United States v. Gonzalez-Arias ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1085
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN ELIAS GONZALEZ-ARIAS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Leo T. Sorokin, U.S. District Judge]
Before
Torruella, Thompson, and Kayatta,
Circuit Judges.
Robert C. Andrews for appellant.
Cynthia A. Young, Assistant United States Attorney, with whom
Andrew E. Lelling, United States Attorney, was on brief, for
appellee.
December 20, 2019
THOMPSON, Circuit Judge. Until the Drug Enforcement
Administration (the DEA) blew the lid off it, Juan Elias Gonzalez-
Arias ran a thriving drug business out of his apartment — 264 East
Haverhill Street, Unit 18, Lawrence, Massachusetts. From those
modest digs, he ordered kilograms of heroin from foreign sources,
processed it, and dealt it to buyers around Massachusetts. But in
July 2015, federal agents swarmed the apartment, search warrant in
hand, and arrested him. Inside, they found a stolen gun, $30,088
in cash, and over a kilo of heroin, along with other narcotics and
tools of the trade (including drug ledgers, scales, and a hydraulic
kilo press). Gonzalez-Arias was indicted and pled guilty to drug
trafficking charges, including conspiracy to distribute one
kilogram or more of heroin, which carried a ten-year mandatory
minimum.1 The district judge sentenced him to 136 months in prison.
On appeal, Gonzalez-Arias offers several arguments —
that the judge should have suppressed the evidence from his
apartment, let him withdraw his guilty plea, appointed him a new
lawyer for sentencing, and set a lower guideline sentencing range.
We'll tackle each claim in turn — and all told, spotting no
reversible error, we affirm.
1 See 21 U.S.C. §§ 841(b)(1)(A), 846. Gonzalez-Arias was also
charged with two counts of distributing heroin (for each of two
undercover buys), and one count of possessing heroin with intent
to distribute it. 21 U.S.C. § 841(a)(1).
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MOTION TO SUPPRESS
Background
In June 2016, when he (finally) settled on a lawyer
(private attorney Scott Gleason),2 Gonzalez-Arias's first order of
business was to move to suppress the cache of evidence seized from
his apartment. In greenlighting the search, the U.S. magistrate
judge relied on an affidavit signed by DEA Special Agent Garth
Hamelin. In it, Hamelin recounted a year-long investigation
(involving wiretaps, video surveillance, and undercover drug buys)
and he explained why his team had reason to believe they'd find
evidence of a crime in Gonzalez-Arias's flat. In pressing a
suppression motion, Gonzalez-Arias claimed that the facts in the
affidavit didn't show probable cause for the search, so (as he
told it), the magistrate judge shouldn't have issued the warrant,
which triggered an unconstitutional search of his apartment. The
judge disagreed and denied the motion to suppress. Gonzalez-Arias
appeals that ruling to us, making the same Fourth Amendment claim.
2 By that time, Gonzalez-Arias had already gone through
several lawyers. First, then-public defender William Fick
represented Gonzalez-Arias at his first appearance. Next,
Gonzalez-Arias retained Steven DiLibero, who replaced Fick. Then,
in November 2015, John Verdecchia and Brian Quirk replaced
DiLibero. In April 2016, both Verdecchia and Quirk withdrew to
make way for Gleason, who stayed on the case until March 2017.
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Law
Under the Fourth Amendment, a search warrant may not
issue without probable cause: a "nontechnical conception" that
relies on "common-sense conclusions about human behavior" and "the
factual and practical considerations of everyday life on which
reasonable and prudent" people act. Illinois v. Gates, 462 U.S.
213, 231 (1983) (citations omitted). Given all the facts alleged
in the DEA's warrant application, there must have been a "fair
probability" — in other words, a "reasonable likelihood" — that
the agency would find "evidence of a crime" in Gonzalez-Arias's
apartment. United States v. Clark, 685 F.3d 72, 76 (1st Cir. 2012)
(quoting Gates, 462 U.S. at 238); see also United States v. Roman,
942 F.3d 43, 51 (1st Cir. 2019) ("The inquiry is not whether 'the
owner of the property is suspected of crime' but rather whether
'there is reasonable cause to believe that the specific things to
be searched for and seized are located on the property to which
entry is sought.'" (quoting Zurcher v. Stanford Daily, 436 U.S.
547, 556 (1978))).
In reviewing a district court's decision to deny a motion
to suppress, we review its legal conclusions afresh ("de novo"),
and its fact findings for clear error. United States v. Ribeiro,
397 F.3d 43, 48 (1st Cir. 2005). That said, we (like the district
court) must give "considerable deference to reasonable inferences
the issuing magistrate may have drawn" from the facts set out in
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the affidavit supporting the DEA's application for the search
warrant, reversing only if the affidavit contained no "substantial
basis for concluding that probable cause existed." United States
v. Zayas-Diaz, 95 F.3d 105, 111 (1st Cir. 1996) (cleaned up);
accord Gates, 462 U.S. at 238–39. And we're not stuck with the
district court's reasons for denying the motion to suppress; we'll
affirm if "any reasonable view of the evidence supports the
decision." Clark, 685 F.3d at 75.
Application
Gonzalez-Arias doesn't dispute there was probable cause
to believe he was part of a drug distribution conspiracy. Nor
could he. DEA agents watched (through pole-mounted cameras and a
GPS tracker on Gonzalez-Arias's car) and listened (via wiretaps)
for over a year as he sold heroin to undercover agents and criminal
associates and talked shop over the phone. Agents heard him
quarterback drug deals and hand-offs, negotiate prices with buyers
and debts to suppliers, and solicit multi-kilo hauls of drugs from
foreign sources. And based on that surveillance, Agent Hamelin's
affidavit colored Gonzalez-Arias a seasoned, high-volume drug
trafficker. For example, in the fall of 2014, he twice sold $2,100
worth of heroin (30 grams per sale) to the undercover agent — and
that was just a preview. During the second sale, he urged the
agent to buy even more — "at least 100 [grams] per week" (emphasis
added) — and suggested he'd sell up to "two kilos" of heroin for
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$70 per gram. And in March 2015, a cohort ordered just that amount
(two kilos) from Gonzalez-Arias and came to his apartment to pick
it up. Just two months later — in his biggest move — Gonzalez-
Arias told his associate to order at least ten kilos from a Mexican
supplier, picked up the first one-kilo shipment himself, borrowed
$20,000 to pay for the drugs,3 then told the associate not to worry
about where they would be stored because he (Gonzalez-Arias) would
"welcome the women" (code for "kilograms of drugs," wrote Agent
Hamelin).
And so, admitting there was "evidence that [he] was
engaged in the drug trade" (and getting an A for understatement),
Gonzalez-Arias takes aim at what we've called the "nexus" element
of the probable cause standard, see United States v. Feliz, 182
F.3d 82, 86 (1st Cir. 1999) (splitting the analysis into two parts:
"probable cause to believe that (1) a crime has been committed —
the 'commission' element, and (2) [that] enumerated evidence of
the offense will be found at the place to be searched — the so-
called 'nexus' element"), urging that "there was no direct
evidence" that he used the apartment at 264 East Haverhill Street
to peddle drugs "in the time period leading up to the search."
3 By the way, that wasn't the first five-figure loan Gonzalez-
Arias took to finance his drug business. Agents later overheard
him discussing another $20,000 debt to an overseas supplier.
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This sally stumbles out the gate. A magistrate
"interpreting a search warrant affidavit in the proper
'commonsense and realistic fashion'" may find "probable cause to
believe that criminal objects" are in "a suspect's residence" even
if there's no "direct evidence": that is, even if agents or their
informants never spotted the illicit objects at the scene. Id. at
88 (quoting United States v. Ventresca, 380 U.S. 102, 108 (1965)).
Rather, she may glean the link from circumstantial evidence,
including the "type of crime" suspected and "normal inferences"
about "where a criminal would hide [the] evidence" sought, combined
with more "specific observations" (like bustle in and out before
and after drug deals) identifying the residence as a probable hub
or haven for criminal transactions. Roman, 942 F.3d at 51–52
(quoting Feliz, 182 F.3d at 88 and Ribeiro, 397 F.3d at 50–51).
And such evidence abounded here.
