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USCA1 Opinion

[NOT FOR PUBLICATION]


UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________

No. 95-1236

UNITED STATES,

Appellee,

v.

AMADOR IRIZARRY-SANABRIA,

Defendant - Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]


___________________

____________________

Before

Torruella, Chief Judge,


___________

Boudin and Stahl, Circuit Judges.


______________

_____________________

J. Michael McGuinness,
______________________

by Appointment

of

the Court,

for

appellant.
Jos
A. Quiles-Espinosa,
________________________
whom Guillermo Gil, United
______________
Sosa,
____

Assistant

appellee.

United

Senior

Litigation Counsel,

States Attorney,

States

Attorney,

with

and Nelson P rez______________


were

on

brief

for

____________________

August 22, 1996


____________________

Per curiam.
Per curiam.
___________

Defendant-Appellant

Amador

Irizarry-

Sanabria

United

pled guilty to conspiracy to

import marijuana into the

States, in violation of 21 U.S.C.

952 & 963.

For the

March of

1993 and

reasons stated herein, we affirm.

BACKGROUND
BACKGROUND

Irizarry-Sanabria

was indicted

pled not guilty

at his

double jeopardy

grounds, premised

conspiracy to import

arraignment.

on a

agreement.

seeking a

support of

1994.

motion to dismiss

on

previous conviction

of

marijuana,1 was denied.

Irizarry-Sanabria entered a change of

a plea

His

in

In

In October

1993,

plea to guilty pursuant to

December 1993, he

filed a pro se motion


_______

withdrawal of that plea; his counsel filed a motion in

the pro se motion


______

The district

and memorandum of law

court denied the

motion to

in February

withdraw plea,

without an

evidentiary hearing.

Irizarry-Sanabria was sentenced

to 121 months imprisonment.

DISCUSSION
DISCUSSION

A.
A.

We

Motion to Withdraw Guilty Plea


Motion to Withdraw Guilty Plea
______________________________

review the

court's refusal

of Irizarry-Sanabria's

motion to withdraw his guilty plea, made prior to sentencing, for

abuse of discretion.

72 (1st Cir. 1992).

the

court that

request.

See United States v. Tilley,


___ _____________
______

To prevail,

he has shown

Irizarry-Sanabria must persuade

a "fair

Fed. R. Crim. P. 32(e).

964 F.2d 66,

and just reason"

for his

We follow an establishedtest:

____________________

His conviction for the

first conspiracy was affirmed by

this

court in United States v. And jar, 49 F.3d 16 (1st Cir. 1995).

_____________

_______

-2-

A court must

consider several factors in

weighing whether

a defendant

meets this

burden,
the

most significant

whether

the

voluntary
the

plea

and

meaning

of which
was

Criminal Procedure] 11.


factors include:
plausibility
reason;

2)

knowing,

intelligent
of [Federal

within
Rule

the

the

timing

of

The other

1) the force

of

is

and

proffered
of

the

request; 3)

whether the

defendant

has asserted

his legal

innocence;

and

4)

whether

the

parties

had

reached a plea agreement.

United States v. Isom, 85 F.3d 831, 834 (1st Cir. 1996)


_____________
____

United States v.
_____________

Cotal-Crespo, 47 F.3d 1, 3-4


____________

(quoting

(1st Cir.), cert.


_____

denied, __ U.S. __, 116 S. Ct. 94 (1995) (citation omitted)).


______

defendant meets the rigors of

this test, we evaluate whether the

government will suffer any demonstrable prejudice.

First, we find,

oral argument,

comprehensive.

See id.
___ ___

and counsel for defendant

that the Rule

If

11 plea colloquy was

Irizarry-Sanabria

argues

that

admitted at

thorough and

his

plea

was

nonetheless not knowing, voluntary and intelligent because it was

made under duress, due to the pressure of his attorney.

However,

during

the colloquy, Irizarry-Sanabria

coerced

to accept

discussed its

satisfied with

terms

acknowledged that

counsel, and

representation.

a plea hearing 'carry a

United States v.
______________

(1st Cir. 1995)

(1977)).

plea bargain,

with

his legal

open court during

verity.'"

the

denied that he

affirmed

that

had been

he had

he

"Such statements

was

in

strong presumption of

Mart nez-Molina, 64
_______________

F.3d 719,

(quoting Blackledge v. Allison, 431


__________
_______

733

U.S. 63, 74

The pro se motion offers nothing more than a conclusory


______

-3-

statement

that the

plea

was

"made under

urgency and

pressure of

this case,"

including Irizarry-Sanabria's

the motion, the

same

counsel.

day if

he

chose, and

confident and

"never showed

any hesitancy or

Order at

6.

commented

proceed to

that he

was

his rights,"

and

reservation about his

have a thorough, comprehensive Rule

of

Irizarry-Sanabria was

knowledgeable of

In

the

In denying

of plea hearing that he could

"alert, calm,

plead guilty."

due to

[co-defendants'] attorneys

district court noted that

informed at the change

trial that

all the

duress,

desire to

these circumstances, where

we

11 colloquy on one hand, and

a naked conclusory claim of duress unsupported by any allegations

of fact on

the other, we find that Irizarry-Sanabria's eleventh-

hour claim of

duress lacks merit, and accordingly

find that his

plea was made knowingly, voluntarily and intelligently within the

meaning of Rule 11.

