[NOT FOR PUBLICATION -- NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals For the First Circuit

No. 98-1919

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

MARK DANIEL MARIN-CANALES,

Defendant, Appellant.

No. 98-1920

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

ALEXANDER RODRIGUEZ-MIRANDA,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge]

Before

Torruella, Chief Judge, Coffin, Senior Circuit Judge, and Lipez, Circuit Judge. Zygmunt G. Sominski on brief for appellant Mark Daniel Marin-Canales. Carmen R. De Jesus on brief for appellant Alexander Rodriguez-Miranda. Camille Velez-Rive, Assistant United States Attorney, Guillermo Gil, United States Attorney, and Jorge E. Vega- Pacheco, Assistant United States Attorney, on brief for appellee.

April 24, 2000 COFFIN, Senior Circuit Judge. Defendants-appellants Mark

Daniel Marin-Canales and Alexander Rodriguez-Miranda request

that this court vacate their pleas of guilty to cocaine

possession charges and challenge various aspects of their

sentences. Finding no errors in the trial court's acceptance of

defendants' guilty pleas or imposition of their sentences, we

affirm.

I. Factual Background

On May 9, 1997, a United States Customs Service airplane

observed a low-flying Cessna 210 aircraft proceeding from South

America into the United States. The aircraft entered the United

States over Ponce, Puerto Rico, and it was pursued to the

vicinity of Cidra, Puerto Rico, although it evaded pursuers by

flying under electrical wires. The Puerto Rico Police

Department received three anonymous calls collectively stating

that a low-flying plane was throwing out bales to a farm in

Cidra where a Mitsubishi Expo van and a BMW waited and that some

of the bales had been placed in the trunk of the BMW. At least

one caller provided the license plate numbers of the vehicles.

The Puerto Rico police first located the BMW, occupied by

Marin and another participant, and upon stopping and searching

it, discovered 28 kilograms of cocaine in the trunk wrapped

identically to the 150 kilograms of cocaine found on the farm.

-4- The van, occupied by Rodriguez and another participant, was

subsequently stopped and two nine-millimeter semi-automatic

pistols were later found by a subcontractor maintaining the

impounded vehicle for the United States Customs Service.

Both defendants entered into plea agreements with the United

States under which they pled guilty to possession with intent to

distribute cocaine, in violation of

(a)(1), in

exchange for the dismissal of other counts.1 In each, there was

no agreement as to the defendant's criminal history category

(CHC). Marin's plea agreement stated that if his CHC were I and

if he qualified for the "safety valve" provision of U.S.S.G. §

5C1.2,2 the pertinent sentencing range would be 87 to 108 months

and the government would recommend 87 months. Rodriguez's plea

agreement stated that if his CHC were I, the applicable

sentencing range would be 168 to 210 months and the government

would recommend 168. Both agreements spoke in terms of

contingencies – in both, the defendant was promised only that

the government would recommend a sentence at the lower end of

1Marin pled guilty to count IV of the five-count indictment, which charged possession of 28 kilograms of cocaine, and Rodriguez pled guilty to count V, which charged possession of 150 kilograms. 2The "safety valve" provision releases the minimum mandatory sentence when a defendant meets certain criteria, including having a CHC of I. See U.S.S.G. § 5C1.2(1).

-5- the applicable range, whatever that might be. Both defendants

agreed that their sentences would be within the sound discretion

of the sentencing judge and would be imposed in accordance with

the Sentencing Guidelines.3

The court accepted defendants' guilty pleas and sentenced

them pursuant to the United States Sentencing Guidelines.

Because Marin's CHC was II, he was not eligible for the safety

valve and the applicable sentencing range was 121 to 151 months.

The court accepted the government's recommendation of a sentence

at the lower end, 121 months. Because Rodriguez's CHC was II,

the applicable sentencing range was 188 to 235 months. The

court accepted the government's recommendation of 188 months.

II. Denial of Rodriguez's Motion to Suppress

Prior to pleading guilty, Rodriguez moved for the

suppression of his warrantless arrest and all evidence flowing

from the arrest, arguing that the arrest was effected without

probable cause in violation of his Fourth Amendment rights.