For starters, common sense and experience teach that a
big-time drug-mover like Gonzalez-Arias needs somewhere to keep
his drug money, books, and spoils. See Feliz, 182 F.3d at 87–88
(finding it "reasonable" to think — based on "common sense,
buttressed by [an] affiant's opinion as a law enforcement officer"
— that a "long-time," multi-kilo-level "drug trafficker" would
need to keep detailed accounts, customer lists, and money in a
"safe yet accessible place" like his home). And here, Agent
Hamelin (who had thirteen years of DEA experience) wrote in his
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affidavit that traffickers like Gonzalez-Arias need to keep
records (e.g., balance sheets listing the considerable money he
owed foreign drug sources), proceeds from sales (like cash and
jewelry), paraphernalia (think scales, sifters, packaging, and
heat-sealing devices), and weapons in "secure locations . . . for
ready access" and to hide them from police. Though such
"generalized observations" are rarely enough to justify searching
someone's home, Roman, 942 F.3d at 52 (quoting Ribeiro, 397 F.3d
at 50), they're still factors a judge can weigh in the balance,
United States v. Rivera, 825 F.3d 59, 64–65 (1st Cir. 2016).
Against that backdrop, Gonzalez-Arias's calls and
movements strongly suggested that 264 East Haverhill Street was
the hub of his drug operation and, therefore, a natural place to
store his drugs, records, and tools. For example,
 For the first controlled buy, he left the apartment
complex nine minutes before he handed the
undercover agent 30 grams of heroin at the Loop
Mall in nearby Methuen, making it unlikely he
stopped along the way.
 On March 27, 2015, the morning after discussing the
two-kilo deal with Gonzalez-Arias, a co-conspirator
pulled up to Gonzalez-Arias's building, told him to
"[o]pen up," and left with a green bag.
 A few weeks later, Gonzalez-Arias told another
cohort (who'd asked, "Is that ready?") that he was
"making" two batches of heroin to fill an order,
and that he was "coming," minutes before he emerged
from the apartment building and drove to a
rendezvous in a nearby parking lot.
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 Lastly, about a month before the warrant issued,
Gonzalez-Arias called his associate from that same
East Haverhill Street building and arranged to pick
up the first kilo of the ten-kilo Mexican shipment.
We've "repeatedly" found probable cause to search a
defendant's home when agents spotted him "leaving the home
immediately prior to selling drugs" elsewhere. United States v.
Barnes, 492 F.3d 33, 37 (1st Cir. 2007). And in Rivera, even when
the defendant stopped at a stash house before moving on to the
deal, we found probable cause to search his apartment because he
was "a long-time, high-volume drug dealer" and used the place "as
a communications point to further his drug crimes" (he made calls
from there to set up the deals). 825 F.3d at 64. As in Rivera
and Barnes, that Gonzalez-Arias made his illicit business calls
and processed the drugs at the East Haverhill Street building,
often minutes before he handed them off to buyers and associates,
suggested that he kept the ingredients, processing tools, and
records there, along with the weapons to protect them.
Hoping to slice the baloney just thin enough, Gonzalez-
Arias argues that even if the drug dealing traced back to 264 East
Haverhill Street (a three-story, multi-unit building), there was
"only the most tenuous evidence linking [him] to the apartment
that was searched" (unit 18) "rather than just some unit" in that
building. Moreover (he adds), by the time agents applied for the
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warrant in July 2015, "the evidence of controlled buys had grown
stale, with the most recent" one "happening over 7 months" earlier.
But neither claim cuts it. Four months before they asked
for the warrant, agents overheard Gonzalez-Arias order a food
delivery to 264 East Haverhill Street and tell the delivery person
to buzz apartment 18. Maybe he was eating with a neighbor. But
there was at least a "fair probability" that Gonzalez-Arias was
ordering food from the same unit he used to stage his drug deals.
Remember, the government need not make a beyond-a-reasonable-doubt
or even a more-likely-than-not showing to establish probable cause
for a search. See Rivera, 825 F.3d at 63; Feliz, 182 F.3d at 87.
As for the staleness issue, we've long recognized that
drug trafficking operations on this scale take time to develop —
they "often germinate over a protracted period of time" — so
"information that might otherwise appear stale may remain fresh
and timely during the course of the operation's progression."
United States v. Tiem Trinh, 665 F.3d 1, 14 (1st Cir. 2011) (citing
United States v. Schaefer, 87 F.3d 562, 568 (1st Cir. 1996)).
Well-networked, well-sourced, and well-settled drug peddlers like
Gonzalez-Arias aren't likely to close up shop (and toss all the
goods, papers, and tools in it) just a month after ordering ten
kilos of product. Gonzalez-Arias's drug calls and related trips
from his home base right up to the month before the warrant issued
were fresh evidence that the illicit items remained in the flat.
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See Feliz, 182 F.3d at 87 (where two controlled buys three months
before warrant issued weren't stale, given that defendant's drug
operation was "continuous and ongoing").4
For those reasons, the district court did not err when
it denied the motion to suppress.
GUILTY PLEA
Background
After the judge refused to suppress the trove of evidence
found in Gonzalez-Arias's apartment, his attorney (still Gleason)
began plea talks with the government. By January 2017, the lawyers
had drafted a plea agreement, and the judge scheduled a "Rule 11"
(read: guilty plea) hearing. But when the time came (at the
hearing on Thursday, January 5, 2017) Gonzalez-Arias was not
prepared to sign it. Gleason relayed that his client "wishe[d] to
plea, but he believe[d] that the weight of the drug that's involved
in this case" was "one to three kilos," and not "as high as 3.9
4 The DEA affidavit also alleged probable cause to believe
Gonzalez-Arias was violating the immigration laws and secreted
"birth certificates and other identity documents" in his
residence. Gonzalez-Arias also complains, for the first time on
appeal, that the affidavit did not show probable cause that
incriminating immigration paperwork would be found in the
apartment, or provide any basis to search for storage unit or real
estate records (which were also sought). Since he does not
identify any "good cause" to consider these unpreserved grounds
for suppression, we don't consider them. See Fed. R. Crim. P.
12(c)(3).
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kilos," as the government argued. The drug weight claim, Gleason
said, was Gonzalez-Arias's "sole contention." "But he would be
willing to plea" if the government agreed the drug weight was 1–3
kilos.5 So the judge proposed to postpone the hearing until the
following Monday to let the parties think it over.
But before the hearing ended, Gonzalez-Arias (through
Gleason) told the judge "that he ha[d] not seen the evidence, and
he want[ed] more time to be able to review [it]." Well (he
clarified), the government gave all the evidence to his lawyer,
and he'd seen most of the paper (like the reports from the lab
testing the drugs, the drug ledgers recovered from his apartment,
and the police reports). But he hadn't seen those caught-on-
camera moments — the surveillance video of his two hand-to-hand
drug deals with the undercover agent, or of him and his co-
5 "[A] defendant is responsible for drugs he personally
handled or anticipated handling, and . . . for drugs involved in
additional acts that were reasonably foreseeable by him and were
committed in furtherance of the conspiracy." United States v.
Sepulveda, 15 F.3d 1161, 1197 (1st Cir. 1993). The drug weight
for which the defendant is "responsible" in turn determines the
"base offense level" used to fix his guideline sentence. See
U.S.S.G. § 2D1.1(c). So if the court found at sentencing that
Gonzalez-Arias handled, planned to handle, or should have foreseen
his co-conspirators handling 3.9 kilos of drugs, his offense level
would have been higher (32 levels) than if he was only accountable
for 1–3 kilos (30 levels), raising his guideline range. See id.
And a higher guideline range might have affected Gonzalez-Arias's
sentence. See Gall v. United States, 552 U.S. 38, 49 (2007)
(explaining that "[t]he Guidelines should be the starting point
and the initial benchmark" for deciding the sentence). Hence the
hullabaloo.
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defendant coming and going when the deals went down (captured on
the camera mounted on the telephone poll outside his apartment).
These were still being "processed" by the jail. Plus, he hadn't
heard the audio recordings of the intercepted phone calls or read
the transcripts of them. So the judge told Gleason to bring that
evidence to the jail so Gonzalez-Arias could watch and listen.
Gleason pledged to do so that weekend.
