United States Court of Appeals For the First Circuit

No. 20-1144

UNITED STATES OF AMERICA,

Appellee,

v.

DARWIN RAMOS-DAVID,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Kayatta and Barron, Circuit Judges, and Saris, District Judge.

Lydia J. Lizarribar-Masini for appellant. Alexander L. Alum, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá- Almonte, Assistant United States Attorney, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, were on brief, for appellee.

 Of the District of Massachusetts, sitting by designation. October 27, 2021 SARIS, District Judge. Darwin Ramos-David ("Ramos")

pleaded guilty to two armed carjackings, armed robbery, and using

and carrying a firearm in connection with a carjacking. At the

sentencing hearing more than three months after Ramos' plea, his

attorney requested a mental competency examination and moved to

withdraw his plea pursuant to Federal Rule of Criminal Procedure

11, telling the District Court (Domínguez, J.) that the night

before his change-of-plea hearing he was attacked in jail for being

a "snitch" and he found out his mother had suffered a stroke.

Ramos claimed he was confused at his change-of-plea hearing and

felt pressure to plead as a result of these events. The District

Court (Besosa, J.) denied both motions and pronounced a sentence

that was nine months above the sentencing guidelines range. Ramos

appealed the denial of the motions and the sentence. We affirm.

I. BACKGROUND FACTS

We begin with the background facts. On January 3, 2017,

four individuals took a 2008 Toyota Yaris from a woman while she

was opening her trunk; one individual pointed a firearm at her.

She reported the incident to the police. In a lineup on March 30,

2017, she identified Ramos as the perpetrator who took the car

from her at gunpoint. During cooperation discussions with the

local and federal authorities, while he was in state custody, Ramos

maintained that he had not participated in the carjacking. He

claimed the perpetrator was his brother and they looked alike. On

- 3 - April 20, 2017, Ramos was charged in a two-count indictment with

using, carrying and brandishing a firearm during and in relation

to a crime of violence in violation of

(c)(1)(A)(ii); and carjacking under

(1).

He moved to suppress the identification as impermissibly

suggestive on February 22, 2018. On November 26, 2018, Ramos

sought a continuance of the suppression hearing because of ongoing

plea discussions. Another motion to continue the suppression

hearing to complete the plea negotiation process was granted in

mid-December 2018. In late January 2019, Ramos' counsel advised

that Ramos wanted to continue the suppression hearing, which was

rescheduled for April 4, 2019.

On March 21, 2019, the government filed a superseding

indictment, adding another five charges relating to a March 13,

2017 armed robbery of a business and a March 20, 2017 armed

carjacking of a Toyota Tacoma. On May 16, 2019, a second

superseding indictment was filed.

On the day of the arraignment on the second superseding

indictment and the rescheduled suppression hearing, May 23, 2019,

Ramos withdrew his motion to suppress, signed a plea agreement,

and pleaded guilty before a magistrate judge to all of the charges

regarding the January 3, 2017 carjacking, the March 13, 2017

robbery and the March 20, 2017 carjacking (but not to the

- 4 - associated gun charges or the felon in possession charge).1 In

stipulating to the facts supporting his plea and initialing the

facts concerning each charge, Ramos admitted that he had

participated in all three events and that he or those who aided

and abetted him were prepared to cause serious bodily harm to both

carjacking victims if doing so had been necessary to take the

vehicles.

At his plea hearing, the magistrate judge questioned

Ramos about the purpose of the hearing, and Ramos recounted that

it was "to plead guilty for the aforementioned counts and to accept

the time." Ramos said he was satisfied with his legal

representation, and his lawyer said she had no concerns about his

mental competence. The court found him competent to plead. The

court also confirmed that Ramos had reviewed the plea agreement,

called on the government to explain its terms, and verified with

Ramos that he was, in fact, guilty of each of the counts in the

plea agreement. The magistrate judge issued a report and

recommendation to accept the guilty plea, which was adopted by the

district court on July 2, 2019.

The plea agreement provided that the parties would agree

to recommend an 84-month prison term for knowingly using, carrying,

and brandishing a firearm "during and in relation to" the January

Ramos waived his right to have the plea hearing before the 1

district court judge.

- 5 - 3, 2017 carjacking to run consecutively to the term for all of the

other offenses. The pre-sentence report ("PSR") calculated a Total

Offense Level of 25 and a Criminal History Category of III, which

yielded a guidelines range sentence of 70-87 months for the

remaining counts. The plea agreement contained a waiver of appeal

provision if he was sentenced to 162 months or fewer.

