July 26, 1995
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_________________
No. 94-1879
UNITED STATES OF AMERICA
Appellee,
v.
EDGAR GRACIANI,
Defendant, Appellant.
_________________
ERRATA SHEET
The opinion of this Court issued on July 24, 1995, is
amended as follows:
On page 18, line 4, "Trial" should be "trial". _____
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_________________________
No. 94-1879
UNITED STATES OF AMERICA,
Appellee,
v.
EDGAR GRACIANI,
Defendant, Appellant.
__________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge] ___________________
__________________________
Before
Selya, Boudin and Lynch,
Circuit Judges. ______________
__________________________
Harry R. Segarra, by appointment of the court, Benicio __________________ _______
Sanchez Rivera, Federal Public Defender, and Miguel A. A. _______________ ______________
Nogueras-Castro, Assistant Federal Public Defender, on various _______________
briefs for appellant.
Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco _____________ _____________________
and Edwin O. Vazquez, Assistant United States Attorneys, on brief ________________
for the United States.
_________________________
July 24, 1995
_________________________
SELYA, Circuit Judge. Defendant-appellant Edgar SELYA, Circuit Judge. ______________
Graciani challenges the sentence imposed below on several
grounds. He also belatedly moves to remand on the basis of newly
discovered evidence an initiative that requires us to set out
for the first time the procedural framework that pertains to a
motion brought under Fed. R. Crim. P. 33 while a criminal case is
pending on direct appeal, and, relatedly, to examine the
interplay between Rule 33 and a defendant's guilty plea. In the
end, we affirm the sentence and deny the motion.
I. I. __
Background Background __________
Because appellant's conviction and sentence stem from a
guilty plea rather than a verdict, we derive the pertinent facts
from the presentence investigation report (PSI Report), the
government's statement served pursuant to D.P.R. Loc. R.
418.2(a),1 and the transcripts of the change-of-plea and
disposition hearings. See United States v. Tejada-Beltran, 50 ___ _____________ ______________
F.3d 105, 107 (1st Cir. 1995); United States v. Dietz, 950 F.2d _____________ _____
50, 51 (1st Cir. 1991).
____________________
1The local rule provides:
In all cases where a Presentence
Investigation Report is ordered . . . counsel
for the government shall file with the Court
and serve upon the defendant's counsel, a
statement setting forth the government's
version of the facts leading to the
acceptance of criminal responsibility.
D.P.R. Loc. R. 418.2(a). In this case, the defendant did not
object to the statement submitted by the government.
3
On or about January 14, 1992, appellant arranged to
sell one-eighth of a kilogram of crack cocaine (125 grams) to a
customer who was, in reality, a government operative. On the
evening of January 15, appellant's courier, Carlos Delgado Rojas
(Delgado), told the agent that appellant could not supply the
full 125 grams of crack then and there; instead, he proposed to
deliver approximately 80 grams of crack and 45-50 grams of
powdered cocaine. Once the agent agreed to the substitution, the
parties consummated the transaction. Subsequent measurement
revealed that Delgado had delivered 85.3 grams of crack and 54.4
grams of cocaine powder.
The agent expressed an interest in future purchases.
Appellant agreed to sell him a half-kilogram of crack, to be
delivered on January 24. At the appointed time, Delgado, armed,
appeared at the delivery site accompanied by Juan Encarnacion
Castro (Encarnacion) and a juvenile (G.R.M.). The men were
apprehended and the arresting officers seized a loaded pistol.
The officers also seized three plastic bags containing a white,
powdery substance later determined to be sugar.2 Further
investigation revealed that appellant gave the seized firearm to
____________________
2Appellant eventually admitted that he had agreed to purvey
the half-kilogram of crack, and stated that he had prepared for
the transaction by "cooking" that amount of cocaine. He then
substituted sugar for crack, claiming that he had a premonition
that he might be apprehended. The circumstances suggest that
something more sinister might have been afoot. Cf. United States ___ _____________
v. Dray, 901 F.2d 1132, 1134 (1st Cir.) ("Honor, even among ____
thieves, may all too often be, in the bard's phrase, `a mere
scutcheon.'") (quoting William Shakespeare, Henry IV Part I, act _______________
V, sc. 1 (1598)), cert. denied, 498 U.S. 895 (1990). _____ ______
4
Delgado for protection during the drug transaction.
