US v. Santiago-Miranda

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Pierre N. Leval, Appellate Judge and Kermit V. Lipez, Appellate Judge. Published. [09-2276]

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Document: 00116247944

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Date Filed: 08/18/2011

Entry ID: 5573605

United States Court of Appeals
For the First Circuit

No. 09-2276
UNITED STATES OF AMERICA,
Appellee,
v.
OMAR R. SANTIAGO MIRANDA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Torruella, Leval,* and Lipez, Circuit Judges.

Rafael F. Castro Lang for appellant.
Idalia Mestey-Borges, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson J. Pérez-Sosa, Chief, Appellate Division, were on brief, for
appellee.

August 18, 2011

*

Of the Second Circuit, sitting by designation.

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LIPEZ,

Circuit

Page: 2

Judge.

Date Filed: 08/18/2011

After

pleading

Entry ID: 5573605

guilty

to

conspiring to possess with intent to distribute significant amounts
of cocaine, crack, and marijuana, Omar Santiago Miranda (Santiago)
moved

to

withdraw

his

plea.

He

argued

that

his

plea

was

involuntary due to his excessive consumption of prescription drugs,
lack

of

sleep,

disorder.

familial

coercion,

and

a

history

of

bipolar

The district court denied the motion and sentenced

Santiago to 380 months in prison.
On

appeal,

Santiago

challenges

the

district

court's

denial of his motion, as well as its decision not to hold an
evidentiary hearing before disposing of the motion. The government
contends that Santiago's appeal is barred by a provision in the
plea agreement waiving his right to appeal.

In the alternative,

the government argues that the motion to withdraw was properly
denied.

We bypass the appellate waiver issue and affirm the

judgment of the district court.
I.
The following facts are taken from the unchallenged
portions of the plea agreement, the change-of-plea colloquy, the
presentence investigation report, and the sentencing hearing. See
United States v. Isom, 580 F.3d 43, 45 n.2 (1st Cir. 2009).
A.

Indictment and Pre-Trial Background
On September 29, 2005, a federal grand jury returned a

nine-count

second

superseding

indictment

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against

twenty-two

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defendants.

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Santiago was named in two counts: Count Five charged

him with conspiring to possess with intent to distribute five
kilograms or more of cocaine, fifty grams or more of crack, and one
hundred kilograms or more of marijuana, in violation of 21 U.S.C.
§ 841(a)(1), and Count Seven charged him with knowingly using,
carrying,

and possessing

a

firearm

in

furtherance

of

a

drug

trafficking crime, in violation of 18 U.S.C. § 924(c)(1) and (2).
B.

Change-of-Plea Hearing
The trial was scheduled to begin March 6, 2007. Santiago

appeared on that date but, instead of proceeding to trial, informed
the court that he wished to plead guilty.

The court proceeded with

a change-of-plea hearing and received Santiago's plea agreement, in
which he pled guilty to Count Five only.

The government and

Santiago agreed that, because he assumed responsibility as an aider
and abettor to a 2004 murder that constituted one of the overt acts
in furtherance of the drug conspiracy, his base offense level was
43.

See U.S. Sentencing Guidelines Manual §§ 2D1.1(d)(1), 2A1.1

(2006).

They also agreed that a clear demonstration of acceptance

of responsibility for the conspiracy offense would merit a threelevel reduction. Based on the resulting total offense level of 40,
the parties agreed that they would recommend a 324-month sentence
if Santiago's criminal history category (CHC) was II, and a 360-

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month sentence if his CHC was any higher.1