At his scheduled sentencing hearing2 more than three

months later, on September 10, 2019, Ramos requested the withdrawal

of his plea. As the district court (Besosa, J.) later summarized,

Ramos claimed that he was

innocent of the charges against him, alleged a discrepancy between his plea and the charges presented to the grand jury, asserted he was beaten up at the jail the day he signed the plea agreement, and noted he learned the day before he signed the agreement that his mother had had a stroke. He also stated that, on the day of the change-of-plea hearing, he was ready for a suppression hearing and was surprised to receive a plea offer.

The court (Domínguez, J.) postponed the sentencing. According to

counsel, she met with Ramos after the hearing, and he was teary

and upset. Two days later, Ramos moved for an expert determination

of his mental condition pursuant to

(b). In his

motion, Ramos repeated the allegations underlying his request for

withdrawal of his guilty plea, stating that the night before he

pleaded guilty, he learned that his mother had suffered a minor

2 Due to sickness of the presiding Judge, the case was transferred to another Judge for sentencing (Domínguez, J.).

- 6 - stroke and inmates beat him because they believed him to be a

snitch. He asserted that those circumstances made him confused

and impaired his understanding during the change-of-plea hearing.

The case was transferred back to the assigned judge (Cerezo,

J.), but it was then transferred to Judge Besosa, whose sentence

and order are on appeal.

In a written opinion, the district court (Besosa, J.)

denied Ramos' motions on December 11, 2019. First, the court noted

that it must order a competency hearing "if there is reasonable

cause to believe that the defendant may presently be suffering

from a mental disease or defect rendering him mentally incompetent

to the extent that he is unable to understand the nature and

consequences of the proceedings against him or to assist properly

in his defense."

(a). Relying on United States

v. Kenney,

(1st Cir. 2014), the court found no

reasonable cause for a mental competency examination based on a

review of the proceedings before the magistrate judge in which

Ramos articulated the purpose of the proceeding, and before the

sentencing judge at the initial truncated hearing where he engaged

in "extended discourse" with the judge. The court also found that

Ramos was not entitled to a withdrawal of his plea because (1)

Ramos' claims of innocence were not credible, (2) an alleged grand

jury error (the indictment initially indicated that he had stolen

the Toyota Tacoma from one woman instead of two) did not affect

- 7 - Ramos' substantial rights, and (3) neither the beating nor his

mother's mild stroke caused coercion, duress or involuntariness.

On January 16, 2020, the district court proceeded to

sentence Ramos. At the hearing, Ramos' attorney confirmed that

his mother had been sick and put forward other mitigating factors

(including his close relationship with his young children). The

government recommended 171 months. The court, after adopting the

PSR, reflected on Ramos' criminal history, which included

"disorderly conduct, use of violence or intimidation against

public authorities, threats, carrying and using a firearm without

a license, and attempted robbery." It stated that it had

considered all of the "3553(a) factors, the elements of the

offenses, the plea agreement, and the need to promote respect for

the law and to protect the public from further crimes by Mr. Ramos,

as well as the need to address the issues of deterrence and

punishment."

The court then pronounced the agreed-upon 84

months for knowingly using, carrying and brandishing a firearm

"during and in relation to a crime of violence" to be served

consecutively to the 96 months for the remaining counts. The

resulting sentence of 180 months was a nine-month variance above

the guideline range.

II. DISCUSSION

On appeal, Ramos argues that the district court erred in

denying his motion for a mental competency examination, in denying

- 8 - his motion to withdraw his guilty plea, and in pronouncing a

sentence that is substantively unreasonable. We consider each

argument in turn.

Mental Competency. "The conviction of a person legally

incompetent to stand trial violates due process." United States

v. Maryea,

(1st Cir. 2013). Thus, Ramos could not

plead guilty "unless he [did] so 'competently and intelligently.'"

Kenney,

(quoting Godinez v. Moran,

(1993)). To safeguard that constitutional guarantee, courts

are required to order a competency hearing on a party's motion or

sua sponte "if there is reasonable cause to believe that the

defendant may presently be suffering from a mental disease or

defect rendering him mentally incompetent to the extent that he is

unable to understand the nature and consequences of the proceedings

against him or to assist properly in his defense."

(a); see United States v. Soldevila-Lopez,

(1st Cir. 1994) (holding that the court must examine whether a

defendant "has sufficient present ability to consult with his

lawyer with a reasonable degree of rational understanding -- and

whether he has a rational as well as factual understanding of the

proceedings against him" (quoting Dusky v. United States,

(1960) (per curiam))).