The grand jury indicted Graciani, Delgado, and
Encarnacion on a medley of charges. Appellant was named in seven
counts of the superseding indictment. He eventually agreed to
plead guilty to count 1 (which charged the unlawful distribution
of 85.3 grams of crack cocaine on January 15 in violation of 21
U.S.C. 841(a)(1)) and count 7 (which charged the unlawful
carriage of a firearm during and in relation to a drug
trafficking offense in violation of 18 U.S.C. 924(c)). The
plea agreement left the sentence in the court's discretion
(subject, of course, to the constraints imposed by the sentencing
guidelines).
The district court took appellant's plea and
commissioned a PSI Report. The court originally sentenced
appellant on July 7, 1992,3 but then reconsidered. We do not
concern ourselves with the withdrawn sentence, but focus upon the
second disposition hearing (held on August 2, 1994). The court
attributed to appellant (a) the weight of the crack cocaine
actually supplied on January 15, (b) the weight of the powdered
cocaine actually supplied on that date, and (c) the weight of the
crack cocaine promised for delivery on January 24. Then, using
the Drug Quantity Table, the court set appellant's base offense
level (BOL) at 36. See U.S.S.G. 2D1.1(c)(4) (Drug Quantity ___
Table) (specifying a BOL of 36 for offenses involving "[a]t least
____________________
3The court dismissed the remaining five counts at that time
as per the plea agreement. The ensuing reconsideration of the
sentence did not implicate the dismissed counts.
5
500 G but less than 1.5 KG of Cocaine Base").
The court added six levels four for appellant's
aggravating role in the offense, see id. 3B1.1(a), and two for ___ ___
obstruction of justice, see id. 3C1.1 and subtracted three ___ ___
levels for acceptance of responsibility, see id. 3E1.1, bringing ___ ___
the total offense level (TOL) to 39. Given appellant's status as
a first offender, these computations yielded a guideline
sentencing range (GSR) of 262-327 months. The court imposed a
280-month incarcerative sentence on count 1, and added a 60-month
consecutive sentence on count 7 to accommodate a mandatory
minimum. See 18 U.S.C. 924(c)(1). This appeal ensued. ___
II. II. ___
Discussion Discussion __________
Appellant advances a myriad of arguments in support of
the appeal and the concomitant motion. We deal with these
arguments seriatim. ________
A. A. __
Relevant Conduct Relevant Conduct ________________
The method of the sentencing guidelines makes the
quantity of narcotics attributable to a convicted drug trafficker
a key datum in constructing his sentence. See United States v. ___ _____________
Sepulveda, 15 F.3d 1161, 1196 (1st Cir. 1994), cert. denied, 114 _________ _____ ______
S. Ct. 2714 (1995); United States v. Garcia, 954 F.2d 12, 15 (1st _____________ ______
Cir. 1992); United States v. Bradley, 917 F.2d 601, 604 (1st Cir. _____________ _______
1990). In this case, appellant castigates the district court for
attributing to him a drug quantity in excess of the amount of
6
crack cocaine involved in the count of conviction. Appellant's
fusillade lands well wide of the target.
Under the guidelines, the aggregate amount of
attributed drugs is to be derived from the sum total of all
relevant conduct. The proper figure can only be computed,
therefore, by careful consideration of all acts "that were part
of the same course of conduct or common scheme or plan as the
offense of conviction." U.S.S.G. 1B1.3(a)(2). "Relevant
conduct is not limited to the counts of conviction"; rather, it
includes both the charged conduct to which a defendant pleads and
also any other conduct that qualifies under the relevancy rubric.
