USCA1 Opinion

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,

amended as follows:

On page 18, line 4, "Trial" should be "trial".

_____

1995,

is

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

Sanchez Rivera,
_______________

Federal

Public

Nogueras-Castro,
_______________

Assistant Federal

of

Defender,

the court,
and

Benicio
_______

Miguel A. A.
______________

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,
SELYA,

Circuit Judge.
Circuit Judge.
______________

challenges

grounds.

He also belatedly moves to remand on the basis of newly

for

an

the first time the

sentence

imposed

below

on

Edgar

Graciani

discovered evidence

the

Defendant-appellant

initiative that requires us to

procedural framework that

several

set out

pertains to a

motion brought under Fed. R. Crim. P. 33 while a criminal case is

pending

on

direct

appeal,

interplay between Rule 33 and a

and,

relatedly,

to

examine

defendant's guilty plea.

the

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

from

plea rather than a verdict, we derive the pertinent facts

the presentence

government's

418.2(a),1

statement

and

the

disposition hearings.

F.3d 105, 107 (1st Cir.

50, 51 (1st Cir. 1991).

____________________

investigation

served

transcripts

See
___

report

pursuant

of

(PSI

to

the

United States v.
_____________

Report),

D.P.R.

Loc.

change-of-plea

the

R.

and

Tejada-Beltran, 50
______________

1995); United States v. Dietz,

_____________
_____

950 F.2d

1The local rule provides:

In

all

cases

where

Presentence

Investigation Report is ordered . . . counsel

for the government shall
and

serve

statement
version

upon the
setting

of

the

file with the Court

defendant's
forth
facts

the

counsel, a
government's

leading

to

the

acceptance of criminal responsibility.

D.P.R. Loc.

R. 418.2(a).

In this case,

the defendant did

object to the statement submitted by the government.

not

On

sell

or about

January 14,

one-eighth of a kilogram of crack

customer who was,

in reality,

evening of January 15,

(Delgado),

full

1992, appellant

told the agent

approximately

powdered cocaine.

parties

revealed

cocaine (125 grams) to a

a government operative.

On

the

appellant's courier, Carlos Delgado Rojas

that appellant

125 grams of crack then

deliver

arranged to

80

could not

supply the

and there; instead, he proposed to

grams of

crack

and

45-50 grams

of

Once the agent agreed to the substitution, the

consummated

the

transaction.

Subsequent

measurement

that Delgado had delivered 85.3 grams of crack and 54.4

grams of cocaine powder.

The agent

Appellant

agreed to

expressed an interest

sell him

in future

a half-kilogram

purchases.

of crack,

to be

delivered

appeared

Castro

on January 24.

at the

delivery site

(Encarnacion)

apprehended and

and a

accompanied by

juvenile

the arresting

The officers also

powdery

At the appointed time, Delgado, armed,

(G.R.M.).

officers seized a

seized three plastic bags

substance

later

Juan Encarnacion

determined

investigation revealed that appellant

to

The

men were

loaded pistol.

containing a white,

be

sugar.2

Further

gave the seized firearm to

____________________

2Appellant eventually admitted that

the half-kilogram of crack,
the transaction by
substituted sugar
that

he might

he had agreed to purvey

and stated that he had

"cooking" that

amount of cocaine.

for crack, claiming that he

be apprehended.

Dray,
____

thieves,

901 F.2d
may all

1132, 1134
too often be,

(1st

suggest that

even among

bard's phrase,

scutcheon.'") (quoting William Shakespeare,

then

Cf. United States

___ _____________

Cir.) ("Honor,

in the

He

had a premonition

The circumstances

something more sinister might have been afoot.

v.

prepared for

`a mere

Henry IV Part I, act

_______________

V, sc. 1 (1598)), cert. denied, 498 U.S. 895 (1990).

_____ ______

Delgado for protection during the drug transaction.

The

grand

jury

indicted

Encarnacion on a medley of charges.

counts of the

Graciani,

Delgado,

and

Appellant was named in seven

superseding indictment.

plead guilty to count 1 (which charged

He eventually agreed

to

the unlawful distribution

of 85.3 grams

of crack cocaine on January 15

U.S.C.