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In addition to listing

a number of rights Santiago relinquished by accepting the plea
deal, the plea agreement stated that he "hereby agrees that if this
Honorable Court accepts this Plea Agreement and sentences him
according

to

its

terms

and

conditions,

defendant

waives

and

surrenders his right to appeal the judgment and sentence in this
case."
At the hearing, the court first considered Santiago's
competence to plead, discussing with him his age, his educational
level, and his mental state.
that

mental

state,

we

Because Santiago's appeal focuses on

quote

from

a

portion

of

the

hearing

transcript at length:
THE COURT: How do you feel this afternoon?
THE DEFENDANT:
I feel fine.
THE COURT: Have you taken any drugs, pills, or
medicines within the last 24 hours?
THE DEFENDANT:
No.
THE COURT: Do you realize you're in a courtroom?
THE DEFENDANT:
That is correct.
THE COURT: You're here to change your plea of not
guilty to one of guilty as to Count Five of the
indictment.
THE DEFENDANT:
That is correct.
THE COURT: And do you know what you have been
charged with in Count Five?
THE DEFENDANT:
That is correct.
THE COURT: There is no need for me to read to you
charges at this time?
THE DEFENDANT:
No.
THE COURT: Have you had enough time to consult with
your attorney before this afternoon?

1

The recommended sentences fell at the bottom of the ranges
suggested by the Sentencing Guidelines.
Those ranges were,
respectively, 324 to 405 months and 360 months to life.
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THE DEFENDANT:
That is correct.
THE COURT: Are you satisfied with her services up
to now?
THE DEFENDANT:
Very satisfied.
THE COURT: At this time I find the defendant
competent to plea.
I'm going to continue asking you questions. If you
do not understand my questions, you may ask me to repeat
them to you. If you have any doubts as to the answers
you are to give to my questions, then you may consult
with your attorney who is standing next to you. Do you
understand?
THE DEFENDANT:
I understand.
THE COURT: The reason I'm explaining this to you is
because I'm going to place you under oath, and if any of
your answers to my questions are untruthful, then you may
be subjecting yourself to further charges of perjury or
providing false information while under oath which carry
additional penalties. Do you understand?
THE DEFENDANT:
I understand.
. . .
[Santiago was sworn.]
The court proceeded to inform Santiago of the various rights he
would surrender by pleading guilty, and Santiago confirmed that he
understood and that he still wished to plead guilty.
With

respect

to

coercion,

the

court

asked

whether

"anybody threatened you in any way to induce you to plead guilty,"
and Santiago said, "No one."

The court asked again, "Is anybody

forcing you in any way to get you to plead guilty?," to which
Santiago responded, "No one."

Finally, the court asked whether

anyone had "made any promises or offered you any things of value to
get you to plead guilty," and Santiago again answered, "No one."
The court then reviewed Santiago's plea agreement in
detail, explaining to Santiago that the agreement was not binding
on

the

court,

that

there

was

no final

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stipulation

regarding

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Santiago's CHC, and that Santiago's signature meant that he agreed
that the facts in it were true and accurate.
his

understanding

of

each

of

these

Santiago indicated

points.

The

court

also

explained the waiver of appeal clause:
THE COURT: Paragraph 18 refers to the fact that you
agree that if this Court accepts the Plea Agreement and
sentences you according to its terms and conditions, that
you will be in a position to waive and surrender your
right to appeal the judgment and sentence in this case.
Is that correct?
THE DEFENDANT:
Correct.
THE COURT: But by the same token, do you understand
that if I do not accept the Plea Agreement and I do not
sentence you according to the terms and conditions of the
Plea Agreement, that then you would not waive and
surrender your right to appeal the judgment and sentence
in this case. Do you understand?
THE DEFENDANT:
I understand.
After accepting Santiago's plea, the court scheduled a sentencing
hearing for June 7, 2007.
C.

Presentence Report and Motion to Withdraw Guilty Plea
Following

the

change

of

plea,

the

probation

office

prepared its first draft of Santiago's presentence investigation
report (PSR).
underlying

In addition to describing Count Five and the

offense

conduct,

the

PSR

calculated

the

guideline

sentencing range, listed Santiago's prior criminal convictions, and
established that his CHC was III.

The probation officer also

described Santiago's family and community ties, as well as his
physical condition and drug use.

The officer reported that he had

"not identified any information that would warrant a departure from

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the guidelines or a variance in sentencing pursuant to 18 U.S.C. §
3553(a)."
Copies of the initial PSR were delivered to Santiago's
attorney on May 3, 2007.