But he didn't follow through. At the hearing that
Monday, Gleason reported that he'd been "unable to get [the
evidence] put together for Sunday," when he'd visited the jail, so
Gonzalez-Arias still hadn't reviewed the tapes. Gleason added
that he had, however, talked the government down to 1–3 kilos of
drug weight, sweetening the plea agreement. At first, Gonzalez-
Arias still wasn't having it. When Gleason finished giving the
judge updates, Gonzalez-Arias passed him a letter and asked Gleason
to read it to the judge. In it, Gonzalez-Arias protested that his
prior lawyer had advised him he was only on the hook for 850 grams
(putting him below the one-kilo trigger for the ten-year mandatory
minimum). When Gleason finished reading the letter aloud, he
corrected his client: in fact (he reminded), agents found two
stashes of heroin (around 600 grams in a coffee bag and 680 grams
in plastic zip-lock bags) in Gonzalez-Arias's apartment. And he'd
shown Gonzalez-Arias the lab reports that showed those weights.
To confirm, he pulled both reports from his briefcase and showed
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them to Gonzalez-Arias in court. Meanwhile, the government told
the judge (and the defense) that it would withdraw the plea deal
and "seek[] to prove in excess of three kilograms of heroin against
the defendant" unless he pled that day. With the drug reports in
front of him, and the government's plea offer about to lapse,
Gonzalez-Arias relented; he told the judge that he wished to plead
guilty.
Once Gonzalez-Arias made his choice, the judge moved on;
he described the charges, their elements, the possible penalties
(including the ten-year minimum and twenty-year maximum under the
plea agreement), Gonzalez-Arias's trial rights (which he'd give up
by pleading guilty), the plea agreement, and the sentencing
process. And he told Gonzalez-Arias he could not "withdraw [his]
plea of guilty" if he got "a sentence that [was] longer than [he]
expect[ed]." Gonzalez-Arias said he understood. The government
then summarized the evidence against him, telling the story of the
"long investigation," using "telephone intercepts, pole camera
surveillance, and physical surveillance," that caught Gonzalez-
Arias "discussing" and "entering" multiple drug deals. Gonzalez-
Arias admitted that was true. He was "pleading guilty because [he
was] in fact guilty," he agreed. And he did so "freely and
voluntarily." By the way, he was "fully satisfied" with Gleason's
work.
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A few months later, Gonzalez-Arias changed his tune. In
a March 24, 2017 letter to the judge, he wrote that he was
dissatisfied with Gleason's work and asked to have his first lawyer
(William Fick) back.6 While that request was pending (on March
27, 2017), all the evidence in the case (including the tapes)
arrived at the jail, and Gonzalez-Arias had watched and listened
to it within a week.
The judge held a prompt (March 29, 2017) hearing to
discuss the request for new counsel. After talking with his
client, Gleason elaborated that Gonzalez-Arias thought that
Gleason "ha[d]n't been able to do anything for him" and "that the
ten-year minimum mandatory [was] something that he could have
gotten himself." The judge told him he couldn't appoint Fick, who
was now in private practice, but (finding Gonzalez-Arias indigent)
he agreed to appoint another lawyer from the federal public
defender's office, Timothy Watkins.
Seven more months passed. In the interim, Watkins
changed jobs, and a third public defender, Scott Lauer, took over
as lead counsel with a research and writing attorney, Samia
Hossain, as co-counsel.
6 In his letter, Gonzalez-Arias complained that Gleason hadn't
communicated with him since he'd pled guilty two months prior, had
given him "misleading information," and cited mostly Massachusetts
cases in his motion to suppress, even though "[f]ederal law governs
the admissibility of evidence in federal prosecutions," United
States v. Charles, 213 F.3d 10, 19 (1st Cir. 2000).
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About two weeks before his scheduled sentencing,
Gonzalez-Arias (through Lauer and Hossain) moved to withdraw his
guilty plea. He argued that his plea hadn't been knowing or
intelligent because he hadn't seen or heard the surveillance tapes
when he pled. And without them, he couldn't "reconcile the varying
accounts he had received" from his lawyers "regarding the drug
weight." Moreover (he said), the plea hadn't been voluntary. The
government had threatened to take the deal off the table if he
didn't plead guilty by the end of the day. And given the
government's impatience, Gleason had urged him to cop. Pressured
from both sides, Gonzalez-Arias "felt compelled" to plead guilty
without hearing or seeing the recordings. What's more, he added,
Gleason's failure to share the evidence "even after repeated
instructions from th[e] [c]ourt," and his failure to "press the
government" for more time to do it, constituted ineffective
assistance of counsel.
After a hearing, the judge denied the motion. First, he
found that "no one threatened" or "coerced" Gonzalez-Arias to plead
guilty. He'd admitted as much under oath, and the government had
the right to time-limit its plea offer. Second, after "a careful
and lengthy colloquy," Gonzalez-Arias had sworn he understood the
charges, their elements, his trial rights, the plea agreement, the
ten-year minimum and twenty-year maximum, and the other
consequences of his conviction. In fact, "[h]e focused like a
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laser on the drug weight," showing he "underst[ood] that greater-
than-one kilogram meant at least ten years in jail." He'd also
understood the evidence. He'd heard and agreed to the government's
summary of it. And "the mere fact, if it [was] a fact, that he
did not personally review all of [that] evidence" beforehand did
"not undermine" the plea. Even after he reviewed all of the
discovery with his new counsel, "[n]owhere in his [motion to
withdraw] d[id] he identify anything specific in the
discovery . . . that [was] causing him to want to withdraw his
plea." Based on all that, the judge found that there was "no fair
and just basis under Rule 11 [to allow Gonzalez-Arias] to withdraw
the plea."
Gonzalez-Arias now appeals that decision, which we
review for abuse of discretion. See United States v. Pellerito,
878 F.2d 1535, 1538 (1st Cir. 1989).
Law
A defendant has no "absolute right" to take back his
guilty plea before sentencing. United States v. Caramadre, 807
F.3d 359, 366 (1st Cir. 2015). Instead, he must persuade the trial
court that there's a "fair and just reason for requesting the
withdrawal." Id. (quoting Fed. R. Crim. P. 11(d)(2)(B)). This
depends on several factors. Most critically — since a guilty plea
waives a slew of rights (to remain silent, to have a jury trial,
and to confront accusers) — it must be voluntary, knowing, and
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intelligent. See United States v. McDonald, 121 F.3d 7, 11 (1st
Cir. 1997); see also Boykin v. Alabama, 395 U.S. 238, 243 n.5
(1969). These "core concerns of [Federal Rule of Criminal
Procedure] 11" are "the most important factors to consider" on a
motion for plea withdrawal. United States v. Isom, 580 F.3d 43,
52 (1st Cir. 2009); see also United States v. Allard, 926 F.2d
1237, 1244 (1st Cir. 1991) (explaining that the Rule 11 procedure
aims to ensure that the defendant understands the charge and the
consequences of the plea). The other factors are the defendant's
reasons for withdrawal; the timing of the request; whether he
credibly claims innocence; and whether unwinding the plea would be
unfair to the government. United States v. Gates, 709 F.3d 58,
68–69 (1st Cir. 2013). The judge may also factor in whether there
was a "plea agreement" that "gained something for the defendant."
United States v. Aker, 181 F.3d 167, 170 (1st Cir. 1999).
Application
On appeal, Gonzalez-Arias urges that the judge should
have let him withdraw the guilty plea for two reasons. We'll take
each in turn.
a. Ineffective Assistance of Counsel
First, he urges, as he did below, that he pled guilty
without the effective assistance of counsel (and therefore
involuntarily) since Gleason failed to bring him the video/audio
evidence before the government's plea-deal offer lapsed.
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Defendants making such a claim — "that deficient legal
representation contributed to their 'mistaken' guilty pleas" —
must "meet the accepted tests for ineffective assistance [of
counsel] before being allowed to withdraw pleas on this basis."
Pellerito, 878 F.2d at 1537–38. So Gonzalez-Arias needed to show
that Gleason's performance "fell below an objective standard of
reasonableness" and that "there is a reasonable probability that,
but for [Gleason's] error[ ]" (i.e., if he'd shared the
surveillance evidence on time), Gonzalez-Arias "would not have
pleaded guilty and would have insisted on going to trial." Hill
v. Lockhart, 474 U.S. 52, 57–59 (1985) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)).
Even if Gleason's slip-up was constitutionally deficient
(and we don't decide if it was), Gonzalez-Arias's ineffective
assistance claim fails at the second step; there's no "reasonable
probability" that he would've turned down the plea deal if he'd
seen and heard the surveillance tapes and recordings earlier.
