United States v. Ortiz , 6 F. App'x 46 ( 2001 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 99-1681
UNITED STATES,
Appellee,
v.
JUAN ORTIZ, A/K/A LENTO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Torruella, Chief Judge,
Campbell, Senior Circuit Judge,
and Stahl, Circuit Judge.
Van L. Hayhow on brief for appellant.
Juan Ortiz on brief pro se.
April 12, 2001
Per Curiam. Defense counsel for Juan R. Ortiz has
submitted an Anders brief and motion to withdraw, asserting
that there are no meritorious issues to be raised on appeal.
See Anders v. State of California, 386 U.S. 738, 744 (1967).
Ortiz filed a pro se supplemental brief raising a single
issue: that his attorney provided ineffective assistance of
counsel because he failed to seek a downward departure based
upon Ortiz’ pre-trial detention at the Wyatt Detention
Facility under unconstitutional conditions. Ortiz is
represented by new counsel on appeal.
Ortiz pled guilty to four counts of conspiracy and
distributing and possessing with intent to distribute
heroin. The plea was pursuant to a written plea agreement
in which the parties agreed that they would not seek a
departure from the applicable guideline sentencing range.
The transcript of the guilty plea hearing reveals that the
district court complied with the requirements under
Fed.R.Crim.P. 11.
The PSR recommended a two-level reduction in the
base offense level, beyond what was specified in the plea
agreement, because Ortiz met the criteria set forth in
U.S.S.G. § 5C1.2. Accordingly, the five-year statutory
minimum sentence did not apply. The PSR included a detailed
statement of facts, to which neither party objected. The
sentencing court followed the PSR’s recommendations,
including a three-level reduction for acceptance of
responsibility. The government complied with the plea
agreement, by recommending a sentence of 37 months, at the
low end of the applicable guideline sentencing range, and a
supervised release term of four years. The court accepted
that recommendation in imposing the sentence. Although the
plea agreement had included a waiver by Ortiz of his right
to appeal, the sentencing court did not enforce the waiver
and informed Ortiz of his right to appeal his sentence.
In a supplemental pro se brief, Ortiz argues that
his attorney provided ineffective assistance of counsel
because he did not seek a downward departure on the basis of
the conditions of Ortiz’ pre-trial detention at the Wyatt
Detention Facility, a non-federal, maximum security
facility. However, this court does not find the ineffective
assistance of counsel claim to be a meritorious appellate
issue.
First, this court would not be the proper forum for
Ortiz to first present this ineffective assistance of
counsel claim:
We have repeatedly held that “fact-
specific claims of ineffective
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assistance cannot make their debut on
direct review of criminal convictions,
but, rather must originally be presented
to, and acted upon by, the trial court.
United States v. Mala, 7 F.3d 1058, 1063
(1st Cir. 1993)(citing cases). We have
allowed exceptions only when the
critical facts are not in dispute and
the record is sufficiently developed to
allow reasoned consideration of the
claim. Id.”
United States v. Hoyle, 237 F.3d 1, 8 (1 st Cir. 2001)
(quoting United States v. Bierd, 217 F.3d 15, 23-24 (1st Cir.
2000).
Second, this court has never before held that
conditions of confinement constitute a permissible basis for
downward departure. Although some district courts have
granted a downward departure on that basis, “no clear
consensus exists as to the propriety of granting a downward
departure for conditions of pretrial confinement.” United
States v. Francis, 129 F.Supp.2d 612, 615 (S.D.N.Y. 2001)
(collecting cases).
Third, in his plea agreement, Ortiz agreed not to
seek a downward departure from the applicable guideline
sentencing range. Therefore, if his attorney had sought a
downward departure at sentencing, he would have acted
contrary to the terms of Ortiz’ plea agreement. Ortiz has
not indicated a desire to withdraw his plea. His attorney’s
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failure to breach the plea agreement could scarcely
constitute ineffective assistance of counsel in such
circumstances.
Our careful and thorough review of the entire
record, including transcripts of the change of plea and
sentencing hearings, does not reveal any meritorious grounds
for challenging Ortiz’ sentence or guilty plea.
Counsel’s motion to withdraw is granted. Ortiz’
conviction and sentenced are affirmed, without prejudice to
his raising his ineffective assistance of counsel claim in
a motion pursuant to 28 U.S.C. § 2255.
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