Our

second factor weighs the force and plausibility of

the proffered reasons.

we briefly

We have already weighed the duress claim;

examine Irizarry-Sanabria's

other asserted

reasons.

First, Irizarry-Sanabria claims he is innocent, and that he could

prove it,

such proof.

without specifying

anything regarding

At the same time,

of

during the change of plea hearing

he corrected the court's account

several times,

the nature

of the events of the conspiracy

clarifying what his

participation had been.

In

such circumstances, we find that the district court did not abuse

its discretion

by "refusing

to give weight

to a

self-serving,

unsupported claim

of innocence."

United States v.
______________

Ramos, 810
_____

-4-

F.2d 308, 313 (1st Cir.

1987) (finding that defendant's claim of

innocence

where

change

lacked merit

of plea

exculpatory

hearing and

evidence); see
___

he did

did not

Isom,
____

85

not

assert innocence

substantiate his

F.2d

at

837

at

claim of

(rejecting

defendant's

pro
se
________

motion

asserting

information was provided regarding

and

innocence

where

no

alleged exculpatory evidence,

defendant provided specific information regarding the events

of the crime at Rule 11 hearing).

Second, Irizarry-Sanabria's claim that

he did not have

access to the files on the case gives us little pause,

thoroughness of the

Rule 11 hearing and the

given the

fact that Irizarry-

Sanabria does not offer any indication of what he expects to find

in the files, or what prejudice

claim that his requests for

presumably, his motion

he has suffered.

Similarly, his

legal assistance "in this matter" --

and claim of innocence and

duress -- had

been to no avail is unconvincing, as his attorney followed up the

pro se motion with a motion in support and memorandum of law.


______

As for

the timing

elapsed between the

of

the motion,

change of plea hearing on

almost two

October 21, 1993,

and Irizarry-Sanabria's pro se motion of December 15,


_______

have

previously

found

defendant's position.2

that

See,
___

such

delay

e.g., Isom, 85
____ ____

months

weighs

F.3d at

1993.

We

against

839 (two-

____________________

Appellant

argues that

Irizarry-Sanabria's

this

measure ignores

take as our measure the date of


of

actually made.

when

that

change of heart undoubtedly occurred at some

time prior to the date of service.

regardless

the fact

the

Nonetheless, in such cases we

the motion to withdraw the plea,

defendant's

subjective

decision

was

See Isom, 85 F.3d at 838-39 (collecting cases).


___ ____

-5-

month delay);

United States
_____________

(1st Cir. 1989) (eight week

F.2d 185, 192

v. Pellerito,
_________

878 F.2d

1535, 1541

delay); United States v. Crosby, 714


_____________
______

(1st Cir. 1983) (eight week

delay), cert. denied,


____________

464 U.S. 1045 (1984).

As for

the final

Irizarry-Sanabria has

mere protestation of

(1st

Cir.

we

claimed his innocence.

note, first,

1983).

of itself be

United States v. Kobrosky, 711


______________
________

Second, the

parties

that

Nonetheless, "the

legal innocence cannot in and

issue-determinative."

455

two factors,

reached

F.2d 449,

plea

agreement, which neither alleges has been broken.

As our

favor

of

analysis of all

the district

whether granting

the

court's

the factors weighs

decision, we

motion would

need

result in

heavily in

not address

prejudice to

the

government before affirming the decision below.

Irizarry-Sanabria asserts that the district court erred

in

denying him an

claims.

evidentiary hearing to

factually bolster his

However, we note that

evidentiary hearings
exception,

not

repeatedly

stated

criminal

hearing
motion.

the

on

of right
a

evidentiary hearing

are the
We

have

even

in

the

defendant

is

not

to an

pretrial

Thus,

heavy burden of

rule.

that,

context,

entitled as

on motions

party

evidentiary
or

posttrial

seeking

must carry

an

a fairly

demonstrating a need for

special treatment.

United States
______________

(citations

v. McGill,
______

omitted).

11

its discretion in

223,

225 (1st

Irizarry-Sanabria's

statements offer us no basis

abused

F.3d

naked

Cir.

1993)

conclusory

for finding that the district court

not holding an

evidentiary hearing on

-6-

his

claims.

See, e.g., Ramos,


___ ____ _____

810 F.2d at

314; Kobrosky, 711


________

F.2d at 457; see also Isom, 85 F.3d at 838 (collecting cases).