Thinking rationally (and no one suggests he wasn't), he had to
understand he'd likely lose at trial (the judge and prosecutor
explained the trove of evidence — including the surveillance
footage, and the stash in his apartment — and Gleason showed him
the lab reports spelling out drug types and weights more than once
before he pled guilty). And if the jury did convict, he'd face an
80-months-higher guideline prison sentence than he'd face if he
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pled guilty.7 That explains why, at the first (aborted) Rule 11
hearing, he said he "wishe[d] to plea[d]" guilty and was only hung
up on the drug weight. The revised plea deal, which he signed the
next week, gave him the only thing he held out for: the government
agreed to the 1–3 kilo weight. See U.S.S.G. § 2D1.1(c)(4). And
the surveillance offered no reason to think he could do better.
Far from an ace in the hole for the defense, the tapes featured
him quarterbacking two- and ten-kilo drug deals — evidence the
government could have used to get a higher sentence. See id.
(increasing the defendant's guideline sentence if he was
responsible for over three kilos of heroin). Hearing the tapes
firsthand would not have emboldened Gonzalez-Arias to throw a Hail
Mary pass at trial; most reasonably, it would have stiffened his
resolve to plead guilty.
Gonzalez-Arias's brief on appeal gives us no reason to
think otherwise. As before the district judge, he doesn't say
7 This is because if he pled guilty, Gonzalez-Arias would
receive at least two points off his offense level for acceptance
of responsibility (and another point off if his plea was "timely");
so his offense level would have been two or three points higher if
he went to trial. See U.S.S.G. § 3E1.1. The government predicted
that these three extra points would raise his guideline sentence
by about 80 months.
In addition to the 80-month guideline hike, the government
had talked about trying to enhance Gonzalez-Arias's sentence based
on his prior convictions, see 21 U.S.C. §§ 841(b)(1)(A), 851, and
adding a charge based on the loaded gun found in his apartment,
see 18 U.S.C. § 924(c), if he pressed on to trial.
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what in the recordings made him regret pleading guilty. On the
other hand, the government urges that it was the presentence report
(or PSR for short), and not the audio-video evidence, which caused
his about-face. The PSR recommended that the judge find Gonzalez-
Arias responsible not for 1–3 kilos, but for 4.2 kilos of heroin.
That might explain why, although Gonzalez-Arias saw all the
evidence by April 2017, he didn't move to withdraw his plea until
after the PSR came out months later. But as we've said before, an
unfavorable PSR is not a strong reason to let a defendant withdraw
his plea. See United States v. Santiago Miranda, 654 F.3d 130,
139–40 (1st Cir. 2011) (where we found that the "timing" of the
defendant's plea withdrawal request, made two months after he pled
guilty and only after he got an "unfavorable PSR," "suggest[ed]
that it was a recalculation of risks and benefits — not
involuntariness — that produced [his] change of heart"). We need
not embrace the government's "the PSR made him do it" theory, and
the district court made no finding on the matter.8 But whatever
the reason Gonzalez-Arias changed his mind, he hasn't shown that
it was, in fact, the surveillance tapes that caused the change —
8Rather, the judge later explained that the timing of
Gonzalez-Arias's motion was not a game-changer in his decision,
given that the transition between Watkins and Lauer (Watkins
"probably was unwinding from his cases and trying to transfer them,
rather than . . . working 100 percent on the case[ ]" and Lauer
needed "time to get up to speed on it") may have delayed the filing
of the motion.
- 21 -
and that's fatal to his ineffective assistance claim. See Hill,
474 U.S. at 57–59.
b. Plea Colloquy
As his second attack on the guilty plea, Gonzalez-Arias
takes issue with the judge's Rule 11 colloquy. He argues that
when he pled guilty, he believed "that he could withdraw his plea"
if anything in the audio/video evidence changed his mind. He says
that the "Rule 11 colloquy[ ] fail[ed] to correct that mistaken
belief" because the judge "fail[ed] to mention anything about the
consequences of seeing the undisclosed discovery." The government
counters that "nothing in the record supports Gonzalez-Arias's
claim that he believed he could withdraw from the plea after seeing
all of the evidence or otherwise misunderstood the consequences of
the guilty plea."
We wouldn't go quite as far as the government. There's
some suggestion in the transcript that Gonzalez-Arias was confused
by the way the Rule 11 colloquy started off. After the judge
explained that he didn't have to plead guilty, Gonzalez-Arias said,
"That's fine. I will plead. Then I'll have to go over the
evidence, have them bring the evidence to me. I have pled guilty
without seeing the evidence." Then his lawyer interjected:
Mr. Gleason: Your honor, as I've indicated, I will
be there [at the jail] tomorrow, with everything.
And what I --
- 22 -
The Court: I guess I have this question for your
client. Yes or no, today you wish to plead guilty?
Mr. Gonzalez-Arias: Yes, Your Honor.
The Court: All right. I'll ask you the questions.
Either way, I'm directing you, Mr. Gleason, to go
there again tomorrow to provide the information.
Later, when the judge was warning Gonzalez-Arias about the
consequences of his plea, Gonzalez-Arias hinted at confusion
again:
The Court: Do you understand that you will not be
permitted to withdraw your plea of guilty if your
sentence is longer than you expected, if you're
unhappy with your sentence, or if it's different
from any sentence your lawyer might have predicted?
Mr. Gonzalez-Arias: Do you mean I will not be
allowed to withdraw my plea? I didn't --
The Court: You cannot withdraw your plea of guilty
because you get a sentence that's longer than you
expect.
Mr. Gonzalez-Arias: Okay.
The Court: Or because you're unhappy with your
sentence.
Mr. Gonzalez-Arias: Okay.
The Court: Or because your sentence is different
than your lawyer might have predicted.
Mr. Gonzalez-Arias: Okay.
Gonzalez-Arias urges that "[b]y cutting him off and only listing
three specific circumstances in which his plea could not be
- 23 -
withdrawn, the court left open the door to Mr. Gonzalez-Arias's
mistaken belief that he could withdraw [his plea] upon seeing the
evidence."
However, Gonzalez-Arias makes this argument for the
first time on appeal; his motion below took no issue with the
judge's plea colloquy. So he must show an error that was "plain
— that is to say, clear or obvious," "affected [his] substantial
rights," and "seriously affects the fairness, integrity or public
reputation of judicial proceedings." Rosales-Mireles v. United
States, 138 S. Ct. 1897, 1904–05 (2018). In the guilty plea
context, the defendant "must, in order to demonstrate that his
substantial rights were affected, show a reasonable probability
that, but for the error, he would not have entered the guilty
plea." United States v. Figueroa-Ocasio, 805 F.3d 360, 368 (1st
Cir. 2015) (cleaned up). Since Gonzalez-Arias doesn't address
whether the judge's (alleged) colloquy error met the last three
prongs of plain error review, his argument about it is waived.
See United States v. Severino-Pacheco, 911 F.3d 14, 20 (1st Cir.
2018). Anyway, he couldn't meet the third prong for reasons we've
already explained: even if Gonzalez-Arias hadn't seen the
video/audio evidence before he pled guilty, and even if he thought
he could change his mind once he reviewed it, the supposedly unseen
evidence undoubtedly would not have prompted Gonzalez-Arias to
proceed to trial. So there's no "reasonable probability" that
- 24 -
"but for the error" he would have gone to trial. Figueroa-Ocasio,
805 F.3d at 368.
SIXTH AMENDMENT CLAIMS
Background
The day after the judge shot down the attempt to withdraw
the plea, Lauer and Hossain wrote the judge that there'd been a
"substantial breakdown in the attorney-client relationship" and
asked to withdraw as Gonzalez-Arias's lawyers so the judge could
appoint a new one. The judge held a hearing on the motion two
days later. At the start, the judge excused the government from
the room so Gonzalez-Arias and his attorneys could speak freely
about their private communications. After the government left,
Gonzalez-Arias complained that Lauer had refused his request to
appeal the plea decision before sentencing.9 The judge, however,
was unimpressed. He explained that Lauer's refusal was reasonable
("if not an indisputably . . . correct judgment"), since he
couldn't appeal the plea decision before the end of the case. And
even if Lauer "responded negatively" about Gonzalez-Arias's "idea
of withdrawing the guilty plea," he was just being honest: it was
9 As Lauer and Gonzalez-Arias described them, the alleged
attorney-client issues were mainly between Gonzalez-Arias and
Lauer, who (as we said before) was lead counsel — the one meeting
with Gonzalez-Arias and making the key tactical decisions in the
case (like moving to withdraw the plea). But Lauer and Hossain
worked as a team, both moved to withdraw as counsel, and Gonzalez-
Arias made clear he wanted to discharge both.