841(a)(1)) and

count

carriage

of

during

firearm

trafficking offense in

plea

agreement

left

7 (which

and

violation of

the

in violation of 21

charged

in

relation

18 U.S.C.

sentence in

the unlawful

the

to

drug

924(c)).

The

court's

discretion

(subject, of course, to the constraints imposed by the sentencing

guidelines).

The

district

PSI

court

commissioned

appellant on

July 7, 1992,3

took

Report.

The

appellant's

court

plea

originally

but then reconsidered.

and

sentenced

We do

not

concern ourselves with the withdrawn sentence, but focus upon the

second disposition hearing (held

attributed

to appellant

(a)

actually supplied on January

on August 2, 1994).

the weight

of

The court

the crack

15, (b) the weight of

cocaine

the powdered

cocaine actually supplied on that date, and (c) the weight of the

crack cocaine promised for

the

delivery on January 24.

Drug Quantity Table, the

level (BOL)

at

36.

Then, using

court set appellant's base offense

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

as

per the plea agreement.

The ensuing

reconsideration of the

sentence did not implicate the dismissed counts.

that time

500 G but less than 1.5 KG of Cocaine Base").

The

court

added six

aggravating role in the

obstruction of

levels

four for

offense, see id.

___ ___

justice, see
___

id.
___

3C1.1

3B1.1(a), and

first

offender,

sentencing

these

three

3E1.1, bringing

Given appellant's status as

computations

range (GSR) of 262-327

two for

and subtracted

levels for acceptance of responsibility, see id.

___ ___

the total offense level (TOL) to 39.

appellant's

months.

yielded

The

guideline

court imposed a

280-month incarcerative sentence on count 1, and added a 60-month

consecutive

minimum.

sentence

See 18 U.S.C.
___

on

count

7 to

924(c)(1).

accommodate

mandatory

This appeal ensued.

II.
II.
___

Discussion
Discussion
__________

Appellant advances a myriad

the

appeal and

the

of arguments in support of

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

Sepulveda,
_________

sentence.

See United States

___ _____________

v.

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

crack cocaine

involved in the count of

conviction.

Appellant's

fusillade lands well wide of the target.

Under

the

attributed drugs

relevant

guidelines,

is to

conduct.

be derived

The

of the same

course of conduct

offense

conviction."

conduct is not limited

aggregate

from

the sum

proper figure

therefore, by careful consideration

of

the

can

of

total of

all

only

be computed,

of all acts "that were

or common scheme

U.S.S.G.

amount

or plan as

1B1.3(a)(2).

part

the

"Relevant

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

______________
___ ____ ______

Bradley, 917
_______

Specifically

F.2d at

and

605; U.S.S.G.

in

1B1.3,

direct contradiction

15;

comment. (backg'd).

to

the

position

asserted

by

appellant

relevant

uncharged conduct and conduct

charged

and then dropped.

conduct

may

include

both

underbracing counts that have been

See Tejada-Beltran, 50
___ ______________

F.3d at 110;

Garcia, 954 F.2d at 15.

______

That ends the

sentencing court's

error.

Here,

matter.

drug quantity

determination

we review a

only for

clear

See Sepulveda, 15 F.3d at 1196; Bradley, 917 F.2d at 605.

___ _________
_______

the district court supportably

the crack and powdered

same

conduct.

course

of

found that the delivery of

cocaine on January 15, and

to sell additional crack

the

In the usual case,

cocaine on January 24, were all part of

criminal

We see no error.

the agreement

activity,

and,

thus,

relevant

By

sugar,

and

appellant

like token,

never

the

recovered

fact that

the government

the half-kilogram

of

seized

crack

that

promised to supply on January 24, does not sweeten the

bottom line by precluding reference to the agreed quantity in the

sentencing determination.

issue,

which

Indeed, "every court

to consider the

including this one, has concluded that an amount of drugs

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

circuits,

criticizes

specifically

cocaine

to

the

U.S.S.G.

one

____________________

fact

2D1.1,

hundred

sentencing purposes.5

protestation, now familiar in all the

that

equate

kilograms

We have

the

one

of

guidelines,

kilogram

powdered

of

cocaine

and

crack

for

squarely rejected claims that the

4To be sure, there

are exceptions to this rule,

U.S.S.G.