________ ____

On

appeal, counsel

for

individuals" are too intimidated by

11 plea colloquy to stop and

coerced

persuade

into pleading

us that

defendant

argues that

"most

the circumstances of a

Rule

tell the court that they have

been

guilty.

the district

Such

court

generalizations

abused its

do

not

discretion in

making its decision -- a

decision "facilitated because the judge

has

proceedings,

overseen

pretrial

inquiries, accepted the original guilty

hand the

reasons bearing upon

F.2d at 1538.

Indeed, the fact

Irizarry-Sanabria

conducted

the

Rule

11

plea, and heard at first

its withdrawal."

Pellerito, 878
_________

that during the Rule 11 colloquy

corrected the court's account of the events on

several points belies the image of a timid defendant.

We are given more pause by appellant's contention, made

at

oral argument, that

a potential conflict

counsel who Irizarry-Sanabria

arises because the

alleges put him under

duress also

helped him litigate the motion for withdrawal of his guilty plea.

However,

in this

circumstance,

where we

have

a complete

detailed plea colloquy, a detailed order denying the

only

the

most sparse

Sanabria, we

discretion,

cannot

allegations

find that

even taking

the

into

on

the

part

motion, and

of

district court

account

the

and

pro se
_______

Irizarry-

abused

nature

its

of

Irizarry-Sanabria's motion.

B.
B.

Double Jeopardy Claims


Double Jeopardy Claims
______________________

Irizarry-Sanabria next

-7-

argues that the

district court

erred in failing to dismiss the indictment against him because he

had previously

conspiracy.

to

been found

He alleges that

guilty in a

case involving

the same

the indictment in this case amounts

prosecuting a single conspiracy as two separate conspiracies,

in violation of his double

that under Local Rule

has waived this

jeopardy guarantee.

510.2 of the

However, we find

District of Puerto Rico,

argument by failing to object

he

to the magistrate

judge's report and recommendation in

the

report and

recommendation warned.

Valencia-Copete,
_______________

notice,

report

792 F.2d

failure to

will

writing within ten days, as

file a

waive the

Drilling Co. v.
____________

4, 6

(1st Cir.

specific

right

See
___

to

United States
_____________

1986) (after

objection to

appeal);

see,
___

McGee, 36 F.3d 143, 151 (1st


_____

v.

proper

magistrate's

e.g.,
____

Henley
______

Cir. 1994); Borden


______

v. Secretary of Health and Human Services, 836 F.2d


________________________________________

4, 6

(1st

Cir. 1987).

Although we acknowledge an appellate court's discretion

to excuse

waiver "in

Arn, 474 U.S.


___

basis

for

the interests of

140, 155 & n.15

such

action

justice," see
___

(1986), in this

because

we

conclude

Thomas v.
______

case we find

that

no

Irizarry-

Sanabria's arguments likely would not

weigh

prevail on the merits.

We

five factors in determining whether two charged conspiracy

are actually one

for double jeopardy purposes:

the timing; the

personnel; the locations involved; the evidence used; and whether

the same statutes

were implicated.

See United States v. G mez___ ______________


______

Pab n, 911 F.2d 847, 860 (1st Cir. 1990), cert. denied,
_____
____________

1074

(1991).

The

only facts

Irizarry-Sanabria

-8-

498 U.S.

points to

in

arguing that

they both

there are two

involve the

distinct conspiracies here

same amount of

marijuana, and

occurred within several weeks of each other.

it was not

the same shipment of

same Colombian supplier,

the

defendant

and

are that

that they

However, given that

marijuana, that it was

not the

that the only common

participants were

confidential informant

Irizarry-Sanabria

introduced to his co-conspirators, and that the importation route

was different, see And jar, 49 F.3d at 18-19 (setting out facts),
___ _______

we

are hard pressed to

see how these

two conspiracies would be

viewed as one.

C.
C.

Other Claims
Other Claims
____________

Irizarry-Sanabria

should have

issues.

However,

his

he does

substantive

process

the

government

these

ultimate fact

Similarly,

rights

he was

were

he

he argues

violated

already convicted

by

of, and

trial court's errors and the cumulative

both without

error, depriving

pointing to any

that these arguments have

under our

"[i]t is

specify what

thereof constituted prejudicial

due process,

extent

due

that

from relitigating

his favor.

conduct that

that the totality of the

his

not

been resolved in

prosecution for

effect

alleges

been collaterally estopped

contends has

that

also

error.

him of

To the

not already been deemed waived

double jeopardy holding,

we now find them

waived, as

not enough merely to mention a possible argument in the

most skeletal way, leaving the court to do counsel's work, create

the

ossature for

the argument,

and

put flesh

on its

bones."

United States v.
______________

Zannino,
_______

895

F.2d 1,

17

(1st Cir.),

cert.
_____

-9-

denied,
______

494 U.S.

1082 (1990); see,


___

e.g., Damon v.
____ _____

Sun Co., 87
_______

F.3d 1467, 1485 (1st Cir. 1996).

CONCLUSION
CONCLUSION

For

the reasons presented

above, the decision

of the

district court is affirmed.


affirmed
________

-10-