- 25 -
a "hard motion" and not "a slam dunk." So the judge had no "concern
. . . that the federal defenders" were providing "anything less
than zealous advocacy" (he called their plea-withdrawal motion
"superbly done," "well documented," "well researched," and "an
excellent piece of craftsmanship") and spied no issue that "would
prevent [Gonzalez-Arias and his] lawyers from working together in
this case." That all said, the judge denied the motion for new
counsel.
A week later, though, Gonzalez-Arias went rogue; he
appealed the guilty plea decision himself — an appeal which, sure
enough, we later dismissed for lack of appellate jurisdiction. See
United States v. Gonzalez-Arias, No. 17-1245 (1st Cir. Dec. 29,
2017); United States v. Aliotta, 199 F.3d 78, 83 n.3 (2d Cir. 1999)
("Motions to withdraw guilty pleas are not among the 'small class'
of motions immediately appealable in criminal cases."). So
eighteen days before the scheduled sentencing, Lauer and Hossain
renewed their motion to withdraw. The judge held another ex parte
hearing the day before the scheduled sentencing. Buckle up — it
was a long one — but the details matter. As we'll explain, we pay
close attention to Gonzalez-Arias's reasons for wanting new
counsel, the judge's inquiry into those reasons, his warnings about
going pro se, and whether Gonzalez-Arias "unequivocally" decided
to do so. See United States v. Kar, 851 F.3d 59, 6567 (1st Cir.
2017).
- 26 -
First, Lauer updated the court: Gonzalez-Arias "ha[d]
lost confidence" in him and suggested he was "colluding with the
prosecution." Speaking for himself, Gonzalez-Arias added that he
and Lauer did not "see eye to eye on the situation" and that he
didn't "want [Lauer] to have anything more to do with [his] case."
Asked why he and Lauer weren't "getting along," Gonzalez-Arias
said that they could never agree: he'd tried to show Lauer holes
in the government's case against him, but Lauer responded that
he'd already "signed the plea" and "c[ouldn't] do anything more
now." Since all they "did was argue about the plea," they hadn't
had time to review the PSR.
The judge didn't buy it. First, he reminded Gonzalez-
Arias that Lauer had, in fact, filed the motion to withdraw the
plea, and that the judge had denied it. He told Gonzalez-Arias
that based on "the history in this case" (Gonzalez-Arias's issues
with his previous lawyers), he was "not likely to appoint another
lawyer to represent [him]." So Gonzalez-Arias could either stick
with Lauer and Hossain or, the judge said, "there's the possibility
that you could represent yourself." The judge then explained the
implications of going pro se. "What's left in your case before me
is this: your sentencing," he began. He had already explained
how sentencing (and the guidelines) worked before Gonzalez-Arias
pled guilty. Now, he reviewed what would happen at the sentencing
hearing: that "whether [he was] represented by counsel or not,"
- 27 -
Gonzalez-Arias and the government could object to the PSR, the
judge would "resolve . . . every objection that's made," and after
that, he would "hear arguments about what's the appropriate
sentence."
While on that topic of sentencing, the judge followed up
on the PSR issue. Lauer confirmed that the "breakdown in
communication [had] prevented a serious conversation about [the
PSR]," though after more questions, he clarified that Gonzalez-
Arias had "reviewed the [PSR] independently" and pointed out
"certain things" he disagreed with.
Then, they had this exchange:
The Court: All right. So Mr. Gonzalez-Arias, the
first question is . . . do you wish Mr. Lauer and
Ms. Hossain to continue as your lawyers, or not? What
do you want as to them?
Mr. Gonzalez-Arias: Now, do you want to know what
my objections to continuing with them [sic], or do
you want to know why I want to do it alone?
The Court: I want to know whether you want them as
your lawyers or not.
Mr. Gonzalez-Arias: No, I do not want them,
definitely.
The Court: All right. If I discharge them as your
lawyers, do you want to represent yourself, or are
you asking me to appoint another lawyer?
Mr. Gonzalez-Arias: I do not want to represent
myself.
- 28 -
Gonzalez-Arias then rehashed his issues with prior lawyers. But
the judge repeated that he was "not going to appoint a new lawyer
for [Gonzalez-Arias]." In his view, the problem was not that
Gonzalez-Arias was "oil and water with one particular lawyer" —
many of the "issues [he] raise[d] relate[d] to earlier lawyers
[he] had," and they would not be "fixed by having another lawyer."
Rather, the problem was that Gonzalez-Arias was "not listening to
Mr. Lauer," and granting the request would only delay sentencing.
As the judge later explained, "If I appoint a new lawyer, I can't
proceed with sentencing tomorrow. I have to give that lawyer some
reasonable period of time to read the [PSR] and talk to Mr.
Gonzalez-Arias, and to then file objections with the Court."
So the judge gave Gonzalez-Arias three choices: (a) he
could hire his own lawyer; (b) he could discharge Lauer and Hossain
and "represent[ ] yourself" with them as "standby lawyers" (he
confirmed that Gonzalez-Arias knew what that meant); or (c) he
could "proceed with them as [his] lawyers."
Mr. Gonzalez-Arias: Could it be option (d)?
The Court: What's (d)?
Mr. Gonzalez-Arias: Appoint me another lawyer,
Your Honor.
The Court: You can ask for (d), yes. And I give
you kudos, you'd be a good lawyer. Because even
though I've told you that I'm not appointing
another lawyer, you came back to me and asked again.
- 29 -
Mr. Gonzalez-Arias: Right.
The Court: And the answer is, no, I'm not
appointing another lawyer. And let me explain why.
You're entitled to know why.
Elaborating, the judge added that the "timing of th[e] request"
showed "gamesmanship" by Gonzalez-Arias to delay the case and avoid
facing his sentence. He repeated that the problem was not with
Gonzalez-Arias's lawyers, who had been "excellent," but with
Gonzalez-Arias, who simply didn't agree with their advice.
So (the judge continued) "[t]he question is how do you
want to proceed? With them as standby counsel, sitting there next
to you, or do you want them to be your lawyers?" He'd explained
that "it's not a good idea to represent yourself" because "[t]he
law is complicated, and there are a lot of rules. And you're not
familiar with those rules." "And you can get good advice from
people who are lawyers . . . and generally, it's not wise for
defendants to represent yourself." "So you know, there's an
expression in America you may have heard: The person who has
himself for a client, has a fool for a lawyer." Gonzalez-Arias
responded:
Mr. Gonzalez-Arias: It's a tough situation, Your
Honor, because, yeah, I didn't want them as
counsel, but I was expecting to get another lawyer,
because I'm not a lawyer, I don't know the law. I
don't know the argument I'm going to make here about
my case as a lawyer, because I don't know the law.
So I'm in a tough situation. I'm pretty much pushed
- 30 -
to really keep them on my case, so they can make
the argument, whatever they can make. . . .
The Court: Well if you want, you can do this: You
can discharge them, have them as standby. [The
Court explained again how sentencing, objections,
and the guidelines worked.] And you could either
have them tell you what objections they think that
you ought to make . . . or you could have them make
it on your behalf, even though they're standby.
. . .
Why don't we proceed that way. That way you're in
charge, and they can do as much or as little as you
want them to do. And your objection to my not
appointing you a new lawyer is preserved; that is,
that means that by proceeding the way I've just
described, you're not waiving any rights that you
have to complain about my decision to not give you
a new lawyer. Do you understand?
Mr. Gonzalez-Arias: Yes, sir.
The Court: Okay.
Mr. Gonzalez-Arias: That's fine.
After that 45-minute conversation, the judge called the
government back in and explained what happened. "It would be fair
to say," he said, "that Mr. Gonzalez-Arias is very committed to
his position . . . that he would like Mr. Lauer and Ms. Hossain to
be discharged from representing him . . . and that he does not
wish to proceed pro se [and] wishes me to appoint him a new lawyer";
but since there wasn't good cause to appoint new counsel, "the
best way to proceed [was] they [Lauer and Hossain] should be
discharged and serve as standby counsel." So Gonzalez-Arias was
- 31 -
now "representing himself." Though given the chance to weigh in
("The Court: So is there something that you wish to raise before
these proceedings conclude today?"), Gonzalez-Arias took no issue
with the judge's summary and only asked for more time to prepare
for sentencing. At the government's urging, the court granted a
three-week continuance to give Gonzalez-Arias more time to
prepare.
