirm.

I. Facts

In June of 1996, two police officers in Santurce, Puerto Rico

observed a gray Chevrolet van traveling in the wrong direction on a

one-way street. The officers stopped the van, and each approached one

side of the van. While one officer interviewed the driver, Jorge

Borges-Rosario ("Borges"), Alvarez, who was in the passenger seat,

attempted to flee. After restraining Alvarez, the officers noticed a

firearm tucked into the passenger seat of the van. The officers

immediately arrested Alvarez and Borges. In addition to the weapon

discovered in the passenger seat (a semi-automatic nine-millimeter

pistol), the officers discovered a .357 revolver and a second ninemillimeter pistol. Inside a box in the van, the officers found

approximately twenty-four kilograms of cocaine. 

The grand jury returned a four-count indictment against

Alvarez and Borges. Count One alleged that, while aiding and abetting

each other, the defendants possessed 24 kilograms of cocaine with the

intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Count Two
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alleged that, while aiding and abetting each other, the defendants

carried three firearms in the course of a drug trafficking crime, in

violation of 18 U.S.C. § 924(c)(1). Count Three alleged possession of

a stolen firearm in violation of 18 U.S.C. §§ 922(j) and 924(a)(2).

Count Four, which applied only to Borges, charged a violation of 18

U.S.C. § 922(g)(1), which bars possession of firearms by convicted

felons. 

On February 3, 1997, Borges pled guilty. At his Rule 11

hearing, Borges stated:

I would like to explain that the owner of all

[the contraband] was myself. Mr. Alvarez Del

Prado has nothing to do with it. He was simply

a passenger that I picked up. He has nothing to

do with these events. He did not know anything

about these events. As a matter of fact[,] I am

pleading guilty because the only guilty person

here is m[e]. Mr. Alvarez Del Prado has nothing

to do with this.

Alvarez, who was represented in the trial court by the same attorney as

Borges, informed the court the same day that he would enter a plea of

guilty. Upon considering the plea offer more fully, however, Alvarez

notified the court that he wished to go to trial. 

After a February 11, 1997 hearing on a motion to suppress

evidence, Alvarez notified the court of his intent to plead guilty. In

accordance with a written plea agreement, Alvarez pled guilty to Counts

One and Three. In return, the government agreed to request dismissal

of Count Two.
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The plea agreement contemplated a three-level reduction of

the base offense level on Count One (which would otherwise have been

34) for acceptance of responsibility, and a two-level enhancement for

possession of a dangerous weapon. According to the plea agreement,

this would yield an adjusted offense level of thirty-three. Alvarez

agreed not to avail himself of the "safety valve" provisions of United

States Sentencing Guidelines Manual § 5C1.2 and 18 U.S.C. § 3553(f)(1)-

(5). Alvarez acknowledged in the agreement that this concession would

result in a sentence of at least 120 months. 

The plea agreement incorporated by reference a statement of

the facts that formed the basis for the charges. The statement, which

both Alvarez and his attorney signed, chronicled the traffic stop, and

listed the contraband seized from the vehicle. It further stated:

"[Alvarez] acknowledges that he was aiding and abetting co-defendant

Borges in possessing the aforementioned controlled substance and

weapons, with full knowledge of the existence and nature of the

contraband and firearms possessed."

On February 28, 1997, Alvarez moved to withdraw his guilty

plea. The district court, in a written opinion, denied the motion.

This appeal followed.

II. Rule 11

Stripped to its essence, Alvarez's argument is that the

district court erred because he could not be guilty of the charged
1 We note that Alvarez appears to make a claim for ineffective

assistance of counsel. As his brief recounts, "Alvarez . . . plead

guilty only because his counsel repeated that the fact that Alvarez was

'merely present' in the van at the time of the arrest[] was enough to

convict him." On the other hand, his brief also states that: "there is

nothing in the case record remotely questioning Alvarez's claim that

his counsel advised him that Alvarez's presence in the van was

sufficient to establish Alvarez's liability." But there is neither

anything to support his claim. We deem this issue preserved, but think

that it is more properly addressed in a post-conviction appeal, as

opposed to the instant direct appeal. See United States v. Woods, 210

F.3d 70, 74 (1st Cir. 2000) ("It is well settled that we will not

entertain an ineffective assistance claim on direct appeal absent a

sufficiently developed evidentiary record.") (internal quotation marks

omitted). 