On May 11, 2007, she sent a letter

objecting to the report's conclusion that no departure or variance
was warranted.

On May 18, she added an objection that Santiago had

not admitted responsibility for his involvement in the charged
offense.2

The probation officer included the objections and his

responses in an addendum, and corrected the PSR to reflect that
Santiago had not accepted responsibility for the crime.

The final

PSR was completed May 23 and filed with the court May 31.
On May 22, 2007, Santiago filed a motion to withdraw his
guilty plea, arguing that it was involuntary and unknowing due to
his drug abuse, his bipolar disorder, and coercion by family
members to plead guilty.3

Accompanying the motion was Santiago's

statement under penalty of perjury that, on March 6, his aunt and
her husband were present in court and asked him to accept the plea

2

Ordinarily, a defendant who pleads guilty seeks a sentence
reduction for having accepted responsibility for his crime. See
U.S. Sentencing Guidelines Manual § 3E1.1. Santiago's objection to
the PSR's inclusion of such a reduction was thus unusual, and
foreshadowed his motion, filed six days later, to withdraw his
plea.
3

In his motion, Santiago also argued that he had entered his
plea without knowledge of "the nature of the crime and . . . the
consequences [of pleading guilty]."
The court rejected these
arguments in its order denying the motion.
Santiago does not
challenge that aspect of the order or revive the arguments here.
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offer to avoid the risk of a life sentence.

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He also reported that

he had called his mother that day, who asked that he accept the
deal.

According to Santiago, he felt "forced[,] coerced and

pressured by the wish of my family that I plead guilty."

The

statement also said that Santiago had been abusing prescription
medications at the corrections facility for days leading up to and
including March 6, and that he had not slept for several days
before March 6.

Santiago reported being confused, anxious, and

depressed at the change-of-plea hearing, and contended that all of
these conditions rendered his plea involuntary and unknowing.
Finally, he swore that he was never part of the charged conspiracy.
Not surprisingly, the government opposed Santiago's motion.
On December 6, 2007, the government asked the court to
order

a

psychiatric

evaluation

of

Santiago

to

determine

competency to enter a plea of guilty and/or to stand trial.
U.S.C. §§ 4241.

his

See 18

Santiago objected to being moved to a facility in

North Carolina for the examination, and requested that he be
allowed to

have

a

separate examination

performed by

his

own

experts.

The district court ordered that Santiago be taken to a

facility

in

Florida

or

another

suitable

institution

for

an

evaluation of his competency to stand trial, meaning "whether he is

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able to understand the proceedings against him, to consult with his
counsel and aid in his defense."4
In an opinion and order filed April 15, 2008, the court
denied Santiago's motion to withdraw his guilty plea.5

The court

explained that Santiago's description of his mental condition at
the change-of-plea hearing was belied both by his behavior at that
hearing and by the fact that he signed the plea agreement, which
stated that his plea was free and voluntary.

The court also noted

that Santiago, detained since October 7, 2005, had never before
alleged having bipolar disorder. Moreover, in his sworn statement,
Santiago said he was incompetent to enter a plea on March 6 but
would have been competent to stand trial that day.

The court

pointed out the logical inconsistency in this assertion: "Selective

4

The court first issued the order for a competency evaluation
on March 18, 2008. It renewed its instructions in an amended order
on April 11, 2008.
5

It is not clear why the district court issued its order
before receiving the results of the competency evaluation it had
ordered. Santiago considers this to be an abuse of discretion.
However, he also argues that the evaluation was of little or no
value because it addressed only his mental status at the time of
evaluation, not on the day he pled guilty.
In any event, the
district court did not abuse its discretion by denying the motion
without the benefit of the competency evaluation. After the court
ordered the examination, Santiago requested that it be stayed,
arguing that the court's order did not address the issues raised by
the defense. Santiago thought that the order sought an evaluation
of his sanity, and he contended that it was not sanity, but "mental
disease or defect" that was the basis of his motion to withdraw his
plea.
In effect, Santiago argued that the results of the
evaluation would be irrelevant to his motion to withdraw. That
argument alone explains why the district court did not have to wait
for the competency reports.
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competency is a kite that does not fly in our courtroom."

