### * 

## The Honorable Paul A. Magnuson, Chief Judge, Unite d States District Court for the District of Minnesota, sitting by designation. The Honorable Howard F. Sachs, United States District Judge for the Wester n 1 

## District of Missouri. 

# United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 96-1023

_____________ United States of America, * * Appellee, * * Appeal from the United States
v. * District Court for the * Western District of Missouri Cesar F. Morales, * * Appellant. *

_____________ Submitted: March 11, 199 7 Filed: July 15, 1997

_____________ Before McMILLIAN and HANSEN, Circuit Judges, and MAGNUSON, * District Judge.

_____________ McMILLIAN, Circuit Judge.

Cesar F. Morales appeals from a final order entered in the District Court for the Western District of M issouri denying his motion to withdraw

1 a plea of guilty for

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conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846. For reversal, Morales argues that the district court abused its discretion in denying his motion to withdraw his plea of guilty withou t
a hearing on the motion. For the reasons discussed below, we affirm the judgment of the district court.

I. BACKGROUND

In October 1993, a confidential informant introduced an undercove r police officer to a drug dealer named Octavio Pichardo. On November 28, 1993, the undercover officer negotiated with Pichardo to buy five kilogram s of cocaine. The sale was to occur the next day near Kemper Arena in Kansa s City, Missouri. On November 29, 1993, Manuel M oreno-Perez telephonically paged the undercover officer to change the time of the arranged meeting, but later contacted the officer to reschedule th e meeting for the original time. Later that same day, Pichardo telephonically paged the undercover officer to confirm the original time of the meet ing and to inform him that he would arrive in a black Bronco truck.

Underc over officers arrived at the meeting place as scheduled

. Shortlythereafter, Pichardo and Moreno-Perez arrived in a black Bronco. Pic hardo and Moreno-Perez then left and returned, followed by a Mercur y driven by Morales. Pichardo, Moreno-Perez, and Morales did not have the cocaine with them, bu t they agreed to deliver three of the five kilograms of cocaine for a price of $28,000 per kilogram t o a local restaurant later that day. The remaining two kilograms were to be delivered later at the same price. At about 5:30 p.m. Pichardo telepho ned the undercover officer to confirm that they had the three kilograms of cocaine available and the other two kilograms would be available the next day.

The undercover officers arrived at the restaurant and met Pichard o and Moreno-Perez inside. Pichardo and Moreno-Pe rez told the officers that two other people would deliver the cocaine. Shortly thereafter, Victo r Herrera-Sandoval and Dario Garcia-

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Hernandez arrived in the restaurant parking lot in a black Toyota Paseo. As they got out of the Paseo, they opened the trunk by remote control

. Moreno-Perez reached into the trunk and took out three kilograms of cocain e and handed it to the undercover officer. The officers then arreste d Moreno-Perez, Pichard o, Herrera-Sandoval, and Garcia-Hernandez. At about the sa me time, the officers stopped a "counter-surveillance" vehicle i n which Feliciano Ayala-Gil was the driver and Maria Espana-Flores was a passenger. The police found loaded firearms in the "counter-surveillance" veh icle. Pichardo, Ayala-Gil, Espana-Flores, Garcia-Hernandez, an d Herrera-Sandoval were determined to be illegal aliens. Moreno-Perez and Morales were determined to be legal resident aliens.

Her rera-Sandoval and Garcia-Hernandez identified Morales as th e supp lier of the cocaine. Morales was arrested on December 13, 1993

. Morales and the others were charged in a federal indictment with various drug related offenses; Morales was charged only with conspiracy to possess with intent to distribute cocaine, to which he i nitially entered a plea of not guilt y. Morales has no criminal record and does not speak English

. Morales denied that he was the supplier of the cocaine. After th e government informed Morales that Herrera-Sandova l and Garcia-Hernandez had agreed to identify Mo rales at trial as their supplier of cocaine, Morales decided to change his plea to guilty.
At his change of plea hearing, Morales admitted that Moreno-Per ez had contacted him for the purpose of setting up the cocaine sale, and that he had agreed to supply the cocaine to Moreno-Perez. Morales also admitted that he had met with the undercover officers near Kemper Arena to negotiat e the terms of the drug transaction. The district court found that Morales' s guiltyplea had been voluntarily made, there was a factual basis for the plea, and Morales understood the consequences of the plea. Af ter his entering his guilty plea, Morales was interviewed by a probation officer in the preparation of a pre-sentencing report. During the interview Morales denied that

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he was the source of the cocaine and stated that his real intent was to ro b the undercover officers of the "buy money." This information directl y af fected the "acceptance of responsibility" factor of the sentencin g guidel ines. A sentencing hearing was scheduled to gather testimon y regarding his "acceptance of responsibility" and other factors affecting the sentencing guidelines.