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crimes because he was merely present at the scene, and that neither the

district court's Rule 11 colloquy, nor Alvarez's counsel put him on

notice that his mere presence did not make him an aider and abetter.1

In precise legal terms, Alvarez makes two claims. First, Alvarez

claims that the district court's failure to ensure that he understood

the elements of the offenses to which he pled guilty rendered his plea

involuntary. See Fed. R. Crim. Proc. 11(c) ("Before accepting a plea

of guilty . . . the court must address the defendant personally in open

court and inform the defendant of, and determine that the defendant

understands . . . the nature of the charge to which the plea is

offered."). Second, he claims that there was no sufficient factual

basis for the plea. See Fed. R. Crim. Proc. 11(f) ("Notwithstanding

the acceptance of a plea of guilty, the court should not enter a

judgment upon such plea without making such inquiry as shall satisfy it

that there is a factual basis for the plea."). 
2 In Isom, we stated, "A court must consider several factors . .

. ." 85 F.3d at 834(emphasis added.). We do not consider here the

question of whether certain factors are mandatory; the question is not

presented because the district court considered those factors mentioned

in Isom. In other words, assuming arguendo that Isom imposes such a

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A. Standard for Withdrawal of Plea

Federal Rule of Criminal Procedure 32 governs the withdrawal

of guilty pleas. When the motion to withdraw is made before

sentencing, "the court may permit the plea to be withdrawn if the

defendant shows any fair and just reason." Fed. R. Crim. Proc. 32(e).

In deciding whether an asserted reason for withdrawal meets the Rule

32(e) standard, the district court must look to the totality of the

circumstances, paying special attention to whether the plea was

knowing, voluntary, and intelligent under Rule 11. See United States

v. Martinez-Molina, 64 F.3d 719, 732 (1st Cir. 1995); United States v.

Cotal-Crespo, 47 F.3d 1, 3 (1st Cir. 1995). The inquiry is essentially

open-ended, however. We have often recognized several other factors

that may enter the decisional calculus of the trial court. These

include "the force of the defendant's proferred reason [for

withdrawal]; the timing of the request; [and] the defendant's assertion

of legal innocence (or the lack of such an assertion)." United States

v. Doyle, 981 F.2d 591, 594 (1st Cir. 1992); see also United States v.

Isom, 85 F.3d 831, 834 (1st Cir. 1996) (citing cases); Cotal-Crespo, 47

F.3d at 3-4. The court may also consider whether there has been a plea

agreement. See Isom, 85 F.3d at 834.2 If the defendant shows
requirement, it has been met.

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sufficient reason for withdrawing the plea, the court must also

consider any possible prejudice to the government. See Isom, 85 F.3d at

834-35; Doyle, 981 F.2d at 594.

B. Standard of Review on Appeal

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

to withdraw a guilty plea only for "demonstrable abuse of discretion."

Martinez-Molina, 64 F.3d at 732 (quoting United States v. Allard, 926

F.2d 1237, 1245 (1st Cir. 1991)). The district court's findings of

fact are reviewed only for clear error, and "we accord considerable

deference to the firsthand assessment ultimately made by the district

court." United States v. Aker, 181 F.3d 167, 170 (1st Cir. 1999)

(quoting United States v. Marrero-Rivera, 124 F.3d 342, 348 (1st Cir.

1997)). 

C. Application

1. Voluntariness

Alvarez argues on appeal that his plea was involuntary

and in violation of Rule 11 because he did not understand the charges

to which he pled. This argument is based on Fed. R. Crim. Proc.

11(c)(1), which states: "Before accepting a plea of guilty . . . the

court must . . . inform the defendant of, and determine that the

defendant understands . . . the nature of the charge to which the plea

is offered." 
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Alvarez's argument, however, is belied by the record below.

In a lengthy Rule 11 hearing, the following colloquy took place:

THE COURT: Do you know what you have been charged

with in Counts 1 and 3?

THE DEFENDANT: Yes, sir.

THE COURT: Is there any need for me to read to

you the charges in Counts 1 and 3 at this time?

[DEFENSE COUNSEL]: Your Honor, we will be waiving

that at this time. It won't be necessary.

The court, however, did not simply take defense counsel's assurances as

definitive. The court addressed the defendant personally:

THE COURT: So, your attorney has stated to the

Court that it won't be necessary. Is that

because you already know what you have been

charged with in Counts 1 and 3?