See

United States v. Morrisette, 429 F.3d 318, 322 (1st Cir. 2005)
("Competence to enter a guilty plea is determined by the same
criteria as those governing competence to stand trial: whether the
defendant is able to understand the proceedings and assist his
counsel with a reasonable degree of rationality.").
D.

Sentencing
On July 31, 2009, Santiago appeared for his sentencing

hearing.

He moved again to withdraw his plea, but the court did

not entertain the motion, stating that the issue was "already
resolved."

In response to an inquiry from the court, Santiago's

attorney represented that she had attempted to get her client's
psychological records from a Dr. Rafael Padro Castro, but none had
been

forthcoming.

Because

those

records

were

unavailable,

Santiago's expert had not been able to complete an independent
evaluation.

Before imposing a sentence, the court reviewed the

mental evaluation performed by the Bureau of Prisons personnel,
which the court had received in October 2008, and the final PSR
which, due to Santiago's refusal to accept responsibility, gave a
total offense level of 43.

Santiago spoke at length on his own

behalf, reiterating his innocence and saying that he had not had
enough time to consider the plea agreement before signing it.
Although noting that, based on the newly increased total offense
level of 43 and a CHC of III, the Sentencing Guidelines recommended

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life in prison, the court imposed a sentence of 380 months.
Judgment was entered accordingly on August 17, 2009, and Santiago
filed a notice of appeal the following day.
On appeal, Santiago contends that the district court
erred in denying his motion to withdraw his guilty plea based
solely on his statements at the change-of-plea hearing.

According

to Santiago, his statement under penalty of perjury laid out
sufficient grounds for allowing him to withdraw the plea and, at
the least, necessitated an evidentiary hearing.

The government

counters that Santiago may not pursue this appeal because he waived
his right to do so in his plea agreement and, in the alternative,
that his

assertions

about

the

voluntariness

of his

plea are

unfounded.
We address the merits of Santiago's appeal because his
claim of involuntariness, if successful, would invalidate both the
plea itself and the waiver of his right to appeal.

See United

States v. Lara-Joglar, 400 F. App'x 565, 566 (1st Cir. 2010) (per
curiam) (unpublished).
II.
Under

Federal

Rule

of

Criminal

Procedure

11,

"[a]

defendant may withdraw a plea of guilty . . . after the court
accepts the plea, but before it imposes sentence if . . . the
defendant can show a fair and just reason for requesting the
withdrawal." Fed. R. Crim. P. 11(d)(2)(B); see also Isom, 580 F.3d

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at 52 (same).

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A number of factors bear on whether such a reason

exists, the most important of which is "whether the plea was
voluntary, intelligent, knowing and in compliance with Rule 11."
Isom, 580 F.3d at 52. Other relevant factors include "the strength
of the reasons offered in support of the motion [to withdraw];
whether there is a serious claim of actual innocence; the timing of
the motion; and any prejudice to the government if the withdrawal
is allowed."

Id.

In considering a motion to withdraw a guilty plea, the
district court must hold an evidentiary hearing if the defendant
"alleges facts which, if taken as true, would entitle him to
relief."

United States v. Pulido, 566 F.3d 52, 57 (1st Cir. 2009)

(quoting United States v. González, 202 F.3d 20, 29 (1st Cir.
2000), abrogated on other grounds by Padilla v. Kentucky, 130 S.
Ct. 1473 (2010)).

"[A] defendant is entitled to an evidentiary

hearing unless the facts alleged are 'contradicted by the record or
are inherently incredible and to the extent that they are merely
conclusions rather than statements of fact.'"

Id. (quoting United

States v. Crooker, 729 F.2d 889, 890 (1st Cir. 1984)); see also
United States v. Ramos, 810 F.2d 308, 314 (1st Cir. 1987).
We review both the denial of the motion to withdraw and
the refusal to hold a hearing for abuse of discretion.
F.3d at 52; González, 202 F.3d at 29.