There is no automatic entitlement to a competency

hearing: to invoke § 4241(a), a "threshold showing" of reasonable

- 9 - cause must be made. United States v. Pellerito,

(1st Cir. 1989). "[C]ompetence to stand trial is a functional

inquiry. A defendant may have serious mental illness while still

being able to understand the proceedings and rationally assist his

counsel." United States v. Widi,

(1st Cir.

2012) (citations omitted). A district court's decision on a motion

for a determination of mental competency is reviewed for abuse of

discretion. See Kenney,

.

In determining whether reasonable cause has been shown

(and thus whether the district court abused its discretion in

denying the mental competency examination), we evaluate multiple

factors including the district court's observations of the

defendant, a review of hearing transcripts to determine if the

defendant was coherent, opinions from medical professionals, the

defendant’s own statements, and defense counsel's "conclusion of

competence" as to whether the defendant was able to assist in his

own defense. Widi,

; see also United States v.

Hurley,

(1st Cir. 1995) ("An experienced trial lawyer

ought to be the first to notice a lack of cooperation or ability

to assist so severe as to raise competency questions."), abrogated

on other grounds by Salinas v. United States,

(1997);

United States v. Sanchez-Ramirez,

(1st Cir. 2009)

(relying on the district court's observations of the defendant's

conduct at trial).

- 10 - In reviewing the proceedings before the magistrate judge

and the initial sentencing judge, the district judge concluded

that Ramos had not established reasonable cause to believe that he

did not understand the nature of his plea or that he could not

have assisted in the plea proceedings. As the government points

out, the record reveals no history of mental health problems, and

counsel raised no question of competency at the three arraignment

hearings or to the probation officer.

Ramos relies on two circumstances in alleging that he

should have been granted a mental competency hearing. First, he

reports that he was beaten up in his jail cell the night before

his plea for being a snitch, which affected his mental state.

Second, Ramos says that he was in distress because he found out

that his mother suffered a stroke the night before his plea.

However, Ramos did not raise these issues at the plea hearing.

Ramos' claim that he did not understand the court or the

proceedings as a result of these events is belied by the record.

Ramos read and signed the plea agreement prior to the plea hearing.

Throughout the plea hearing before the magistrate judge, Ramos

stated that he knew he was in court to plead guilty and to accept

the punishment from his plea. His counsel also confirmed that

Ramos was competent and understood the charges.3 After questioning

3 Counsel states she was not informed of the events of the night before.

- 11 - Ramos about his understanding of the proceedings, asking his

attorney about his competence, and observing his ability to answer

questions coherently, the magistrate judge ruled that "Mr. Ramos

is competent to plead and . . . he's aware of the purpose of the

hearing." Ramos participated actively in his plea hearing,

repeatedly affirming to the court that he understood the agreement

as it was explained. Defense counsel has pointed to no red flags

during the plea colloquy that would support a claim of

incompetence. Finally, the events related—being beaten in jail

and his mother's sudden ailment—bear at most a tenuous connection

to mental incapacity.

Even though Ramos might have felt stressed by the

unfortunate events of the evening before the plea, the court did

not abuse its discretion in determining that he was mentally

competent to enter a plea based on (1) his and his attorney's

statements at the plea colloquy, and (2) the lack of any evidence

that provided the court with reasonable cause to find Ramos

mentally incompetent.

Plea Withdrawal. Federal Rule of Criminal Procedure

11(d)(2)(B) governs a motion to withdraw a guilty plea filed

between the plea colloquy and the imposition of a sentence. See

United States v. Merritt,

(1st Cir. 2014). Under

Rule 11, defendants are not entitled to withdraw their pleas;

instead, they must show a "fair and just reason" for withdrawal.

- 12 -

(quoting Fed. R. Civ. P. 11(d)(2)(B)). In applying that

standard, courts have held that relevant considerations include:

(1) whether the original plea was knowing, intelligent, and voluntary and in compliance with Rule 11, (2) the strength of the reason for withdrawal, (3) the timing of the motion to withdraw, (4) whether the defendant has a serious claim of actual innocence, (5) whether the parties had reached (or breached) a plea agreement, and (6) whether the government would suffer prejudice if withdrawal is permitted.

United States v. Gardner,

(1st Cir. 2021); see

also United States v. Cotal-Crespo,

(1st Cir. 1995).

This court reviews a district court's denial of a motion

to withdraw a guilty plea for abuse of discretion, which "occurs

when a material factor deserving significant weight is ignored,

when an improper factor is relied upon, or when all proper and no

improper factors are assessed, but the court makes a serious

mistake in weighing them." United States v. Adams,

(1st Cir. 2020) (quoting United States v. Soto-Beníquez,

(1st Cir. 2003)) (internal quotation marks omitted).