When the time came for sentencing, the judge recapped
that "[a]t [Gonzalez-Arias's] request that [he] didn't want Mr.
Lauer to represent [him] anymore, [the judge had] discharged
[Lauer] as [his] lawyer" and "directed that he be standby counsel."
And Gonzalez-Arias proceeded to represent himself at the hearing.
But he conferred with Lauer, and when requested, the lawyer chimed
in at various points: first, to argue that the judge should not
increase the guideline range based on the gun found in Gonzalez-
Arias's apartment (since "the firearm . . . ha[d] not been
connected to Mr. Gonzalez-Arias by way of any forensic evidence,
fingerprints, DNA, or the like," and the surveillance never caught
him carrying it), and second, to argue for a sentence at the
mandatory minimum (reviewing Gonzalez-Arias's background and
potential "to work, to teach, to coach [baseball] in the Dominican
Republic").
- 32 -
The Claims
Gonzalez-Arias distills two Sixth Amendment claims from
this episode. First, he urges, the judge violated his right to
effective assistance of counsel by refusing to appoint him a new
lawyer despite his "legitimate concerns" about Lauer and Hossain,
who "refused to listen to or take the time necessary to understand
his [unspecified] complaints" about his case. Second, he never
said he waived the right to counsel, and even if he had, his
exchange with the judge (called a "colloquy") "was insufficient to
ensure that [any] waiver of the right to counsel was voluntary,
knowing, and intelligent," as the Constitution requires, so the
court should not have let him go pro se (even with his lawyers on
standby).
We review for abuse of discretion the judge's decisions
not to appoint new counsel and to let Gonzalez-Arias handle his
sentencing pro se. Kar, 851 F.3d at 65–66. But like his other
claims, Gonzalez-Arias's Sixth Amendment issues don't wash.
a. Motion for New Counsel
The Sixth Amendment "guarantee[s] an effective advocate
for each criminal defendant" but not always "the lawyer whom he
prefers." Id. at 65 (quoting Wheat v. United States, 486 U.S.
153, 159 (1988)). So — while a judge can't thrust the defendant
into a trial (or here, a sentencing hearing) "with incompetent or
unprepared counsel," Maynard v. Meachum, 545 F.2d 273, 278 (1st
- 33 -
Cir. 1976) — courts may sometimes "force criminal defendants to
choose between effective representation by unwanted counsel and
proceeding pro se," Kar, 851 F.3d at 65. For example, the judge
may refuse an untimely request for a new defender (even when the
accused can pay for one) if granting it would needlessly delay the
proceedings. See United States v. Woodard, 291 F.3d 95, 10607
(1st Cir. 2002); Tuitt v. Fair, 822 F.2d 166, 172 (1st Cir. 1987)
("A last-minute request to substitute counsel should not be allowed
to become a vehicle for achieving delay." (internal quotation marks
omitted)); Maynard, 545 F.2d at 278 ("A court need not tolerate
unwarranted delays, and may at some point require the defendant to
go to trial even if he is not entirely satisfied with his
attorney."). When a defendant asks for new appointed counsel, the
judge must "conduct an appropriate inquiry into the source of the
defendant's dissatisfaction" with his current defenders. United
States v. Myers, 294 F.3d 203, 207 (1st Cir. 2002) (citing United
States v. Allen, 789 F.2d 90, 92 (1st Cir. 1986)). That a defendant
comes to distrust his lawyer isn't enough to justify appointing a
new one; he "must provide the court with a legitimate reason for
his loss of confidence." Allen, 789 F.2d at 93.
To see if the judge abused his discretion (as alleged
here) in denying the request, we consider three main factors: "(1)
the timeliness of the motion; (2) the adequacy of the court's
inquiry into the defendant's complaint; and (3) whether the
- 34 -
conflict between the defendant and his counsel was so great that
it resulted in a total lack of communication preventing an adequate
defense." United States v. Mejía-Encarnación, 887 F.3d 41, 47
(1st Cir. 2018) (quoting Kar, 851 F.3d at 65); see also Allen, 789
F.2d at 92.
Regardless of whether Gonzalez-Arias's motions to
substitute counsel were timely, the judge did not abuse his
discretion in denying them. His probe into Gonzalez-Arias's
problems with Lauer and Hossain was patient and searching;
confronting vague complaints (that there was a "substantial
breakdown in the attorney-client relationship," and that Gonzalez-
Arias thought Lauer was in cahoots with the government) the judge
dug deeper, asked both Lauer and Gonzalez-Arias about their talks,
and sussed out the real issues: first, that Lauer had refused to
file a mid-case appeal of the guilty plea decision, and second,
that Lauer was too dismissive about Gonzalez-Arias's bid to
withdraw his guilty plea initially and wouldn't keep discussing
the issue after the judge ruled on it. The judge found that the
resulting difficulty communicating had at most sidetracked (but
didn't prevent) discussion of the PSR and sentencing issues. We've
found that similar inquiries were enough to smoke out the true
reasons the defendant wanted new counsel and decide if they merited
a change. See Allen, 789 F.2d at 93 (finding court's inquiry
"comprehensive" when it "invited appellant to make a statement,
- 35 -
listened to his reasons for being dissatisfied with his counsel,
and found them to be without merit").
As the district judge found, Gonzalez-Arias's complaints
boiled down to this: Lauer gave his honest (if grim) assessment
of the plea-withdrawal motion and wouldn't file a clearly premature
appeal. But straight-talk doesn't make a lawyer deficient; rather
(as the judge explained below), it equips a defendant to make
clear-eyed decisions. And lawyers don't need to "waste the court's
time with futile or frivolous motions" to be effective advocates.
See United States v. Hart, 933 F.2d 80, 83 (1st Cir. 1991) (quoting
United States v. Wright, 573 F.2d 681, 684 (1st Cir. 1978)). So
as we've repeatedly observed, a defendant isn't entitled to swap
appointed counsel just because he dislikes his current lawyers'
"accurate assessment of [his] predicament" or disagrees with their
reasonable tactical decisions not to file frivolous papers. United
States v. Francois, 715 F.3d 21, 29 (1st Cir. 2013) (that defendant
"did not like hearing that the motions he wanted [his lawyer] to
file were frivolous" and "that he would almost certainly be
convicted and should accept a plea bargain" didn't justify
appointing new counsel); see also Kar, 851 F.3d at 66 (affirming
decision not to appoint new counsel for defendant who "simply
disliked the substance" of his lawyer's advice); Woodard, 291 F.3d
at 108 (finding that a lawyer's refusal to file a "motion that he
- 36 -
considered to be meritless" didn't warrant delaying trial so
defendant could retain new counsel).10
True, the judge did find that Gonzalez-Arias and his
lawyers had "difficulty" communicating. But "[a] defendant who
seeks the replacement of appointed counsel must show more than the
mere fact of a disagreement; he must show that the conflict between
lawyer and client was so profound as to cause a total breakdown in
communication, precluding the lawyer from effectively litigating
the issues remaining in the case." Myers, 294 F.3d at 208. On
appeal, Gonzalez-Arias does not contend that his conflict with
Lauer crossed that line. Though Lauer did claim (at the hearing
on his second motion to withdraw) that their conflict had
"recently . . . prevented a serious conversation" about the PSR,
Gonzalez-Arias does not press this point on appeal — perhaps
because (as Lauer told the judge during the same hearing) Lauer
and Gonzalez-Arias did discuss the report: Gonzalez-Arias
reviewed it himself, identified portions he disagreed with, and
shared those concerns with Lauer. See United States v. Pierce, 60
F.3d 886, 891 (1st Cir. 1995) (finding that defendant's "proof
that his relationship with [his lawyer] was beset with problems"
10
In case there's any doubt, we note that Lauer and Hossain's
refusal to file a clearly premature appeal is a far cry from when
a lawyer fails to file a timely notice of appeal. See Rojas-
Medina v. United States, 924 F.3d 9, 12 (1st Cir. 2019). Lauer
filed a timely notice of appeal after sentencing.