Tejada-Beltran, 50 F.3d at 110; see also Garcia, 954 F.2d at 15; ______________ ___ ____ ______
Bradley, 917 F.2d at 605; U.S.S.G. 1B1.3, comment. (backg'd). _______
Specifically and in direct contradiction to the position
asserted by appellant relevant conduct may include both
uncharged conduct and conduct underbracing counts that have been
charged and then dropped. See Tejada-Beltran, 50 F.3d at 110; ___ ______________
Garcia, 954 F.2d at 15. ______
That ends the matter. In the usual case, we review a
sentencing court's drug quantity determination only for clear
error. See Sepulveda, 15 F.3d at 1196; Bradley, 917 F.2d at 605. ___ _________ _______
Here, the district court supportably found that the delivery of
the crack and powdered cocaine on January 15, and the agreement
to sell additional crack cocaine on January 24, were all part of
the same course of criminal activity, and, thus, relevant
conduct. We see no error.
7
By like token, the fact that the government seized
sugar, and never recovered the half-kilogram of crack that
appellant promised to supply on January 24, does not sweeten the
bottom line by precluding reference to the agreed quantity in the
sentencing determination. Indeed, "every court to consider the
issue, including this one, has concluded that an amount of drugs
which a defendant negotiates to sell may be considered as
relevant conduct for base offense level purposes even if the
drugs are never produced." Bradley, 917 F.2d at 604.4 _______
For these reasons, we conclude that the lower court's
drug quantity calculation cannot be faulted.
B. B. __
Drug Equivalency Drug Equivalency ________________
Appellant's next protestation, now familiar in all the
circuits, criticizes the fact that the guidelines, and
specifically U.S.S.G. 2D1.1, equate one kilogram of crack
cocaine to one hundred kilograms of powdered cocaine for
sentencing purposes.5 We have squarely rejected claims that the
____________________
4To be sure, there are exceptions to this rule, see, e.g., ___ ____
U.S.S.G. 2D1.1, comment. (n.12) (requiring exclusion of
negotiated amount if "the court finds that the defendant did not
intend to produce and was not reasonably capable of producing
[it]"); United States v. Muniz, 49 F.3d 36, 41-42 (1st Cir. 1995) _____________ _____
(discussing application of note 12); United States v. Gessa, 971 _____________ _____
F.2d 1257, 1265 (6th Cir. 1991) (remanding for findings with
respect to defendant's intent and capability), but appellant has
not brought his situation within the confines of any recognized
exception.
5The Sentencing Commission recently submitted proposed
guideline amendments that would substantially reduce the
equivalency ratio between crack cocaine and powdered cocaine.
See 60 Fed. Reg. 25,074, 25,075-76 (1995). The proposed changes ___
8
conversion formula has a greater impact on African-Americans,
and, thus, transgresses the Equal Protection Clause of the Fifth
Amendment. See United States v. Singleterry, 29 F.3d 733 (1st ___ _____________ ___________
Cir.), cert. denied, 115 S. Ct. 647 (1994). There, we held the _____ ______
sentencing distinction between crack and powered cocaine to be
constitutional, finding no significantly probative evidence that
either Congress or the Sentencing Commission harbored a racial
animus or discriminatory intent. Id. at 741. We also found a ___
sufficient rational basis for the conversion formula and the
resultant sentencing scheme. See id. at 740. ___ ___
It is axiomatic that, "[i]n a multi-panel circuit,
newly constituted panels are, for the most part, bound by prior
panel decisions closely on point." Williams v. Ashland Eng'g ________ ______________
Co., 45 F.3d 588, 592 (1st Cir. 1995), petition for cert. filed, ___ ________ ___ _____ _____
63 U.S.L.W. 3819 (U.S. May 2, 1995) (No. 94-1804-CFX). This
principle applies in criminal as well as civil cases. See, e.g., ___ ____
United States v. Wogan, 938 F.2d 1446, 1449 (1st Cir.), cert. _____________ _____ _____
denied, 502 U.S. 969 (1991); see also Lacy v. Gardino, 791 F.2d ______ ___ ____ ____ _______
980, 985 (1st Cir.) (applying principle in habeas corpus
____________________
will become effective on November 1, 1995, absent congressional
action to the contrary. See 28 U.S.C. 994(p) (1988). The ___
Commission has not yet decided whether the changes, if they
become law, should apply retrospectively. See 60 Fed. Reg. at ___
25,074. If the amendments are eventually determined to warrant
retroactive application, appellant may then be in a position to
seek appropriate relief in the district court. See United States ___ _____________
v. Saccoccia, ___ F.3d ___, ___ n.27 (1st Cir. 1995) [No. 93- _________
1618, slip op. at 65 n.27]; United States v. Connell, 960 F.2d _____________ _______
191, 197 n.10 (1st Cir. 1992). We express no opinion on the
subject, but merely note the possibility and proceed without
further reference to what the future may bring.