Based on a review of the factors, we conclude that they

weigh in favor of the district court's decision to deny the motion

for withdrawal.

First, the district court found the magistrate judge

diligently followed the requirements of Rule 11, and Ramos pleaded

guilty in accordance with a plea agreement which he signed or

initialed multiple times. He concluded that the transcript of the

- 13 - plea colloquy "evinces the voluntary, knowing, and intelligent

manner of the plea . . . ." Ramos' claim that he was confused was

properly rejected in light of the extensive colloquy and initialed

plea agreement. A court "typically disregard[s] representations

at a plea colloquy 'only when the allegations [of impairment] were

highly specific and usually accompanied by some independent

corroboration.'" United States v. Santiago-Miranda,

(1st Cir. 2011) (quoting United States v. Pulido,

(1st Cir. 2009)).

Ramos’ claim of lack of voluntariness rests largely on

the physical violence while in jail and stress from familial

circumstances. Assuming these facts to be true, the district court

found that these facts may be "probative of [his] motivation for

pleading guilty, [but they] do[] not necessarily show coercion,

duress, or involuntariness." Santiago-Miranda,

.

We have held that the stress of familial problems, without more,

does not render a plea involuntary. See Adams,

(noting that knowledge of the hardship inflicted on "his ailing

mother and his children" did not "show duress or lack of

voluntariness"); United States v. Caramadre,

(1st Cir. 2015) (explaining that the defendant's depression and

his wife's breakdown did not transform the decision to change his

plea into one lacking free will); Pellerito,

(determining that a defendant’s conversations with his

- 14 - hospitalized mother, despite agitating him, did not render that

defendant's plea involuntary). Nor did Ramos allege that his

guilty plea was coerced by the threats made during the prison

beating. The "beating," it should be noted, left no signs visible

to counsel the following day, did not lead to any medical

treatment, and was not corroborated by any other evidence. Rather,

he believed he was being beaten to punish him for being a "snitch,"

not in order to get him to plead guilty. He denied he was

threatened during the plea colloquy. See Kenney,

(holding that a defendant's answers "carry a strong presumption of

verity" (quoting United States v. Martínez-Molina,

(1st Cir. 1995))).

Next, Ramos argues that the district court arbitrarily

disregarded his claim of innocence as not credible with respect to

the January 3, 2017 incident. "Merely voicing a claim of innocence

has no weight in the plea-withdrawal calculus; to be given weight,

the claim must be credible." United States v. Gates,

,

69–70 (1st Cir. 2013) (finding that a defendant's claim of

innocence was not credible when it contradicted his statements in

the change-of-plea colloquy and when the defendant produced no

evidence to "prompt" the court to reject his prior

representations).

Here, Ramos' protestations of innocence as to the

January 3, 2017 carjacking are directly refuted by the stipulation

- 15 - of facts that he signed as part of his plea agreement, the PSR

that he did not object to, his affirmation to the probation officer

that he was guilty of the crimes to which he pleaded, and his

confirmations during the plea colloquy that he was guilty of the

January 3, 2017 carjacking.

Ramos points to his longstanding claims of innocence and

his refusal to plead multiple times in the past. He claims that

he was taken by surprise by the offer of a plea agreement on the

day of the suppression hearing. But his protestations of surprise

ring hollow as the plea negotiations spanned multiple months. As

evidence of his innocence, he points to his motion to suppress, in

which he stated that the conditions of the lineup identification

were suggestive and thus prone to "mistaken identification." While

this motion may (or may not) have had merit, he abandoned it after

months of plea negotiations: he withdrew it prior to his change-

of-plea hearing after a plea agreement had been signed in which he

admitted involvement in the January 3, 2017 carjacking. Without

any evidence to support the credibility of his claim of innocence,

this factor weighs against Ramos.

The timing factor also weighs against Ramos. The

district court noted that the "the timing of defendant's request

to withdraw his plea weakens his request." Our case law confirms

that conclusion:

- 16 - Because the timing of a defendant's attempted plea withdrawal is highly probative of motive, close scrutiny of the chronology is important in adjudicating whether retraction is fair and just. While an immediate change of heart may well lend considerable force to a plea withdrawal request, a long interval between the plea and the request often weakens any claim that the plea was entered in confusion or under false pretenses.

Doyle, 981 F.2d at 595; see also United States v. Pagan-Ortega,

(1st Cir. 2004) (finding a "two month lag between

the plea hearing and appellant's motion to withdraw place[d] it

well within the area of vulnerability because of untimeliness").