- 37 -
didn't require new counsel where the two "were conversing with one
another and had some appreciation for the other's opinions and
sensibilities at the time the motions were filed," so that
"communication between the counsel and client was sufficient to
allow a satisfactory defense"). Though Lauer believed their PSR
discussion wasn't "finished," neither he nor Gonzalez-Arias
identified for the judge anything they'd hoped to go over but
didn't.
Rather, the judge reasonably found that Lauer and
Hossain put up an "excellent" fight on the motion to withdraw the
plea, even though they disagreed with it, and Lauer (conferring
with Gonzalez-Arias) made several well-prepared arguments as
standby counsel at sentencing. So Lauer and Hossain were "still
able to adequately represent" Gonzalez-Arias "despite the alleged
breakdown in communication." Mejía-Encarnación, 887 F.3d at 48.
Their performance, and Gonzalez-Arias's history (he'd developed
conflicts with at least three different lawyers), gave the judge
good reason to find that any impediment came from Gonzalez-Arias's
"own refusal to participate in his representation." Id. (finding
new counsel uncalled for because Mejía's lawyer "fulfilled Mejía's
request that he file motions to withdraw the guilty plea and to
withdraw as counsel" and "zealously" argued for him at sentencing
"despite the fact that Mejía was no longer cooperating with
[counsel's] efforts to represent him"); see also United States v.
- 38 -
Reyes, 352 F.3d 511, 516 (1st Cir. 2003) ("[A] defendant cannot
compel a change to counsel by the device of refusing to talk with
his lawyer.").
On the other hand, as the district court found,
appointing new counsel would have delayed sentencing again — likely
more than just three weeks — since the new lawyer would need to
read the PSR, review the evidence and case history, speak with
Gonzalez-Arias, learn his history, listen to his concerns, file
any objections, and prepare a sentencing argument. On balance,
therefore, the judge did not abuse his discretion in denying the
motions to withdraw and appoint new counsel. See Myers, 294 F.3d
at 208 (upholding a similar decision because "the district court's
ultimate conclusion — that no good cause existed for the
appointment of new counsel and the concomitant delay in sentencing
that such an appointment would entail . . . fell squarely within
the realm of the court's discretion").
b. Waiver of Counsel/Going Pro se
Gonzalez-Arias urges that even if it was okay for the
judge to limit his choices (to sticking with Lauer and Hossain or
going pro se), he didn't unequivocally (as required) waive his
right to counsel. And that's a serious claim; "the right to be
represented by counsel is by far the most pervasive" of an
accused's constitutional rights because it helps ensure he knows
and can assert "any other rights he may have." United States v.
- 39 -
Cronic, 466 U.S. 648, 654 (1984). So we must "indulge in every
reasonable presumption" that Gonzalez-Arias did not mean to give
it up. United States v. Proctor, 166 F.3d 396, 401 (1st Cir. 1999)
(quoting Brewer v. Williams, 430 U.S. 387, 404 (1977)). That
presumption only bends if the waiver was "'clear and unequivocal';
otherwise, a 'court should not deprive defendant of his right to
counsel.'" United States v. Betancourt-Arretuche, 933 F.2d 89, 92
(1st Cir. 1991) (quoting Tuitt, 822 F.2d at 174). The waiver must
also be "knowing, intelligent and voluntary." United States v.
Jones, 778 F.3d 375, 389 (1st Cir. 2015). So before letting a
defendant go on without counsel, the judge must warn the defendant
"of the dangers and disadvantages of self-representation, so that
the record will establish that he knows what he is doing and his
choice is made with eyes open." Id. (quoting Faretta v.
California, 422 U.S. 806, 835 (1975)). To waive counsel knowingly
and intelligently, the defendant must understand "the seriousness
of the charge and of the penalties he may be exposed to" and have
"a sense of the magnitude of the undertaking," that is: "an
awareness that there are technical rules governing the conduct of
a trial, and that presenting a defense is not a simple matter of
telling one's story." United States v. Robinson, 753 F.3d 31, 43
(1st Cir. 2014) (quoting Maynard, 545 F.2d at 279).
As Gonzalez-Arias points out, he told the judge up front
that he "d[id] not want to represent [himself]," and he never said,
- 40 -
in so many words, that he "would waive his right to counsel." So
in his view, his so-called waiver was equivocal at best. But we've
already rejected a similar claim. In United States v. Kneeland,
the defendant also said "he 'did not want to go pro se, but [did
not] want to use [his lawyer].'" 148 F.3d 6, 11 (1st Cir. 1998).
After the trial judge rejected his request for new counsel, he
defended himself at trial (as Gonzalez-Arias did at sentencing).
Id. On appeal, we found an unequivocal waiver "not because
[Kneeland] ever stated, in so many words, that he did not want
attorney representation, but because he explicitly dismissed his
third court-appointed attorney in the face of ample warnings by
the district court that he would not be provided a fourth appointed
counsel." Id. at 12 (holding that "[a]though Kneeland initially
stated that he 'did not want to go pro se, but did not want to use
[his current lawyer],' his ultimate decision" to dismiss his
attorney and present his case pro se "was an unambiguous expression
of his preference").
As in Kneeland, Gonzalez-Arias disliked his options (and
as the judge noted, it wasn't his "first choice" to go pro se).
But his final decision was express and firm. To recap, Gonzalez-
Arias stressed from the get-go that he didn't "want [Lauer] to
have anything more to do with [his] case." Even after the judge
said he was "not likely to appoint another lawyer" and explained
the alternatives (stick with Lauer/Hossain, go pro se with them on
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standby, or get rid of them altogether), Gonzalez-Arias confirmed
he did not want the first option: he "d[id] not want [Lauer and
Hossain], definitely." So after more dialogue, the judge proposed
that he take the second option ("discharge" his lawyers and "have
them as standby" counsel). Gonzalez-Arias said "[t]hat [was]
fine."
If it wasn't, he would have said so. The judge made
clear that Gonzalez-Arias could keep Lauer and Hossain as his
lawyers if he wanted. And as the judge observed, Gonzalez-Arias
pushed for what he wanted; earlier in the hearing, he'd asked
several times (even after the judge denied his request) for another
lawyer. Yet, when the judge rehashed the agreed-on plan (that the
lawyers be "discharged and serve as standby counsel"), reiterated
that Gonzalez-Arias was now "represent[ing] himself," and asked if
there was anything else he "wish[ed] to raise before th[e]
proceedings conclude[d]" that day, Gonzalez-Arias only requested
more time to prepare for sentencing (which he got). And when the
time came for sentencing, Gonzalez-Arias in fact represented
himself. His express agreement to go pro se, combined with his
unflinching follow-through, made his final choice unambiguous.
See Kneeland, 148 F.3d at 11-12; see also Maynard, 545 F.2d at
276–78 (finding in a habeas case that "while Maynard did not
affirmatively wish to represent himself, when given a clear choice
between proceeding with counsel already appointed or going pro
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se," he presented his own case and therefore "elected the latter";
remanding for more evidence on whether waiver was knowing,
intelligent, and voluntary).
Gonzalez-Arias's waiver of counsel was also voluntary.
On appeal, he argues that given his problems with Lauer and
Hossain, he had no practical choice but to take the helm himself.
But since the lawyers continued to have meaningful discussions
with Gonzalez-Arias and provide effective advocacy despite their
rocky relationship with him, the judge's decision to impose the
choice he did — between sticking with them and going pro se — did
not "place[ Gonzalez-Arias] in a dilemma of constitutional
magnitude." Maynard, 545 F.2d at 278 ("[A] refusal without
good cause to proceed with able appointed counsel is a 'voluntary'
waiver."); see also Francois, 715 F.3d at 28–29; Kneeland, 148
F.3d at 12–13. And though Gonzalez-Arias hints in passing that
his waiver wasn't "knowing and intelligent" and the court's
"detailed colloquy" was "insufficient," he never tells us why he
thinks it so. We need not fill in the blank. See United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to
in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.").
And so, the judge did not abuse his discretion or violate
the Sixth Amendment by making Gonzalez-Arias choose between his
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current counsel or going pro se, or by letting Gonzalez-Arias
represent himself at sentencing.