THE DEFENDANT: Yes, sir.

This discussion notwithstanding, the court later in the hearing read

the relevant counts in the indictment to the defendant. The government

read its statement of facts aloud, and the defendant accepted them.

See United States v. Martinez-Martinez, 69 F.3d 1215, 1220 (1st Cir.

1995) ("If, during the plea colloquy, the government's statement . . .

of the facts sets forth all elements and conduct of the offense,

admission to that conduct sufficiently establishes the defendant's

understanding of the charge.").
3 For factual reasons that we discuss in Part II.C.2 of this

opinion, it does not appear that a "mere presence" defense is

applicable on the facts of this case.

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Alvarez is correct in pointing out that the district court

had an obligation to assure itself that the defendant understood the

law in relation to the facts. As the Seventh Circuit has stated:

This means, among other things, that a defendant

must understand not only the nature of the charge

against him or her, but also that his or her

conduct actually falls within the charge.

Similarly, it means that before pleading guilty

a defendant should be made aware of possible

defenses, at least where the defendant makes

known facts that might form the basis of such

defenses.

United States v. Frye, 738 F.2d 196, 199 (7th Cir. 1984) (internal

citations omitted). In this case, the defendant did nothing whatsoever

to put the trial judge on notice that a possible defense existed.

Instead, he relied, after the plea, on statements made before the plea

by his co-defendant. The trial judge here need not take these

statements of Alvarez's co-defendant as notice that a defense existed,

especially in light of the judge's knowledge that both parties were

represented by the same attorney. To require the judge, on these

facts, to present any possible defenses would be to transform the judge

into a defense attorney.3

2. Factual Basis
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Alvarez claims that the district court erred in accepting the

plea, and then erred again in refusing to allow him to withdraw it

because a factual basis for the plea did not exist. 

Alvarez directs our attention to the decision of the Seventh

Circuit in Nevarez-Diaz v. United States, 870 F.2d 417 (7th Cir. 1989).

In that case, the court held that a plea was invalid where the

defendant admitted only that he was present at the scene of the alleged

crime. Nevarez-Diaz, however, is distinct from the instant case. In

that case,

[T]he record reveal[ed] plainly that Nevarez

either misunderstood the nature of the crimes

with which he was charged or failed to realize

that his mere presence at the scene of the crime

was insufficient to establish his guilt.

Id. at 421. The record in this case is vastly different. The court

had before it a signed statement that read: "[Alvarez] acknowledges

that he was aiding and abetting co-defendant Borges in possessing the

aforementioned controlled substance and weapons, with full knowledge of

the existence and nature of the contraband and firearms possessed." In

Nevarez-Diaz, on the other hand, "Nevarez never admitted to anything

beyond his mere presence at the scene of the crime; he never admitted

that he knew what was happening." Id. 

Two pieces of evidence undercut Alvarez's argument for the

lack of a factual basis. First, the police found a semi-automatic

revolver tucked into the seat in the van in which Alvarez had been
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sitting. Second, toll records from cloned cellular phones seized from

the defendants revealed seven calls between the two phones in the days

leading up to the offense, and two calls on the date of the offense.

These facts severely discredit the contention, first offered by Borges,

that "[Alvarez] was simply a passenger that I picked up." 

In light of the government's statement of facts, to which

Alvarez admitted, combined with the two corroborating facts discussed

above, we cannot find that the district court erred in finding a

factual basis for the plea. 

3. Fair and Just Reason

In deciding whether an asserted reason for withdrawal meets

the Rule 32(e) standard, the crux of the inquiry is whether the plea

was knowing, voluntary, and intelligent under Rule 11. We have

answered this inquiry in the affirmative. With respect to the other

considerations enumerated by this court for district courts to

consider, the court considered them in detail in its written opinion.

Suffice it to say that those considerations cannot, in the light of the

knowing, voluntary and intelligent nature of the factually sufficient

plea, rise to the level of an abuse of discretion in the failure of the

district court to find a fair and just reason for the withdrawal of the

guilty plea.

III. Conclusion
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The district court did not err in finding a factual basis for

the plea, nor did it err in deeming the plea voluntary. The court's

refusal to allow withdrawal of the plea of guilty did not constitute an

abuse of discretion. Affirmed.