9
context), cert. denied, 479 U.S. 888 (1986). Because Singleterry _____ ______ ___________
is controlling on this issue, we dismiss appellant's claim.6
C. C. __
Other Adjustments Other Adjustments _________________
Appellant complains of two upward adjustments to his
BOL, one for role in the offense and one for obstruction of
justice. Neither of these complaints need occupy us for long.
1. Role in the Offense. U.S.S.G. 3B1.1(a) provides 1. Role in the Offense. ____________________
for elevating a defendant's BOL by four levels if the district
court makes both a status determination (that the defendant was
"an organizer or leader of a criminal activity") and a scope
determination ("that the defendant's criminal activity involved
five or more participants or was otherwise extensive"). We have
explicated this proviso in a series of opinions, see, e.g., ___ ____
United States v. Rostoff, 53 F.3d 398, 413-14 (1st Cir. 1995); ______________ _______
Tejada-Beltran, 50 F.3d at 110-12; United States v. McDowell, 918 ______________ _____________ ________
F.2d 1004, 1011-12 (1st Cir. 1990), and it would be pleonastic to
rehearse that jurisprudence here. Two comments should suffice.
First, the determination of a defendant's role in an
____________________
6In any event, every other circuit that has grappled with
this claim has rejected the arguments necessary to find 2D1.1
in violation of the constitutional guarantee of equal protection.
See, e.g., United States v. Moore, ___ F.3d ___, ___ (2d Cir. ___ ____ ______________ _____
1995) [No. 94-1330, slip op. at 4-7]; United States v. Cherry, 50 _____________ ______
F.3d 338, 342-44 (5th Cir. 1995); United States v. Williams, 45 _____________ ________
F.3d 1481, 1485-86 (10th Cir. 1995); United States v. Butler, 41 _____________ ______
F.3d 1435, 1442 (11th Cir.), cert. denied, 115 S. Ct. 1987 _____ ______
(1995); United States v. Johnson, 40 F.3d 436, 439-41 (D.C. Cir. _____________ _______
1994), cert. denied, 115 S. Ct. 1412 (1995); United States v. _____ ______ _____________
McMurray, 34 F.3d 1405, 1413 (8th Cir. 1994), cert. denied, 115 ________ _____ ______
S. Ct. 1164 (1995); United States v. Frazier, 981 F.2d 92, 95 (3d _____________ _______
Cir. 1992), cert. denied, 113 S. Ct. 1661 (1993). _____ ______
10
offense is necessarily fact-specific. Appellate courts review
such determinations only for clear error. See Garcia, 954 F.2d ___ ______
at 18; Dietz, 950 F.2d at 52. Thus, absent a mistake of law, _____
battles over a defendant's status and over the scope of the
criminal enterprise will almost always be won or lost in the
district court. See McDowell, 918 F.2d at 1011 (urging "that ___ ________
considerable respect be paid to the views of the nisi prius
court" in connection with such findings) (quoting United States _____________
v. Ocasio, 914 F.2d 330, 333 (1st Cir. 1990)). In this case, we ______
see no hint of clear error in the trial court's determination
that appellant was the leader of an enterprise of the requisite
size.
Appellant strives to avoid clear-error review by
isolating a supposed mistake of law. He says that the court
erred in making its scope determination; there could not have
been "five or more participants" because only convicted
individuals can be counted, and, here, the government indicted no
more than three persons (Graciani, Delgado, and Encarnacion).