At the se ntencing hearing on May 18, 1995, the government disclosed that Garcia-Hernandez, one of the two witnesses who had identified Morales
as the supplier of the cocaine, had been deported to Mexico and was thus not available as a witness. Herrera-Sandoval, the other witness wh o identi fied Morales as the supplier, did testify for the government

. However, the district court found that Herrera-S andoval was not a credible witness. The district court stated that Herrera-Sandoval's testimony that Morales was the source of the cocaine was not believable. United States

v. Morales , No. 4:93CR00171-1 (W.D.Mo. Dec. 18, 1995) (judgment) (statemen t of reasons). Thereafter, Morales sought to withdraw his guilty plea on th e basis that he "mistakenly" pleaded guilty because of his understanding tha t Herrera-Sandoval woul d incriminate him, but Herrera-Sandoval was found to be not credible.

The district court denied Morales's motion to withdraw his guilt y plea. United States v. Morales , No. 93-00171-01 -CR-W-6 (W.D. Mo. Oct. 20, 1995) (district court order denying motion to withdraw plea o n reconsideration). The district court interprete d Morales's argument to be that he could not be guilty of the crime of conspiracy to possess wit h inte nt to distribute because he did not have the requisite intent t o distribute cocaine, but rather, had the intent to steal the "buy money " from the undercover officers. The district cour t reasoned that conspiracy does not require that the defendant personally intend to commit th e substantive offense. Id. at 2. Subsequently, the district court sentence d Morales to five years imprisonment, four years supervised release, and a special assessment of fifty dollars. United States v. Morales , No

. 4:93CR00171-1 (W.D. M o. Dec. 18, 1995) (judgment). This appeal followed.

### -5- II. Discussion

Morales argues that the district court abused its discretion i n denying h is motion to withdraw his guilty plea. Morales argues that h e pleaded guilty to conspiracy to possess with the intent to distribut e
coca ine because he "mistakenly" understood that Herrera-Sandoval woul d incriminate him. Reply Brief of Appellant at 4. Thus, Morales argues tha t he decided to plead guilty because of a "mistake ," and such a "mistake" is
a sufficient basis for a withdrawal of a plea. Morales also argues that he did not have the r equisite intent to commit the substantive offense of distribution of cocaine and therefore cannot be guilty of conspiracy.

We review the district court's denia l of a motion to withdraw a plea for an abuse of discretion. United States v. Newson , 46 F.3d 730, 732 (8t h Cir. 1995 ). "'[A] defendant has no absolute right to withdraw a guilt y plea befor e sentencing,' and the decision to allow or deny the motio n remains within the sound discretion of the trial court." United States v. Prior , 107 F.3d 654, 657 (8th Cir. 1997) (citing United States v. Boone , 869 F.2d 1089, 1091 (8th Cir.), cert. denied , 493 U.S. 822 (1989)) , petition for cert. filed , No. 96-8478 (U.S. Apr. 3, 1997). "[A] defendant may not withdraw his plea [before he is sentence d] unless he shows a 'fair and just reason' under Rule 32(e) [of the Federal Rules of Crimina l Procedu re]." United States v. Hyde , 117 S. Ct. 1630, 1631 (1997). Th e defendant has the burden of proving such a justification. United States v. Prior , 107 F.3d at 657. In determining whether to set aside a plea of guilty, factors to consider are: (1) whether the defendant has demonstrate d
a f air and just reason; (2) whether the defendant has asserted hi s innocence; (3) the length of time between the guilty plea and the motion to withdraw; and (4) whether the government will be prejudiced. Id. Morales r elies on United States v. Nichols , 986 F.2d 1199 (8th Cir. 1993), for the proposition that "mistake" is a proper basis for allowing
a defen dant to withdraw a guilty plea. In that case, this court merel y stated that "several cases allude to 'mistake'

## In explaining the rationale for adding the "fair and just reason" standard to Rul e 2 

## 32(e), the Advisory Committee stated,

[w]ere withdrawal automatic in every case where the defendan t de cided to alter his tactics and present his theory of the case to the jury, the gui lty plea would become a mere gesture, a temporary an d
mea ningless formality reversible at the defendant's whim. In fact , however, a g uilty plea is no such trifle, but a "grave and solemn act, " which is "accepted only with care and discernment." Fed. R. Crim. P. 32(e) advisory committee's note (1983) (citations omitted).