By waiting three months (with opportunities during that

time to tell his attorney he wished to withdraw his plea) and

announcing a desire to withdraw a plea during the sentencing

hearing, Ramos "sap[ped] strength from any proffered reason for

withdrawal." Doyle, 981 F.2d at 595. It is true that the

government has not shown it would be prejudiced if Ramos withdrew

his plea. However, because all the other factors weigh against

withdrawal, absence of prejudice does not tip the balance. We

thus find that the district court did not abuse its discretion

when it denied Ramos' motion to withdraw the plea.

Substantive Reasonableness. By arguing for the lowest

possible sentence, Ramos properly preserved his challenge to the

substantive reasonableness of his sentence. See Holguin-Hernandez

v. United States,

(2020). A sentence that

- 17 - is "greater than necessary" is substantively unreasonable.

at

767 (quoting

(a)).

Substantive reasonableness is reviewed under an abuse of

discretion standard. United States v. Vázquez-Martínez,

(1st Cir. 2016). In considering a sentence's substantive

reasonableness, this court examines "the district court's

contemporaneous oral explanation of the sentence, its near-

contemporaneous written statement of reasons, and what fairly can

be gleaned by comparing what was argued by the parties or proffered

in the [PSR] with what the sentencing court ultimately did."

United States v. Martin,

(1st Cir. 2008) (internal

citations omitted). We keep in mind that "there is not a single

reasonable sentence but, rather, a range of reasonable sentences."

. "[A] major deviation from [the sentencing guidelines]

must ‘be supported by a more significant justification than a minor

one.'"

at 91 (quoting Gall v. United States,

(2007)).

Ultimately, as long as "the sentencing court articulated

'a plausible sentencing rationale' and reached 'a defensible

result,'" the sentence will be upheld. United States v. Matos-

de-Jesús,

(1st Cir. 2017) (quoting Martin,

).

After determining the proper guidelines range, not

challenged by either party, the sentencing court stated that it

- 18 - had considered the statutory factors in

(a). It

then went on to describe Ramos and the crimes he pleaded to,

stating that

Mr. Ramos is 30 years old. He is a resident of Bayamón, Puerto Rico, and has three dependents, ages 13, 10, and 8. He completed the tenth grade and was unemployed at the time he committed the offenses. He is in good physical and mental health. He experimented with marijuana as a teenager but denied any history of drug dependence. This is his third criminal conviction. His prior record involves disorderly conduct, use of violence or intimidation against public authorities, threats, carrying and using a firearm without a license, and attempted robbery. The Court has taken into consideration the elements of the offenses and Mr. Ramos' participation in them. He participated in three robberies, including two carjackings, brandishing a dangerous weapon during one of the carjackings and during the robbery of the Hydroponics of the Caribbean establishment. The Court has also considered all the 18 U.S. Code 3553(a) factors, the elements of the offenses, the plea agreement, and the need to promote respect for the law and to protect the public from further crimes by Mr. Ramos, as well as the need to address the issues of deterrence and punishment.

Ramos contends that the court's explanation did not

justify its imposition of a 9-month upward variance. "[A]

reviewing court must assess the sentencing court's explanation of

an upwardly variant sentence in a practical, common-sense manner.

. . . The extent of the explanation must be commensurate with the

extent of the variance." United States v. Díaz-Lugo,

(1st Cir. 2020). To be sure, the sentencing court's

- 19 - explanation is brief, but the upward variance of nine months (over

171 months) was not substantial. The court predicates its sentence

on Ramos' circumstances, criminal history, and the violent nature

of his three armed robberies among other considerations. The court

properly considered the need to protect the public and to deter

Ramos from committing further crimes. Thus, the sentencing court's

specific reasons for imposing a modest above-the-guidelines

sentence for two carjackings and an armed robbery within a span of

three months complied with § 3553(c) and provided a plausible

rationale. See United States v. Díaz-Arroyo,

, 129-

30 (1st Cir. 2015).

Without much explanation, Ramos contends that the

sentencing court did not adequately take into account mitigating

circumstances. However, the sentencing court indicated its

awareness of the Ramos' personal history and characteristics (like

his children and lack of drug dependence) as required by § 3553(a).

Ramos' real complaint seems to be that the court "weighed those

factors less heavily than he would have liked." United States v.

Rivera-González,

(1st Cir. 2015). A sentencing

court has "wide limits" in the balancing of a defendant’s personal

characteristics,

and these limits were not transgressed here.

Overall, Ramos' sentence was not an abuse of discretion given the

totality of the circumstances.

- 20 - III. CONCLUSION

For the reasons stated above, we find that the district

court did not err when it denied Ramos' motion for a determination

of mental competency and motion to withdraw his plea and pronounced

a sentence that was substantively reasonable.

Affirmed.

- 21 -