The argument cannot withstand the mildest scrutiny. The law is
pellucid that a scope determination under section 3B1.1(a) turns
not on the number of people convicted, but on the number of
persons involved in the criminal activity, whether or not
indicted (let alone convicted). See Dietz, 950 F.2d at 53. That ___ _____
is, the defendant's BOL may be elevated under section 3B1.1(a)
"as long as the record permits the sentencing court to make `a
specific finding, based on a preponderance of the evidence, which
11
pinpoints [the participants] with enough particularity to give
credence to the upward adjustment.'" Tejada-Beltran, 50 F.3d at ______________
113 (quoting McDowell, 918 F.2d at 1011). ________
The record before us clears this hurdle with room to
spare. In addition to Delgado, Encarnacion, G.R.M., and
appellant himself, the PSI Report states without contradiction
that appellant was the leader and organizer of a band, mostly
comprised of juveniles, that was involved, inter alia, in drug _____ ____
trafficking activities. The numerosity requirement was,
therefore, satisfied.7 See, e.g., United States v. Diaz- ___ ____ ______________ _____
Villafane, 874 F.2d 43, 48 (1st Cir.) (approving similar role-in- _________
the-offense adjustment despite lack of express identification of
all co-participants), cert. denied, 493 U.S. 862 (1989). _____ ______
2. Obstruction of Justice. The district court 2. Obstruction of Justice. ________________________
increased appellant's BOL by two levels under U.S.S.G. 3C1.1.
The court predicated the enhancement on a finding that appellant
threatened both a confidential informant and a cooperating
codefendant in an effort to influence their testimony against
him. Appellant now challenges the adjustment on the basis that
____________________
7To trigger 3B1.1(a), a scope determination must yield a
supportable finding that the criminal activity meets either the
numerosity requirement or the guideline's extensiveness __
requirement. See Rostoff, 53 F.3d at 413; Tejada-Beltran, 50 ___ _______ ______________
F.3d at 110. Here, the record shows not only numerosity but also
extensiveness. DEA agents seized a ledger that established a
wide-ranging pattern of drug trafficking activities, and a trash
bag containing thousands of empty vials used to package crack
cocaine. On this basis, the extensiveness requirement is
satisfied. See, e.g., Dietz, 950 F.2d at 53 (emphasizing ___ ____ _____
importance of "width, breadth, scope, complexity and duration of
the scheme" in connection with an extensiveness determination).
12
he was not charged with obstruction of justice and did not admit
to committing the underlying conduct.
This challenge is too little, too late. Appellant
never advanced this objection in the court below. It is black
letter law that, "in connection with sentencing as in other
contexts, . . . arguments not seasonably addressed to the trial
court may not be raised for the first time in an appellate
venue." Dietz, 950 F.2d at 55; accord United States v. Piper, 35 _____ ______ _____________ _____
F.3d 611, 620 n.6 (1st Cir. 1994), cert. denied, 115 S. Ct. 1118 _____ ______
(1995); Sepulveda, 15 F.3d at 1202. Consequently, appellant's _________
challenge is foreclosed.
D. D. __
The Eighth Amendment The Eighth Amendment ____________________
Appellant contends that a 280-month sentence for the
distribution of so paltry an amount of crack cocaine constitutes
cruel and unusual punishment in derogation of the Eighth
Amendment. We do not agree.
The Eighth Amendment does not require a precise
calibration of crime and punishment in noncapital cases. See ___
United States v. Saccoccia, ___ F.3d ___, ___ (1st Cir. 1995) _____________ _________
[No. 93-1618, slip op. at 72]. At most, the Eighth Amendment
gives rise to a "narrow proportionality principle," Harmelin v. ________
Michigan, 501 U.S. 957, 997 (1991) (opinion of Kennedy, J.), ________
forbidding only extreme sentences that are significantly
disproportionate to the underlying crime. See id. at 1001; see ___ ___ ___
also Solem v. Helm, 463 U.S. 277, 288 (1983); Saccoccia, ___ F.3d ____ _____ ____ _________
13
at ___ [slip op. at 72]; United States v. Munoz, 36 F.3d 1229, _____________ _____
1239 (1st Cir. 1994), cert. denied, 115 S. Ct. 1164 (1995). _____ ______
It is, therefore, unsurprising that, with a regularity
bordering on the echolalic, courts have repulsed Eighth Amendment
challenges to lengthy incarcerative sentences in drug cases. For
example, in Hutto v. Davis, 454 U.S. 370, 374 (1982), the Supreme _____ _____
Court upheld a 40-year prison sentence for possessing nine ounces
of marijuana with distributive intent. More recently, a clear
majority of the Justices in Harmelin, while differing on the ________
constitutional status of proportionality review, found
insufficient disproportionality to forestall a mandatory sentence
of life without parole for possession of over 650 grams of
cocaine. Recent opinions of the courts of appeals are to like
effect. See, e.g., Munoz, 36 F.3d at 1239 (holding that a 240- ___ ____ _____
month sentence meted out for participation in a crack-selling
conspiracy involving less than 900 grams of cocaine base accorded
with the Harmelin standard); United States v. Wesley, 990 F.2d ________ _____________ ______
360, 367 (8th. Cir. 1993) (holding that 100-to-1 sentencing ratio
between cocaine and crack cocaine does not violate the Eighth
Amendment). With these cases as a reference point, appellant's
sentence cannot successfully be attacked on Eighth Amendment
grounds.