2D1.1,

negotiated

amount if "the court finds that the defendant did not

intend to

comment.

produce and was

(n.12)

(requiring

see, e.g.,
___ ____

not reasonably

exclusion

capable of

of

producing

[it]"); United States v. Muniz, 49 F.3d 36, 41-42 (1st Cir. 1995)
_____________
_____
(discussing application of
F.2d

1257, 1265

note 12); United States v. Gessa, 971

_____________
_____

(6th Cir.

1991) (remanding

respect to defendant's intent

not brought

for findings

with

and capability), but appellant has

his situation within the confines

of any recognized

exception.

5The
guideline
equivalency
See
___

Sentencing
amendments

Commission
that

ratio between

recently

would
crack

substantially

cocaine and

60 Fed. Reg. 25,074, 25,075-76 (1995).

submitted

proposed

reduce

the

powdered cocaine.

The proposed changes

conversion

formula has

a greater

and, thus, transgresses the Equal

Amendment.

Cir.),

See United States

___ _____________

impact on

Protection Clause of the Fifth

v. Singleterry, 29
___________

cert. denied, 115 S. Ct. 647

_____ ______

sentencing distinction

between crack

constitutional, finding no

either Congress

animus or

sufficient

or the

African-Americans,

(1994).

F.3d 733 (1st

There, we held the

and powered cocaine

significantly probative evidence that

Sentencing Commission harbored

discriminatory intent.

rational basis

resultant sentencing scheme.

to be

for

Id.
___

at 741.

the conversion

See id. at 740.

___ ___

We

a racial

also found a

formula and

the

It is

axiomatic

that, "[i]n

newly constituted panels are,

panel decisions

closely on

multi-panel

circuit,

for the most part, bound

by prior

point."

Williams v. Ashland Eng'g

________
______________

Co., 45 F.3d 588, 592 (1st Cir. 1995),

___

petition for cert. filed,

________ ___ _____ _____

63

(No. 94-1804-CFX).

U.S.L.W. 3819

(U.S. May

2, 1995)

principle applies in criminal as well as civil cases.

United States v.
_____________

Wogan, 938
_____

denied, 502 U.S. 969 (1991);

______

980,

985

(1st

Cir.)

F.2d 1446, 1449

See, e.g.,
___ ____

(1st Cir.),

see also Lacy v. Gardino,

___ ____ ____
_______

(applying

This

principle

in

cert.
_____

791 F.2d

habeas

corpus

____________________

will become
action to
Commission
become

effective on November 1,
the contrary.
has

not yet

See 28
___
decided

1995, absent congressional

U.S.C.

994(p)

whether the

law, should apply retrospectively.

(1988).

changes,

See 60

The

if they

Fed. Reg. at

___
25,074.

If the amendments

retroactive application,

are eventually determined to

appellant may then be in

seek appropriate relief in the district court.

v. Saccoccia,
_________
1618,

___ F.3d ___,

slip op. at

191, 197

n.10 (1st

subject,

but merely

___ n.27

Cir. 1992).
note

a position to

See United States

___ _____________

(1st Cir. 1995)

65 n.27]; United States

_____________

[No. 93-

v. Connell, 960 F.2d

_______

We express

the possibility

warrant

no opinion
and proceed

on the

without

further reference to what the future may bring.

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

BOL,

one for

justice.

Role in the Offense.

Role in the Offense.
____________________

one for

U.S.S.G.

by four levels

both a status determination (that

organizer or

leader of

determination ("that

five

offense and

elevating a defendant's BOL

court makes

"an

in the

adjustments to

his

obstruction of

Neither of these complaints need occupy us for long.

1.
1.

for

role

of two upward

a criminal

3B1.1(a) provides

if the district

the defendant was

activity") and

the defendant's criminal

a scope

activity involved

or more participants or was otherwise extensive").

We have

explicated this

proviso

in a

United States v. Rostoff, 53

______________
_______

series

of opinions,

F.3d 398, 413-14

see,
___

e.g.,
____

(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.