See Beck v. Ohio,

(1964). The court denied

3 Both agreements explained that "defendant . . . is aware that his sentence is within the sound discretion of the sentencing judge and will be imposed in accordance with the United States Sentencing Guidelines." Marin's plea agreement also declared: "Defendant . . . is fully aware . . . that if his criminal history is greater than I, his sentence will be increased accordingly, and that the Court is not bound by this plea agreement."

-6- Rodriguez's motion and he subsequently entered into the plea

agreement. It is well established that by entering an

unconditional guilty plea, a defendant waives all non-

jurisdictional defects. See Tollett v. Henderson,

(1973) (explaining that after a defendant has pled guilty,

"he may not thereafter raise independent claims relating to the

deprivation of constitutional rights that occurred prior to the

entry of the guilty plea"); Acevedo-Ramos v. United States,

(lst Cir. 1992) ("It is clear that a plea of

guilty to an indictment is an admission of guilt and a waiver of

all non-jurisdictional defects."). Because the issues raised by

Rodriguez are non-jurisdictional, he has waived the opportunity

for appellate review by entering an unconditional guilty plea.4

III. Voluntariness of Defendants' Guilty Pleas

Both defendants seek to have their guilty pleas vacated due

to what they define as defects in the plea hearing proceedings,

allegedly in violation of Fed. R. Crim. P. 11. The advisory

committee's note to Fed. R. Crim. P. 32, which authorizes plea

4After filing his brief, Marin requested that he be allowed to adopt the arguments made by Rodriguez with regard to the motion to suppress. Because Marin was not a party to the motion to suppress, he cannot appeal its denial or raise the issues it presented. See Playboy Enters., Inc. v. Public Serv. Comm'n of Puerto Rico,

(lst Cir. 1990) (arguments not made before district court or raised too late on appeal are waived). Even if he had been a party to the motion, his arguments were waived when he pled guilty, as we have explained.

-7- withdrawal motions, explains that when a defendant moves for the

first time on direct appeal to set aside his guilty plea, "the

applicable standard is that stated in Hill v. United States,

(1962): 'a fundamental defect which inherently results

in a complete miscarriage of justice' or 'an omission

inconsistent with the rudimentary demands of fair procedure.'"

Fed. R. Crim. P. 32 advisory committee's note; see also Fed. R.

Crim. P. 11(h) ("Any variance from the procedures required by

this rule which does not affect substantial rights shall be

disregarded."). We acknowledge, as we did in United States v.

Carrington,

(lst Cir. 1996), that the standard upon

which we base our review of the defendant's request to vacate

his guilty plea is "'somewhat cloudy.'" See

at 5 n.2

(quoting United States v. Martinez-Martinez,

(lst Cir. 1995)). In other cases, we have applied the harmless

error standard. See, e.g., United States v. Parra-Ibanez,

, 598 & n.24 (lst Cir. 1991). Because we find no error

at all in the Rule 11 proceedings, we need not decide this

issue.

We consider primarily four factors when reviewing a request

to withdraw a guilty plea:

(1) the plausibility of the reasons prompting the requested change of plea; (2) the timing of the defendant's motion; (3) the existence or nonexistence of an assertion of innocence; and (4) whether, when

-8- viewed in light of the emergent circumstances, the defendant's plea appropriately may be characterized as involuntary, in derogation of the requirements imposed by Fed. R. Crim. P. 11, or otherwise legally suspect.

United States v. Parrilla-Tirado,

(lst Cir.

1994) (footnote omitted).

Regarding the first factor, defendants proffer no particular

reason for requesting changes of plea, other than alleged

involuntariness. Second, their requests were made thirteen

months after their change of plea hearings and nine months after

sentencing without explanation for the delay.5 We have explained

that "the more a request is delayed – even if made before

sentence is imposed – the more we will regard it with disfavor."

United States v. Isom,

(lst Cir. 1996). Third,

defendants do not assert their innocence, which weights the

balance against allowing them to withdraw their pleas. See

.