E. E. __
The Motion To Remand The Motion To Remand ____________________
Following the submission of the parties' appellate
briefs, appellant's new counsel filed a motion in this court
14
asking us to withhold decision and remand the case to the
district court for a hearing on "newly discovered evidence" and
for a new trial.8 The motion was accompanied by an affidavit of
G.R.M. (now identified as German R. Maldonado) that purports to
absolve appellant of responsibility for the offenses of
conviction. The motion asserts that this "newly discovered
evidence" warrants the relief requested. We think not.
In the first place, appellant puts the cart before the
horse. Concededly, a motion for a new trial based on newly
discovered evidence can be brought while a criminal case is
pending on direct appeal. See Fed. R. Crim. P. 33.9 The ___
question remains, however, whether the court of appeals is the
appropriate forum in which a criminal defendant may initiate
review of a Rule 33 motion by the district court, and, relatedly,
whether a remand is necessary before the district court can
____________________
8In point of fact, counsel filed two motions, both of which
rely on the same affidavit. To the extent that the second motion
can be read as requesting different relief a hearing as to
whether the plea agreement is null and void (and, presumably,
whether the appellant should be permitted to withdraw his plea)
we deny it without prejudice to the filing of a proper petition
under 28 U.S.C. 2255 (1988). The plea-withdrawal argument was
not raised below and, in the absence of essential factfinding, we
decline to entertain it on direct appeal.
9The rule states in pertinent part:
A motion for a new trial based on the ground
of newly discovered evidence may be made only
before or within two years after final
judgment, but if an appeal is pending the
court may grant the motion only on remand of
the case.
Fed. R. Crim. P. 33.
15
entertain a Rule 33 motion. In general, both parts of this
inquiry evoke a negative response.
A criminal defendant who aspires to employ Rule 33
while his conviction is pending on direct appeal is not obliged
either to file a motion for remand in the court of appeals or to
seek any type of leave from that court. To the contrary, the
proper procedure under such circumstances is for the defendant,
without further ado, to file his Rule 33 motion in the district
court. See United States v. Phillips, 558 F.2d 363, 363 (6th ___ _____________ ________
Cir. 1977) (per curiam). Once the motion has been so docketed,
the district court has jurisdiction to entertain it
notwithstanding the pendency of the appeal, and may either deny
it on the merits or indicate an intention to grant it. See ___
United States v. Fuentes-Lozano, 580 F.2d 724, 725-26 (5th Cir. _____________ ______________
1978) (per curiam); United States v. Frame, 454 F.2d 1136, 1138 ______________ _____
(9th Cir.) (per curiam), cert. denied, 406 U.S. 925 (1972); see _____ ______ ___
also United States v. Cronic, 466 U.S. 648, 666 n.42 (1984) ____ ______________ ______
(noting correct procedural progression). If the district court
denies the motion, the defendant may take a further appeal; and
if the court proposes to grant the motion, it ordinarily will
issue a written statement to that effect so that the defendant,
armed with the advisory, may then request an order of remand from
the appellate court. See Frame, 454 F.2d at 1138. ___ _____
We adopt this protocol, requiring a Rule 33 motion to
be filed initially in the district court when a direct appeal of
a criminal conviction is pending, for four main reasons. First,
16
the protocol accords with the weight of authority. See, e.g., ___ ____
Phillips, supra; Frame, supra. Second, it comports with the ________ _____ _____ _____
discernible intention of the drafters of the 1944 amendments to
Rule 33. See, e.g., Frame, 454 F.2d at 1138 (discussing 1944 ___ ____ _____
amendments). Third, it coheres with our established procedural
paradigm for handling parallel situations on the civil side. See ___
Toscano v. Chandris, 934 F.2d 383, 386 (1st Cir. 1991) _______ ________
(explaining that "if an appeal is pending, a Rule 60(b) motion
should first be filed in the trial court, and the district judge,
if inclined to allow it, may then request remand"); Commonwealth ____________
of Puerto Rico v. S.S. Zoe Colocotroni, 601 F.2d 39, 42 (1st Cir. ______________ ____________________
1979) (ordaining comparable procedure when, during the pendency
of an appeal from a final judgment, a party claims to have
discovered an exogenous basis for relief from the judgment).