Isom, 580

The facts found to support

the former will be set aside only if they are clearly erroneous,

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Isom, 580 F.3d at 52, a situation that does not obtain "[w]here
there are two permissible views of the evidence," Anderson v.
Bessemer City, 470 U.S. 564, 574 (1985).

"If the district court's

account of the evidence is plausible in light of the record
reviewed in its entirety, the court of appeals may not reverse it
even though convinced that had it been sitting as the trier of
fact, it would have weighed the evidence differently."
States v.

Marrero-Rivera,

124

F.3d

342,

347

(1st

Cir.

United
1997)

(quoting Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152 (1st
Cir. 1990)).

Here, we find no abuse of discretion and no clear

error.
A.

Voluntariness
Santiago argues that he should have been allowed to

withdraw his plea because it was involuntary due to his Xanax use,
lack

of

sleep,

and

familial

pressure.

Pared

down

to

these

suggested impairments, Santiago's appeal resembles that of Hector
Rivera-Martinez,

one

of

the

defendants

Pellerito, 878 F.2d 1535 (1st Cir. 1989).

in

United

States

v.

Like Santiago, Rivera-

Martinez sought to withdraw his plea because it was tendered while
he was "in an agitated emotional state brought on by telephone
conversations with his hospitalized mother (who was also under
indictment)" and because, "while in prison awaiting trial he had
been taking an extensive regimen of prescription drugs[,] . . .

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[which] were for the most part sedatives and anti-anxiety agents."6
Id. at 1541-42.
With respect to the first point, we explained that
Rivera-Martinez "misperceive[d] the focus of the plea-retraction
inquiry: while evidence of this stripe is probative of an accused's
motivation for pleading guilty, it does not necessarily show
coercion, duress, or involuntariness."
original).

Id. at 1541 (emphasis in

"The relevant question for plea withdrawal is not

whether the accused was sensitive to external conditions -- many
defendants are -- but instead whether the decision to plead was
voluntary, i.e., a product of free will."

Id.

With respect to

Rivera-Martinez's second argument, we stated that "[t]he mere fact
that Rivera-Martinez took potentially mood-altering medication is
not sufficient to vitiate his plea.

There must be some evidence

that the medication affected his rationality."

Id. at 1542.

Finding no support for either rationale, we affirmed the denial of
Rivera-Martinez's motion to withdraw his plea.
The circumstances are substantially similar here.

The

district court found that Santiago's claim of involuntariness due
to family coercion, Xanax use, and lack of sleep was contradicted
both by his statements at the change-of-plea hearing and the terms
of the plea agreement he had signed. Specifically, at the hearing,

6

Rivera-Martinez also argued that his trial counsel's
ineffectiveness rendered his plea involuntary and unknowing. We
found those allegations to be baseless. 878 F.2d at 1542-43.
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the court asked Santiago whether anyone threatened him, coerced
him, made any promises to him, or offered him anything of value to
persuade him to plead guilty. Santiago thrice answered, "No one."
Similarly,

the

plea

agreement

included

a

provision

in

which

Santiago "acknowledge[d] no threats ha[d] been made against [him]
and [he was] pleading guilty freely and voluntarily because [he] is
guilty."

In an abundance of caution, the court asked Santiago

about that provision and confirmed with him that the plea was free
and voluntary.

The court's rejection of Santiago's claims of

prescription drug use followed the same analysis, focusing on
Santiago's statements at the change-of-plea hearing that he felt
"fine," and had not taken any drugs, pills, or medicines in the
past twenty-four hours.
Santiago argues that the district court erred in relying
solely upon the statements at the change-of-plea hearing and in the
plea agreement because he was "abdicating his will" to that of his
aunt and her husband, who were present in the courtroom, and
because he could not be expected to admit to drug use that violated
prison rules.

There is some force to Santiago's arguments.