Mindful of the fact that defendants start from this

disadvantaged point, we consider the final factor. Our main

concern here is whether defendants' guilty pleas were "knowing,

5Although both defendants filed notices of appeal in June 1998, they did not allege error in the Rule 11 proceedings until filing their March 1999 statement of issues. We recognize that the delay in receiving transcripts hindered some aspects of defendants' arguments with regard to the Rule 11 proceedings, but other aspects – for example, that the plea agreements were misleading – could easily have been identified prior to the receipt of transcripts.

-9- voluntary and intelligent within the meaning of [Federal Rule of

Criminal Procedure] 11." United States v. Cotal-Crespo,

(lst Cir. 1995). Fed. R. Crim. Pro. 11(d) states:

The court shall not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The court shall also inquire as to whether the defendant's willingness to plead guilty or nolo contendere results from prior discussions between the attorney for the government and the defendant or the defendant's attorney.

The rule encompasses three "core concerns": "1) absence of

coercion; 2) the defendant's understanding of the charges; and

3) the defendant's knowledge of the consequences of the guilty

plea."

United States v. Gray,

(lst Cir. 1995).

Furthermore, we review the "totality of the circumstances

surrounding the Rule 11 hearing, rather than apply a 'talismanic

test.'" Cotal-Crespo,

(citation omitted).

A. Rodriguez

Defendant Rodriguez makes only general allegations that the

court erred in accepting his guilty plea and points us to no

specific error. Assuming that he has preserved this argument,

we peruse the Rule 11 proceedings for general error and we find

none. Instead, we discover that the court conducted a

-10- "comprehensive inquiry," akin to that upheld in Isom,

.

The court ascertained that Rodriguez had signed the petition

to change his plea to guilty, had fully answered a plea

questionnaire, and had signed the plea agreement. Rodriguez

responded affirmatively to the court's questions about whether

he had discussed the indictment against him with his counsel,

whether he understood the nature of the charge to which he was

pleading guilty, and whether he understood that he waived

certain fundamental rights by pleading guilty (such as the

rights to remain silent, be assisted by counsel, confront and

cross-examine witnesses against him, present witnesses on his

own behalf, and hold the prosecution to its burden of proving

him guilty beyond a reasonable doubt). After this, Rodriguez

confirmed that he had no doubts about pleading guilty.

Rodriguez affirmatively answered the court's particular

questions about his understanding of the way in which his

sentence would be determined and that a 168 month sentence was

contingent upon a CHC of I. Further, Rodriguez indicated that

he understood that the only agreement was that which was in

writing, that the plea agreement had been translated to him,

that he had not been intimidated, threatened, or coerced in

-11- regard to his guilty plea, and that he pled guilty freely,

willingly, knowingly, and voluntarily.

Thus, the court addressed the three core concerns that must

be considered when a defendant wishes to enter a guilty plea;

the court's questions confirmed that Rodriguez had not been

coerced, that he understood the charges, and that he understood

the consequences of his guilty plea, including sentencing

procedures and possibilities.

B. Marin

Defendant Marin makes more particularized contentions

regarding the Rule 11 proceeding. He asserts that the court

erred by setting deadlines for the filing of a change of plea

petition that created undue pressure on him, making improper

comments during the hearing, failing to correctly apprise him of

the sentence he faced, neglecting to inquire about his failure

to answer three questions on the plea questionnaire, and failing

to order a presentence investigation prior to the acceptance of

his plea.

First, Marin complains about the plea filing deadlines set

by the court pursuant to Fed. R. Crim. P. 11(e)(5). Defendants

were indicted on May 14, 1997, and pled not guilty on that date.

The docket reflects that on January 27, 1998, the court set a

deadline for change of plea petitions of February 4, due to an

-12- impending trial date of February 9. On February 6, Marin filed

his request. In short, Marin had nearly nine months from his

indictment and entry of a not guilty plea until the deadline to

change his plea, the court set a necessary deadline just prior

to trial, and Marin apparently made no effort to seek additional

time.

Second, the specific comments of the court that Marin

complains of, to the effect that he had a good attorney, could

not have indicated to Marin that he would receive a particular

sentence nor could it have coerced Marin's plea in any way. The

court very clearly explained to Marin, and Marin acknowledged

that he understood, that the 87 month sentence would be

applicable only if he had a CHC of I and qualified for the

safety valve. Further, the court asked Marin three times if he

understood that if he failed to comply with the safety valve,

his minimum term of imprisonment would be 120 months, to which

Marin responded affirmatively. Marin relies on United States v.