-6- as a basis for allowing a defendant to withdraw a guilty plea." Id. a t 1203 (citations omitted). However, this court then clarified that, i n those cases, "mistake" was the proper basis for the withdrawal of a plea because the defendant did not understand the nature of the offense charged

. Id. In the present case, Morales understood the nature of the offens e char ged; his "mistake" was that he miscalculated the strength of th e government's case against him. Such a "mistake" is not of the type that would be a "fair and just reason" for withdrawal of a guilty plea a s required by Rule 32(e). 2

Often the de cision to plead guilty is heavily influenced by the defendant's appra isal of the prosecution's case against him

. . . [and] judgments may be made that in the light o f later events seem improvident, although they were perfectl y sensible at the time. . . . A defendant is not entitled t o withdraw his plea merely because he discovers . . . after the plea has been accepted that his calculus misapprehended th e qua lityof the [government's] case . . . . [A]bsen t mis representation or other impermissible conduct b y [government] agents . . . a voluntary plea of guilty [is not subject to later attack]. . . .
. . . [There is] no requirement in the Constitution that a defendant must be permitted to disown his solemn admissions in ope n court that he committed the act with which he i s charged simply because i t later develops that the [government] would have had a weaker case than the defendant had thought .

. . .

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Bradyv. United States , 397 U.S. 742, 756-57 (1970). Morales does no t allege that the government intentionally misrepresented any of the evidenc e against him, including the testimony of Herrera- Sandoval. Thus, Morales's "mistaken" understanding of Herrera-Sandoval's testimony is not a proper basis for withdrawal of his guilty plea. Morale s also argues that he lacked the required intent for th e conspiracy charge because he intended to steal t he "buy money" rather than to distrib ute cocaine. Morales argues that he did not understand th e significance of the d ifference between the intent to steal and the intent to distribute cocaine when he pleaded guilty to the crime charged. "To conv ict a defendant of conspiracy, the government must prove

.

. . th ere was an agreement to achieve some illegal purpose, that th e defendant knew of the agreement, and that the defendant knowingly became a part of the conspiracy." United States v. Ber ndt , 86 F.3d 803, 809 (8th Cir. 1996) (citations omitted). "The law in this Circuit is quite clear that an i ndividual becomes a member of a conspiracy when the perso n knowingly contributes his or her efforts in furtherance of the objectives of the co nspiracy." United States v. Bonadonna , 775 F.2d 949, 957 (8t h Cir. 1985) (quoting United States v. Michaels , 726 F.2d 1307, 1311 (8t h Cir. ), cert. denied , 469 U.S. 820 (1984)). Morales admitted that h e attended a meeting with his co-defendants and undercover officers posing as drug buyers on Nov ember 29, 1993, and thus was aware of the conspiracy with intent to distribute cocaine. Morales admitted that he knowingl y participated in negotiations for the sale of kilogram amounts of cocaine to the undercover agents. Morales also admittedthat he agreed to provide Moreno-Perez with the cocaine. Morales thus admitted to the essentia l elements of the crime of conspiracy with intent to distribute cocaine: he
was aware of the conspiracy, agreed to provide a co-defendant with cocaine , and par ticipated in negotiations for the sale of the cocaine, thereb y acting in furtherance of the conspiracy and thus becoming a member of the conspiracy. Morales's alleged secret intention to steal the "buy money" is irrelevant to elements of the crime of conspi racy to which he knowingly and voluntarily

## See United States v. Young , 954 F.2d 614, 619 (10th Cir. 1992) (distinguishin g 3 

## between a defendant's intent and motive for the crime of conspiracy and stating tha t "[d]efendant need not intend topersonally [commit the substantive offense] so long as the conspi racy, which [he] has knowingly joined has the objective of [committing the substantive offense]"); cf. United States v. Smith , 26 F.3d 739, 744 (7th Cir.) ("Joining a distribution conspiracy does not require an agreement to distribute personally."), cert. denied , 513 U.S. 1064 (1994); United States v. Kragness , 830 F.2d 842, 860 (8th Cir. 1987) ("[T]raditional conspiracy law requires only that each defendant agree to join the conspir acy, not that he agree to commit each of the acts that would achieve th e conspiracy's objective.").

-8- pleaded gu ilty. Therefore, we hold the district court did not abuse its 3 discretion in denying Morales's motion to withdraw his guilty plea.

III. Conclusion
Accordingly, the judgment of the district court is affirmed.

A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.