"For

obvious reasons, . . . the defendant's own assurances in open court
[regarding emotional or mental impairment] at the time of the plea
may

be

given

less

weight

if

later

evidence

to

the

contrary

emerges." United States v. Padilla-Galarza, 351 F.3d 594, 598 (1st
Cir. 2003).

Similarly, we recognize that "in cases in which a

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guilty plea has been improperly induced, most defendants would be
expected to deny any impropriety during the Rule 11 hearing."
United States v. McCarthy, 433 F.2d 591, 593 (1st Cir. 1970).
On the other hand, a court is entitled to give weight to
the defendant's statements at his change-of-plea colloquy absent a
"good reason for disregarding them."

United States v. Torres-

Rosario, 447 F.3d 61, 67 (1st Cir. 2006); see also Pulido, 566 F.3d
at 58-59.

Moreover, a defendant's "declarations in open court

carry a strong presumption of verity."

Blackledge v. Allison, 431

U.S. 63, 74 (1977); see also United States v. Alegría, 192 F.3d
179,

186

(1st

Cir.

1999)

("[C]ourts

cannot

operate

on

the

assumption that parties feel free to lie with impunity in response
to

a

judge's

interrogation.").

We

"typically

disregard[]

representations at a plea colloquy 'only when the allegations [of
impairment] were highly specific and usually accompanied by some
independent corroboration.'"

Pulido, 566 F.3d at 59 (alteration

added) (emphasis omitted) (quoting United States v. Butt, 731 F.2d
75, 80 n.5 (1st Cir. 1984)).
"we

not

only

view

his

Without independent corroboration,

plea

colloquy

as

'evidential,'

sufficiently 'conclusive' to contradict his claims."
Santiago's

allegations

were

but

unspecific

Id. at 60.
and

lacked

independent corroboration. The sworn statement was not specific in
that it did not say what drug Santiago was abusing, or in what
amounts, and did not even mention bipolar disorder.

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Santiago's motion stated only that he had a "history" of drug
abuse, and, "If [he] was at the time of the [change of plea] under
the use of prescribed narcotics and undergoing an episode of
significant depression due to his mental and emotional condition[,]
his ability to make a voluntary and knowing determination at the
time he plead[ed] guilty was severely impaired" (emphasis added).
On their face, the motion and accompanying statement said no more
than that Santiago had used some medication that is available by
prescription on March 6, 2007, and that there is a possibility that
such use impaired his ability to plead guilty voluntarily and
knowingly.
There was also no independent corroboration, such as
medical records, prison disciplinary records, or affidavits from
others who witnessed any manifestations of an altered mental state.
See Padilla-Galarza, 351 F.3d at 598-99 (explaining that, without
corroborative

testimony

of

former

attorney

or

psychiatrist,

defendant did "no more on the issue of capacity than raise limited
doubts").

On May 11, 2007, Santiago asked the court for an order

compelling his doctor to produce his medical records.

The court

issued the requested order on May 14, and yet Santiago failed to
produce medical or other records documenting his Xanax use or any
of the other sources of mental impairment alleged in his sworn
statement.

Moreover, according to Santiago, his own aunt kept at

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least some of his medical records, yet none were produced.7
Similarly, he did not submit an affidavit from any family member
corroborating that they had even spoken to Santiago at the changeof-plea hearing, much less that they had urged him to accept the
plea deal.
Santiago's sworn statement was contradicted by the plea
agreement and change-of-plea colloquy, and the district court was
entitled to believe the latter, given no independent corroboration
of the former.

See Pulido, 566 F.3d at 59-60.

Without an

"adequate tender" explaining what Santiago "expected to prove at
any evidentiary hearing, who would be called, what areas would be
covered,

and

why

such

a

hearing

might

productive," a hearing was unwarranted.

be

expected

to

be

United States v. Browne,

318 F.3d 261, 265 (1st Cir. 2003); see also Ramos, 810 F.2d at 314
(holding district court was not required to hold evidentiary
hearing where defendant made "eleventh-hour claim . . . that[] his
emotionally-depressed

state

affected

the

voluntariness

of

his

plea," and court could rely on its own contrary impressions of
defendant, where "record presents no reason to doubt [defendant]'s

7

The PSR states that Santiago's aunt was a psychiatrist and
kept all his medical records. The probation officer obtained this
information not only by interviewing Santiago, but also by visiting
the aunt at her home and confirming Santiago's personal, medical,
and legal background with her. Santiago's trial counsel did not
object to that portion of the PSR.
At oral argument, however,
Santiago's appellate counsel contended that the aunt was not a
psychiatrist and did not have all of his records.
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Case: 09-2276

Document: 00116247944

competence to plead").