Last but not least, principles of sound judicial
administration counsel that the district court should be allowed
to exercise its discretion to the fullest extent permissible
under Rule 33 before the court of appeals becomes enmeshed. See ___
Frame, 454 F.2d at 1138. The protocol we adopt today meets this _____
objective. It takes advantage of the district court's greater
familiarity with the case; it husbands judicial resources, thus
eliminating the need for a time-consuming remand in those
situations in which the trial court discerns no basis for
granting a new trial; and, finally, it ensures that the merits of
the motion for new trial will be heard rapidly, while at the same
17
time keeping the earlier appeal on track.10
Since appellant did not follow this protocol in moving
to remand, his motion must in all events be denied for procedural
reasons. But, there is an added wrinkle. If the problem were
purely procedural, we would simply deny the motion to remand
without prejudice to appellant's pursuit of redress under Rule 33
in the district court. See United States v. Boberg, 565 F.2d ___ _____________ ______
1059, 1063 (8th Cir. 1977) (affirming conviction in analogous
circumstances "without prejudice to any motion to the district
court for a new trial on the grounds of newly discovered
evidence"). Here, however, the vice is more profound; the motion
is also substantively infirm. We explain briefly.
By its express terms, Rule 33 is confined to those
situations in which a trial has been had. In the court below,
appellant admitted his guilt, abjuring a trial. A defendant who ________
enters a guilty plea cannot thereafter use Rule 33 as a wedge to
undo his acknowledgement that he committed the offense. See ___
United States v. Collins, 898 F.2d 103, 104 (9th Cir. 1989) (per _____________ _______
curiam); United States v. Lambert, 603 F.2d 808, 809 (10th Cir. _____________ _______
1979); Williams v. United States, 290 F.2d 217, 218 (5th Cir. ________ _____________
1961) (per curiam); see also United States v. Prince, 533 F.2d ___ ____ _____________ ______
____________________
10The Fifth Circuit has suggested in dictum that "to avoid
delay" a criminal defendant may, alternatively, ask the court of
appeals to remand before initiating proceedings to in the
district court. See Fuentes-Lozano, 580 F.2d at 726. If such an ___ ______________
alternative exists at all a question on which we need not pass
it is available only in cases characterized by exceptional
circumstances (including the looming prospect of unusual
hardship).
18
205, 208 (5th Cir. 1976) (applying same principle in bar of
proffered Rule 33 motion following plea of nolo contendere); see ___
generally 3 Charles A. Wright, Federal Practice and Procedure _________ _______________________________
556, at 313 (2d ed. 1982); cf. United States v. Cordero, 42 F.3d ___ _____________ _______
697, 698 (1st Cir. 1994) (holding that a defendant, by entering
an unconditional plea of guilty, waives any right to challenge
his conviction on the basis of earlier, non-jurisdictional
rulings). In fine, Rule 33 "applies only to cases in which a
trial, either to the court or to a jury, has taken place."
Lambert, 603 F.2d at 809. _______
We need go no further. Because Fed. R. Crim. P. 33
cannot be invoked to undermine a conviction predicated upon a
guilty plea, we deny appellant's motion to remand. To do
otherwise would promote an exercise in futility.
Affirmed. Affirmed. ________
19