First, the

Two comments should suffice.

determination of

a defendant's role

in an

____________________

6In any event,

every other circuit

this claim has rejected

that has grappled

the arguments necessary to find

with

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

(1995);

(11th

Cir.), cert.
_____

denied,
______

115 S.

Ct.

1987

United States v. Johnson, 40 F.3d 436, 439-41 (D.C. Cir.

_____________
1994), cert. denied,
_____ ______

_______
115 S.

McMurray, 34 F.3d 1405,

________

Ct. 1412 (1995);

United States
_____________

1413 (8th Cir. 1994), cert.

_____

v.

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.

such determinations only for

at 18; Dietz,

950 F.2d at

Appellate

clear error.

52.

Thus,

courts review

See Garcia,
___ ______

954 F.2d

absent a mistake of

law,

_____

battles

over

criminal

a defendant's

enterprise will

district court.

considerable

court" in

status and

almost always

See McDowell,
___ ________

respect

over

be paid

see no hint

of clear

that appellant was the

error in the

or lost

in the

1011 (urging

views

connection with such findings)

v. Ocasio, 914 F.2d 330, 333 (1st

______

of the

be won

918 F.2d at

to the

the scope

of the

"that

nisi prius

(quoting United States

_____________

Cir. 1990)).

In this case, we

trial court's

determination

leader of an enterprise of

the requisite

size.

Appellant

isolating

erred

strives

a supposed mistake

in making

its scope

to

avoid

of law.

clear-error

He

says that

determination; there could

review

by

the court

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,

The argument cannot withstand

pellucid that a scope

not on

the number

persons

involved

"as

the

defendant's BOL may

long as the

The

law is

determination under section 3B1.1(a) turns

convicted, but

criminal

indicted (let alone convicted).

is, the

Encarnacion).

the mildest scrutiny.

of people

in

Delgado, and

activity,

on

the number

whether

or

See Dietz, 950 F.2d at 53.

___ _____

of

not

That

be elevated under

section 3B1.1(a)

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

credence to the upward adjustment.'"

to give

Tejada-Beltran, 50 F.3d at
______________

113 (quoting McDowell, 918 F.2d at 1011).

________

spare.

appellant

The record before

us clears this

In

Delgado,

addition

himself, the

that appellant was

comprised

to

Encarnacion,

PSI Report states

the leader

of juveniles, that

hurdle with room

G.R.M.,

to

and

without contradiction

and organizer of

was involved, inter

_____

a band,

mostly

alia, in drug
____

trafficking

therefore,

activities.

satisfied.7

The

See,
___

numerosity

e.g.,
____

requirement

United States
______________

v.

was,

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.
2.

Obstruction of Justice.
Obstruction of Justice.
________________________

increased appellant's

BOL by

codefendant

him.

both

in an

Appellant now

____________________

confidential

effort to

district

two levels under

The court predicated the enhancement on

threatened

The

U.S.S.G.

court

3C1.1.

a finding that appellant

informant

influence their

and

cooperating

testimony against

challenges the adjustment on the

basis that

7To trigger

3B1.1(a), a

supportable finding
numerosity

that the criminal activity

requirement

requirement.

or
__

See Rostoff,
___ _______

F.3d at 110.

scope determination must

the

meets either the

guideline's

53 F.3d

at 413;

yield a

extensiveness

Tejada-Beltran, 50
______________

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

cocaine.

this

the

satisfied.

On

See,
___

basis,
e.g.,
____

Dietz,
_____

importance of "width, breadth,

used to

extensiveness
950

F.2d

package crack
requirement

at 53

is

(emphasizing

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

never

challenge is

advanced this objection in

letter law

that,

contexts, . . .

court may

venue."

too

"in connection

little, too

late.

the court below.

with

It is black

sentencing as

arguments not seasonably addressed to

not be

raised

for the

first

time in

Appellant

an

in

other

the trial

appellate

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,
_________

at 1202.

15 F.3d

challenge is foreclosed.

D.

Consequently, appellant's

D.
__

The Eighth Amendment

The Eighth Amendment
____________________

Appellant contends

distribution of

cruel

and

the

punishment

in

derogation

of

the

Eighth

precise

We do not agree.