Page: 19

Date Filed: 08/18/2011

Entry ID: 5573605

In short, because Santiago's motion and

sworn statement were so lacking in detail and corroboration, the
district court was justified in relying on the change-of-plea
colloquy and signed plea agreement to deny Santiago's motion, and
in doing so without an evidentiary hearing.
B.

Other Factors
Although the inadequacies of Santiago's motion and sworn

statement already discussed are sufficient to dispose of this
appeal, we also note that his claim that he was not a member of the
charged conspiracy "flies in the face of several admissions to the
contrary."

Isom, 580 F.3d at 53.

Not only did Santiago sign the

plea agreement, in which he acknowledged that he was guilty of the
conspiracy charged in Count Five of the indictment and admitted the
truth of the "Stipulation of Facts" section, he also acknowledged
several times under oath at the change-of-plea hearing that he was,
in fact, guilty.
Furthermore, the timing of Santiago's motion to withdraw
his guilty plea is suspect.

See United States v. Torres-Rosa, 209

F.3d 4, 9 (1st Cir. 2000) ("'The timing of a motion to withdraw a
guilty plea often serves as a gauge for measuring the legitimacy of
a proffered reason.'" (quoting United States v. Gonzalez-Vazquez,
34 F.3d 19, 23 (1st Cir. 1994))). Santiago represents that he told
his attorney to file a motion to withdraw the plea on April 19,
2007. Even crediting that assertion as true, the motion was not

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Case: 09-2276

Document: 00116247944

Page: 20

Date Filed: 08/18/2011

Entry ID: 5573605

filed until May 22 -- well after Santiago's attorney received an
unfavorable PSR on May 3.

Not only had the probation officer

identified no factors that would warrant a departure from the
sentencing guidelines or a variant sentence, the PSR also concluded
that Santiago's CHC was III, not II.

At the time he signed the

plea agreement, Santiago was not certain whether his CHC was II or
III, so he could have hoped for a sentence as low as 324 months.
Because the PSR calculated a CHC of III and incorporated Santiago's
failure to accept responsibility, his guideline sentence became
life in prison.

Consequently, the benefit of pleading guilty and

the risk of proceeding to trial dissipated substantially.
These circumstances suggest that it was a recalculation
of risks and benefits -- not involuntariness -- that produced
Santiago's change of heart.

See United States v. Doyle, 981 F.2d

591, 595 (1st Cir. 1992) (stating that defendant's motion to
withdraw filed nearly seven months after proffered reason became
known and only four days after discovery that sentence would be
longer than expected "smacks of post-hoc rationalization").

The

prospect of a longer sentence than anticipated is not a "fair and
just" reason to permit withdrawal of a guilty plea.

Torres-Rosa,

209 F.3d at 9.8

8

The government concedes that it would not be prejudiced by
a withdrawal of Santiago's plea. Santiago receives no benefit from
this concession, however. The prejudice-to-the-government query is
one undertaken "[i]f the combined weight of the[] [other] factors
tilts in the defendant's favor." United States v. Doyle, 981 F.2d
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Case: 09-2276

Document: 00116247944

Page: 21

Date Filed: 08/18/2011

Entry ID: 5573605

In sum, Santiago's uncorroborated sworn statement was
contradicted by the record, and thus the district court did not
abuse its discretion in denying the motion to withdraw and doing so
without an evidentiary hearing.
Affirmed.

591, 594 (1st Cir. 1992).
the opposite direction.

As we explain above, the scales tip in
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