FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Leo T. Sorokin, U.S. District Judge]
C. Andrews for appellant.
Cynthia A. Young, Assistant United States Attorney, with whom
Andrew E. Lelling, United States Attorney, was on brief, for
Torruella, Thompson, and Kayatta, Circuit Judges.
THOMPSON, CIRCUIT JUDGE.
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. The district judge sentenced him to 136
months in prison.
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.
2016, when he (finally) settled on a lawyer (private attorney
Scott Gleason),  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.
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
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 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.
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 $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,  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).
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."
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.
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 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).
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.
• 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.
"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.
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 warrant in July 2015,
"the evidence of controlled buys had grown stale, with
the most recent" one "happening over 7 months"
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.
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. 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
those reasons, the district court did not err when it denied
the motion to suppress.
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 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. So the judge proposed to postpone the
hearing until the following Monday to let the parties think
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- 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.
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
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.
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
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. 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.
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.
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,
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.
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 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."
now appeals that decision, which we review for abuse of
discretion. See United States v. Pellerito, 878 F.2d
1535, 1538 (1st Cir. 1989).
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 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).