The

calibration

Eighth

Amendment

of crime

United States v.
_____________

[No. 93-1618,

gives rise

280-month sentence for

so paltry an amount of crack cocaine constitutes

unusual

Amendment.

that a

does

and punishment in

Saccoccia, ___
_________

slip op.

at 72].

U.S.

957, 997

require

noncapital cases.

F.3d ___, ___

At most, the

to a "narrow proportionality

Michigan, 501
________

not

(1st Cir.

See
___

1995)

Eighth Amendment

principle," Harmelin v.
________

(1991) (opinion

of Kennedy,

J.),

forbidding

only

extreme

sentences

disproportionate to the underlying

that

crime.

are

significantly

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

majority

of the

constitutional

Justices in

status

of

intent.

More

recently, a clear

Harmelin, while
________

differing on

proportionality

review,

the

found

insufficient disproportionality to forestall a mandatory sentence

of

life without

parole

cocaine.

Recent opinions

effect.

See, e.g., Munoz,

___ ____ _____

month

sentence meted

for possession

of

of the courts of

over 650

grams

appeals are to

36 F.3d at 1239 (holding that

out for

participation in

of

like

a 240-

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

Amendment).

sentence

With

cannot

crack cocaine does

these cases as a

successfully

not violate

the Eighth

reference point, appellant's

be attacked

on

Eighth Amendment

grounds.

E.
E.
__

The Motion To Remand

The Motion To Remand
____________________

Following

briefs,

the submission

appellant's new

of

counsel filed

14

the

parties'

motion in

appellate

this court

asking

us

to

withhold decision

district court for

for a new trial.8

G.R.M.

absolve

a hearing on "newly

The

conviction.

remand

the

case to

the

discovered evidence" and

motion was accompanied by an affidavit of

(now identified as German

appellant

and

of

The motion

R. Maldonado) that purports to

responsibility

asserts

that

evidence" warrants the relief requested.

for

the

offenses

this "newly

We think not.

of

discovered

In

horse.

the first place, appellant puts the cart before the

Concededly, a

discovered

evidence

pending on

direct

question remains,

appropriate

motion

can be

appeal.

for a

new trial

brought

See
___

while a

Fed. R.

however, whether the

forum in

which

based on

criminal

Crim.

case is

P. 33.9

court of appeals

a criminal

newly

defendant may

The

is the

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.

can be
whether

read as

To the extent that the second motion

requesting different

the plea agreement

is null

relief
and void

hearing as

to

(and, presumably,

whether the appellant should be permitted to withdraw his plea)

we deny it without prejudice
under

28 U.S.C.

to the filing of a proper

2255 (1988).

petition

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

judgment,

within
but if

court may grant the

two

years

an appeal

is

after

final

pending 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.

criminal defendant

who

aspires to

employ Rule

33

while his conviction is

pending on direct appeal is

either to file a motion

for remand in the court of appeals or to

seek any

from that court.

type of leave

proper procedure

under such circumstances is

without further ado,

court.

See
___

United States v.
_____________

district

notwithstanding

it

on the

court

Once

has

Phillips, 558 F.2d

________

in the district

363, 363

the motion has been so

jurisdiction

the pendency of the appeal,

merits or

contrary, the

for the defendant,

to file his Rule 33 motion

Cir. 1977) (per curiam).

the

To the

not obliged

indicate an

to

(6th

docketed,

entertain

it

and may either deny

intention to

grant it.

See
___

United States v. Fuentes-Lozano, 580

_____________
______________

F.2d 724, 725-26 (5th

1978) (per curiam); United States v. Frame, 454 F.2d

______________
_____

(9th Cir.) (per curiam),

also
____

cert. denied, 406 U.S. 925

_____ ______

United States v.
______________

(noting correct

U.S.

procedural progression).

denies the motion, the

if the court

Cronic, 466
______

648, 666

If

issue a written statement

grant the motion,

1136, 1138

(1972); see
___

n.42 (1984)

the district court

defendant may take a further

proposes to

Cir.

appeal; and

it ordinarily

to that effect so that

will

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

be filed initially in the district court when

to

a direct appeal of

criminal conviction is pending, for four main reasons.