Padilla,

(7th Cir. 1994), in which we suggested

that the appropriate remedy when a defendant was never informed

on a mandatory minimum was to allow the defendant to withdraw

his guilty plea. See

. In the instant case,

-13- however, the court did apprise defendant of a 120 month minimum,

only one month less than defendant's actual sentence.6

Third, the three questions of the forty-four question plea

questionnaire which Marin failed to answer pertained to whether

he had been coerced, or induced by promises, to enter a plea of

guilty. Nevertheless, at Marin's change of plea hearing, the

court questioned him as to whether he had been intimidated,

coerced, or forced into pleading guilty by anyone, and he

responded negatively.

Fourth, Marin alleges that the court erroneously failed to

order a presentence investigation prior to accepting his plea,

relying on U.S.S.G. § 6B1.1(c), which states that the court

"shall defer its decision to accept or reject any nonbinding

recommendation pursuant to Rule 11(e)(1)(B), and the court's

decision to accept or reject any plea agreement pursuant to

Rules 11(e)(1)(A) and 11(e)(1)(C) until there has been an

opportunity to consider the presentence report." The commentary

6Marin’s argument suggests that of the defendant in United States v. Hernandez-Wilson,

(lst Cir. 1999), in which we agreed with the defendant that the court had misled him to believe that he was eligible for the safety valve provision. See

. In that case, however, the prosecutor, defense counsel, and the court believed the defendant was eligible for the safety valve and the court indicated that if defendant complied with certain conditions he would be eligible for the safety valve, although ultimately his criminal history category prevented him from qualifying. See

.

-14- to the Guideline states that it is intended to parallel Rule

11(e), outlining plea agreement procedure. As the Fourth

Circuit has explained, the Guidelines take this stance in order

to "carry out the Congressional intent that prosecutors do not

undermine the workings of the Sentencing Guidelines." United

States v. Ewing,

(4th Cir. 1992).

In United States v. Sanchez-Barreto,

(lst Cir.

1996), responding to the same argument, we explained that the

flaw in the defendant's argument was that "he offers no reason

for equating acceptance of his guilty plea with the acceptance

of a plea agreement under § 6B1.1(c)." Id. at 24; see also

Ewing,

(same). Here, when accepting Marin's

guilty plea at the change of plea hearing, the court repeatedly

emphasized that his sentence was not definite and would be

determined at his sentencing hearing. By sentencing Marin in

accord with the Sentencing Guidelines, after reviewing his

presentence report, the court fully accepted the plea agreement

at the sentencing hearing. In addition, Marin has not

explained how his interpretation of U.S.S.G. § 6B1.1(c) can be

aligned with Fed. R. Crim. P. 32(b)(3), which prohibits

disclosure of a presentence report unless the defendant has

consented, pled guilty or nolo contendere, or been found guilty,

other than to suggest that requiring the presentence

-15- investigation at the change of plea hearing would benefit the

defendant. See Sanchez-Barreto,

("The overarching

purpose served by the PSR is to assist the district court at

sentencing.").7 The district court's procedure was entirely in

accord with the Sentencing Guidelines as well as the Federal

Rules of Criminal Procedure.

Finally, Marin alleges that his plea was involuntary.

Again, a review of the transcript of the proceedings establishes

that the court engaged in a comprehensive inquiry. Marin

stated, in response to the court's questioning, that he had

completed one year of college, that he had not consumed any

medication or alcohol in the prior twenty-four hours, and that

he understood the proceedings. He acknowledged having an

understanding of the indictment, satisfaction with his counsel's

performance, and awareness of the fundamental rights he was

waiving by pleading guilty. In addition, the court took pains to

explain the sentencing possibilities to Marin, which were laid

out in the plea agreement, and which Marin affirmed that he

understood. Further, the court complied with Fed. R. Crim. P.

