United States of America v. Luis Alvarez-Del Prado

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 nine-
millimeter 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

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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.").

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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

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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.").

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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.

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