First,

16

the

protocol accords with the

Phillips,
________

supra; Frame,
_____ _____

discernible

Rule 33.

supra.
_____

weight of authority.

Second, it

intention of the drafters of

See, e.g.,
___ ____

amendments).

Frame, 454 F.2d

_____

Third, it coheres with

See, e.g.,
___ ____

comports with

the

the 1944 amendments to

at 1138 (discussing

1944

our established procedural

paradigm for handling parallel situations on the civil side.

Toscano
_______

v.

(explaining

Chandris,
________

934

F.2d

that "if an appeal

383,

386

(1st

is pending, a

Cir.

See
___

1991)

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

of

an

comparable procedure when,

appeal from

a final

judgment,

during the pendency

a party

claims

to have

discovered an exogenous basis for relief from the judgment).

Last

but

not

least,

administration counsel that the

to

exercise its

discretion

principles

of

sound

judicial

district court should be allowed

to the

fullest extent

permissible

under Rule 33 before

the court of appeals becomes

Frame, 454 F.2d at 1138.

_____

objective.

The protocol we adopt

It takes advantage

of the district

familiarity with

the case; it husbands

eliminating

need

situations

the

in

which

for

the

court

today meets this

court's greater

judicial resources, thus

time-consuming

trial

enmeshed. See
___

remand

discerns no

in

basis

those

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

purely procedural,

we

added wrinkle.

would simply

If

deny the

the problem were

motion to

remand

without prejudice to appellant's pursuit of redress under Rule 33

in

the district

1059,

1063 (8th

court.

Cir. 1977)

circumstances "without

court

for a

new

See
___

trial

United States v.
_____________

(affirming conviction

prejudice to

on

Boberg, 565 F.2d

______

the

any motion to

grounds

of

newly

in analogous

the district

discovered

evidence").

Here, however, the vice is more profound; the motion

is also substantively infirm.

By

situations in

appellant

its express

We explain briefly.

terms, Rule

which a trial has

33 is

been had.

confined

In

the court below,

admitted his guilt, abjuring a trial.

________

A defendant who

enters a guilty plea cannot thereafter use Rule 33 as

undo

his acknowledgement

United States
_____________

committed

a wedge to

the offense.

See
___

v. Collins, 898 F.2d 103, 104 (9th Cir. 1989) (per

_______

curiam); United States v.

_____________

1979); Williams v.
________

1961)

that he

to those

Lambert, 603 F.2d 808, 809

_______

United States,
_____________

(per curiam); see also

___ ____

____________________

290 F.2d 217,

United States v.
_____________

(10th Cir.

218 (5th

Cir.

Prince, 533 F.2d

______

10The Fifth Circuit has suggested

in dictum that "to

avoid

delay" a criminal defendant may, alternatively, ask the court

appeals

to

remand

district court.

before

available

circumstances

proceedings

to

See Fuentes-Lozano, 580 F.2d at 726.

___ ______________

alternative exists at all

it is

initiating

only in

(including

in

of

the

If such an

a question on which we

need not pass

cases characterized

by exceptional

the

looming

prospect

of

unusual

hardship).

18

205,

208

(5th Cir.

1976) (applying

same

principle in

bar of

proffered Rule 33 motion following

generally
_________

plea of nolo contendere); see

___

3 Charles A. Wright, Federal Practice and Procedure

_______________________________

556, at 313 (2d ed. 1982); cf. United States v.

___ _____________

697, 698 (1st Cir.

an unconditional

his

rulings).

trial,

1994) (holding that a defendant,

plea of guilty,

conviction

on

the

In fine,

either

Cordero, 42 F.3d
_______

to the

basis

waives any right

of

earlier,

Rule 33 "applies

court

by entering

or to

to challenge

non-jurisdictional

only to cases

jury, has

in which a

taken place."

Lambert, 603 F.2d at 809.

_______

We need go

cannot be

guilty

no further.

invoked to undermine

plea,

we

Because Fed.

a conviction

deny appellant's

motion

R. Crim. P.

predicated upon

to

otherwise would promote an exercise in futility.

remand.

To

33

do

Affirmed.
Affirmed.
________

19