7 Marin makes the related argument that the court erred because it accepted the plea agreement before his CHC was determined. As just explained, the court did not accept the plea agreement until sentencing when Marin's CHC was determined. Further, the plea agreement explicitly stated that the parties did not agree on Marin's CHC and based all subsequent sentencing provisions on the contingency that his CHC would be I.

-16- 11(f), contrary to Marin's claims, by determining that there was

a factual basis for his plea. See, e.g., United States v.

Martinez-Martinez,

(lst Cir. 1995) ("If,

during the plea colloquy, the government's statement or the

defendant's own version 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.").

Again, the court addressed the three core concerns – that

Rodriguez had not been coerced, that he understood the charges,

and that he comprehended the consequences of his guilty plea.

In conclusion, we hold that both defendants entered their

guilty pleas knowingly, intelligently, and voluntarily. They

have failed to establish any reason why their guilty pleas

should be withdrawn.

IV. Sentencing

Both defendants assert that the court made various errors

at sentencing. "We have repeatedly stated in the sentencing

context, as well as in other areas, that issues not presented to

the district court will not be addressed for the first time on

appeal." United States v. Haggert,

(lst Cir.

1992). By not raising their arguments before the district

-17- court, defendants have waived many of their arguments.8 The one

exception regards their requests for downward departures in

their criminal history categories. Only when a sentencing

court's decision not to depart is based upon a mistaken view

that it lacks authority do we have jurisdiction to review it.

See United States v. Leblanc,

(lst Cir. 1994).

Both defendants argued to the district court that their CHCs

be reduced to I pursuant to U.S.S.G. § 4A1.3 because their

criminal history categories overrepresented the seriousness of

their criminal pasts and the likelihood of future crimes.

Rodriguez suggested that his CHC of IV was excessive because

several of the convictions were for juvenile offenses or

misdemeanors. The district court agreed with Rodriguez to an

extent, reducing his CHC to II rather than I. In Marin's case,

the court refused to make the departure, stating that the

Guidelines dictated the sentence "unless there is reason to

depart or I find some reason to [grant] a downward departure in

8 Marin complains that the court in effect vacated a binding plea agreement between himself and the prosecutor. This argument is baseless because the plea agreement itself stated that its sentencing recommendations were not binding on the court. Further, the plea agreement did not purport to set a definite sentence in the event that his CHC was not I. Moreover, in the plea agreement, Marin admitted to understanding that if his CHC was not I and he did not qualify for the safety value provision, he would face a minimum mandatory sentence of 120 months.

-18- this case." By making the departure in Rodriguez's case, the

same day that he sentenced Marin, the court revealed its

understanding of its authority. See, e.g., id. (concluding that

sentencing court understood that it had authority to depart

because it entertained the defendant's argument before denying

departure).

-19- V. Ineffective Assistance of Counsel

Lastly, Marin claims that he was denied the effective

assistance of counsel in violation of his Sixth Amendment right.

"We have held with a regularity bordering on the monotonous that

fact-specific claims of ineffective assistance cannot make their

debut on direct review of criminal convictions, but, rather,

must be presented to, and acted upon by, the trial court."

United States v. Mala,

(lst Cir. 1993) (citing

cases). We have allowed exceptions only when the facts are not

in dispute and the record is sufficiently developed for us to

make a reasoned evaluation of the defendant's claims. See

In the instant case, the record is not sufficiently

developed to permit reasoned consideration of Marin's claims.

His allegations, consisting mainly of counsel's failure to

secure a CHC in the plea agreement, to bring attention to

Marin's failure to respond to three questions in the plea

questionnaire, and to seek to set aside Marin's guilty plea

after it became evident that his CHC would be II not I, are

neither based on undisputed facts nor sufficiently developed for

this court to pass judgment on counsel's performance. This

claim must be brought first before the district court via a

request for post-conviction relief.

VI. Conclusion

-20- We hold that the issues raised in Rodriguez's appeal of the

denial of his motion to suppress have been waived. Further, we

deny defendants' requests to withdraw their guilty pleas because

we conclude that they were entered into knowingly,

intelligently, and voluntarily. We also find no errors in the

court's sentencing of defendants. Finally, we dismiss Marin's

ineffective assistance of counsel claim without prejudice.

-21-