SENTENCING
Background
When all was said and done, the judge sentenced Gonzalez-
Arias to 136 months in prison, the government's recommendation,
and five years of supervised release. To get there, he started
(as required) by calculating Gonzalez-Arias's sentencing guideline
range. See Gall v. United States, 552 U.S. 38, 49 (2007) ("[A]
district court should begin all sentencing proceedings by
correctly calculating the applicable Guidelines range."); United
States v. Chisholm, 940 F.3d 119, 130 n.7 (1st Cir. 2019)
(explaining that courts derive a defendant's guideline range from
his "offense level" and "criminal history category," and
describing what those are). First, Gonzalez-Arias's total offense
level was 30,11 based on the 1–3 kilos of drugs found in his
11As we noted earlier, the guidelines set a base offense
level of 30 if the defendant was responsible for 1–3 kilos of
heroin, and a base level of 32 if the weight was 3–10 kilos. See
U.S.S.G. § 2D1.1(c). At sentencing, the judge rejected probation's
claim that Gonzalez-Arias was responsible for 3–10 kilos of heroin,
set the weight at 1–3 kilos, and therefore arrived at the base
level of 30. The judge also added a two-level enhancement for the
loaded gun, but a two-level reduction for Gonzalez-Arias's
"acceptance of responsibility" cancelled that out. Finally, the
judge rejected the government's request to add more levels because
(it unsuccessfully argued) Gonzalez-Arias played a "leadership
role" in the drug operation. Thus, Gonzalez-Arias's total offense
level stayed at 30.
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apartment. As for Gonzalez-Arias's criminal history category, the
judge found it was III. Though Gonzalez-Arias had only one prior
conviction (a 2001 conviction in New York state court for criminal
possession of a controlled substance in the second degree, see
N.Y. Penal Law § 220.18), he had been given a serious sentence
(three years to life), and he was still on parole (despite
Gonzalez-Arias's argument to the contrary) when he committed the
federal crimes. That gave him five criminal history points: three
for the prior prison sentence, see U.S.S.G. § 4A1.1(a) (adding "3
points for each prior sentence of imprisonment exceeding one year
and one month"), and two for committing the federal crime while on
parole, see id. § 4A1.1(d) (adding "2 points if the defendant
committed the instant offense while under any criminal justice
sentence, including . . . parole"). Which put his guideline range
at 121–151 months in prison.
On appeal (as he did below), Gonzalez-Arias objects to
that five-point pile-up from the New York conviction. First, he
urges that although the New York court sentenced him to three years
to life in prison, he "really served a six-month sentence," so (in
his view) that prior sentence was only worth two points. See id.
§ 4A1.1(b) (assigning only "2 points for each prior sentence of
imprisonment of at least sixty days" but less than or equal to one
year and one month). Second, he says that his New York parole
ended before he committed the federal crimes at issue here. So as
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he would have it, he had only 2 criminal history points, so his
criminal history category was II (not III). See U.S.S.G. ch. 5,
pt. A (table). That would have lowered his guideline range to
108–135 months.
Law
"We review criminal sentences imposed under the advisory
guidelines regime for abuse of discretion." United States v.
Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013). In doing so,
we review the judge's interpretation of the sentencing guidelines
de novo and his underlying factual findings for clear error. Id.
And we'll dub an error "clear" only when we have "a strong,
unyielding belief" that the judge made a mistake. United States
v. Occhiuto, 784 F.3d 862, 868 (1st Cir. 2015). Viewed under that
lens, neither of Gonzalez-Arias's sentencing-related claims cuts
ice.12
Application
First, Gonzalez-Arias says he only served six months in
a "shock incarceration program" for his New York conviction before
12The government thinks it's "doubtful whether Gonzalez-Arias
raised these claims [about the sentencing guidelines] in
sufficient detail below or on appeal to avoid plain error review,"
but maintains that the claims fail "under any standard of review."
So we'll analyze Gonzalez-Arias's challenges to his assigned
guideline range as if they were preserved. See United States v.
Encarnación-Ruiz, 787 F.3d 581, 586 (1st Cir. 2015) ("When the
government fails to request plain error review, we, and many of
our sister circuits, review the claim under the standard of review
that is applied when the issue is properly preserved below.").
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being deported to the Dominican Republic — not the full three-year
sentence imposed. See N.Y. Correct. Law § 865 (explaining that a
"shock incarceration program" is "a program pursuant to which
eligible inmates are selected to . . . serve a period of six months
in a shock incarceration facility, which shall provide rigorous
physical activity, intensive regimentation and discipline and
rehabilitation therapy and programming"). Inmates in New York
apply to the program after being sentenced. See id. §§ 865, 867;
see also People v. Miller, 29 N.Y.S.3d 586, 587 (N.Y. App. Div.
2016) ("[T]he determination as to whether to accept any particular
individual into [the shock incarceration program] lies within the
authority of the [New York] Department of Corrections and Community
Supervision [DOCCS for short], rather than the [sentencing]
court."). As Gonzalez-Arias would have it, because he only served
six months of his three-years-to-life sentence, the New York
conviction only carried two points under § 4A1.1. Here, however,
he overlooks that under the guidelines, a "sentence of
imprisonment" is measured by "the maximum sentence imposed."
U.S.S.G. § 4A1.2(b)(1) (emphasis added). So "criminal history
points are based on the sentence pronounced, not the length of
time actually served." Id. § 4A1.2 cmt. n.2. Since Gonzalez-
Arias doesn't dispute that the New York court sentenced him to
more than one year and one month in prison, the judge properly
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added three points for the New York sentence. That Gonzalez-Arias
was released earlier than that does not affect his score. Id.
Second, Gonzalez-Arias challenges the judge's
determination, based on information in the PSR, that he was on
parole for the New York offense when he committed the crime in
this case. He urges that New York's Drug Law Reform Act (DLRA),
passed in 2004 while he was in the Dominican Republic (after being
deported), ended his parole before that, so he should not have
received the two points under § 4A1.1(d) (again, adding "2 points
if the defendant committed the instant offense while under any
criminal justice sentence, including . . . parole"). In pertinent
part, the DLRA "provided that felony drug offenders sentenced under
the old [drug] law[s] may now be eligible . . . to obtain early
termination of parole." People v. Utsey, 855 N.E.2d 791, 794 (N.Y.
2006). Specifically, it directed "the [New York] division of
parole [to] grant termination of sentence after three years of
unrevoked presumptive release or parole to a person" who, like
Gonzalez-Arias, was "serving an indeterminate sentence for a class
A [drug] felony offense." 2004 N.Y. Sess. Laws ch. 738 (amending
N.Y. Exec. Law § 259-j(3-a)) (emphasis added).
But even assuming that this provision applied to a
defendant who, like Gonzalez-Arias, was "released without any
supervision and subject to a single condition — remaining out of
th[e] [United States] — with which he did not comply," Tavarez v.
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Dennison, 829 N.Y.S.2d 437, 439 (N.Y. Sup. Ct. 2006) (holding that
the DLRA did not entitle such a defendant to have his parole
terminated early), Gonzalez-Arias doesn't contend that the New
York Division of Parole ever terminated his parole. In fact, he
admitted at sentencing that he never contacted the Division when
he returned to the U.S. in 2007. So he gave the district judge no
reason to doubt probation's report in the PSR that, based on DOCCS
records, his "parole ha[d] not been terminated" by the Division.
See United States v. González, 857 F.3d 46, 61-62 (1st Cir. 2017)
("The defendant bears the burden of disputing the PSR's factual
findings, and absent an objection '[ ]supported by countervailing
proof,' the district court usually may accept the findings in the
PSR without further inquiry." (quoting Occhiuto, 784 F.3d at
868)).13 Accordingly, the judge did not clearly err in finding
that Gonzalez-Arias committed his federal crimes while on parole
and adding the two criminal history points under § 4A1.1(d) for
that reason.14
13 Gonzalez-Arias does not argue for an exception to this
rule here.
14 Gonzalez-Arias also says that his sentence was
"substantively unreasonable," but in support, he just relies on
his claim that the judge calculated a too-high guideline range
based on his New York conviction arguments, and says the judge
erred by failing to "explain [his] upward variance" from the
correct (lower) range. This claim actually sounds in procedural
error. See Gall, 552 U.S. at 51 (characterizing a "fail[ure] to
adequately explain the chosen sentence — including an explanation
for any deviation from the Guidelines range" as procedural error).
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CONCLUSION
For those reasons, we affirm Gonzalez-Arias's conviction
and sentence.
Anyway, since we find that the judge calculated the right guideline
range, Gonzalez-Arias's premise is wrong: the sentence wasn't an
"upward variance." And since he doesn't give us any other reason
to think his sentence was substantively unreasonable, we can stop
there. See Zannino, 895 F.2d at 17.
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