United States v. Lopez-Pastrana

United States Court of Appeals
For the First Circuit
No. 15-1894
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE LUIS LOPEZ-PASTRANA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Torruella, Lipez, and Barron,
Circuit Judges.
Miriam Ramos-Grateroles for appellant.
Michael A. Rotker, Attorney, U.S. Department of Justice, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, John P.
Cronan, Acting Assistant Attorney General, Criminal Division, and
Normary Figueroa-Ruiz, Assistant United States Attorney, were on
brief, for appellee.
May 4, 2018
LIPEZ, Circuit Judge. Appellant Jose Luis Lopez-
Pastrana, who was sentenced on drug and firearms charges pursuant
to a plea agreement, claims that the district court erred by
ordering a twelve-month term of home detention on the drug count
to be served after his mandatory minimum five-year term of
imprisonment on the firearms count. We agree that the home-
detention condition was imposed improperly and, accordingly,
remand the case for resentencing. We do not reach appellant's
pro se appellate claims, as they are either waived or not properly
before us.
I.
Lopez-Pastrana was charged in a four-count indictment
with two drug crimes and two weapons crimes. He entered into a
plea agreement in which he agreed to plead guilty to Count III,
possession with intent to distribute marijuana, and Count IV,
possession of a firearm in furtherance of a drug trafficking crime,
in exchange for dismissal of the remaining two counts. The plea
agreement set forth the parties' non-binding recommendation that
the court impose a sentence at the lower end of the Guidelines
range of zero to six months' imprisonment for Count III, and a
sixty-month sentence (the mandatory minimum) for Count IV. As
part of the agreement, Lopez-Pastrana waived the right to appeal
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the judgment and sentence if the sentence imposed was consistent
with the parties' recommendation.1
At the outset of the sentencing hearing in July 2015,
the district court commented on the portion of Lopez-Pastrana's
sentencing memorandum stating that he has a severe pulmonary
illness and a limited life expectancy. Defense counsel reaffirmed
the memorandum's assertion that Lopez-Pastrana, who was fifty-nine
at the time of sentencing, had a twenty percent chance of surviving
the next four years. The government responded that Lopez-
Pastrana's health had improved during the roughly four months that
he had been incarcerated. The prosecutor reported that the medical
director of the correctional facility where appellant was housed
had concluded that "his medical condition is not an end-stage
disease."
Noting the undisputed fact that Lopez-Pastrana faced a
sixty-month mandatory sentence on the firearms count, defense
counsel explained that he had brought up appellant's limited life
span for two reasons. First, counsel asked the court to recommend
that Lopez-Pastrana serve his time in a prison medical facility.
Second, counsel urged the court to support any recommendation made
1The "Waiver of Appeal" provision states, in full: "The
defendant knowingly and voluntarily waives the right to appeal the
judgment and sentence in this case, provided that the defendant is
sentenced in accordance with the terms and conditions set forth in
the Sentence Recommendation provisions of this Plea Agreement."
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by the Bureau of Prisons for compassionate release based on
appellant's health. See infra note 7 (discussing 18 U.S.C.
§ 3582(c)(1)(A)). The court acknowledged the requests, assuring
counsel he would order appellant's placement in a clinical
facility, and continued with the sentencing process.
For Count III, the drug offense, the court calculated
the Sentencing Guidelines punishment to be imprisonment from zero
to six months, a fine of $250 to $5,000, and a two-year term of
supervised release.2 For Count IV, the firearms offense, the court
observed that the Guidelines sentence is the statutory minimum --
sixty months -- to be followed by a supervised release period of
two to five years. After noting that it had considered the
sentencing factors prescribed by 18 U.S.C. § 3553 -- including,
"above all," Lopez-Pastrana's medical condition -- the court
announced, as to Count III, that it would "perform . . . a variance
as to him and . . . sentence him for the drug at zero months." On
Count IV, the court explained that it was imposing the statutory
minimum "due to his medical history." The court specified that,
as required by statute, "[b]oth sentences shall be served
consecutively to each other for a total of 60 months of
imprisonment."
2In fact, by statute, the term of supervised release for
Count III was "at least 2 years," assuming the sentence also
included a term of imprisonment. See 21 U.S.C. § 841(b)(1)(D).
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The court also imposed a two-year term of supervised
release on Count III and a five-year term of supervised release on
Count IV, to be served concurrently. It then announced the
conditions of release, including a twelve-month period of home
confinement that would be monitored with an electronic device.
The court declined to impose fines, but ordered the mandatory
monetary assessment of $100 on each count.
After pronouncing the sentence and terms of release, the
court noted that Lopez-Pastrana's waiver of his right to appeal
was triggered "because this Court has sentenced the defendant below
what he agreed -- not what he agreed, but below what he agreed."
The court concluded its pronouncements by directing that Lopez-
Pastrana "be placed in a clinical medical facility, a hospital-
type facility, due to his Chronic Obstructive Pulmonary Disease"
and instructing the Bureau of Prisons to ensure a medical
evaluation and "proper medication for the pulmonary obstructive
emphysema disease."
The government then moved to dismiss the other two counts
and -- "just to clarify the record" -- pointed out that the zero
months' sentence was not a variance, but fell at the lower end of
the applicable guidelines range. The court accepted the correction
and invited defense counsel to raise any objections to the
conditions of supervised release.
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At that point, a colloquy ensued between the court and
defense counsel concerning the twelve-month period of home
detention. Counsel objected to the substantial restraint that the
monitoring device would pose for his seriously ill client after
his release from prison, pointing out that appellant's activities
would in any event be limited for five years by the requirements
of supervised release. For its part, the court observed that it
had anticipated that Lopez-Pastrana might "applaud this condition"
because he would be able to obtain medical treatment at the
government's expense during the home detention.
The exchange between court and counsel included the
following:
COURT: [T]his is what I thought would be a
negotiation to going to zero [months]. . . .
So you are saying that most probably he
will not live this sentence. Fine.
. . . .
[T]his is the reason why the Court gave him no
sentence as to a drug conviction. Zero. But
I thought that if he lived, that he should be
in his house in home detention, as an
alternate sentence to the zero. There are
many defendants that would break my arm for
that.
DEFENSE COUNSEL: I understand, Your Honor.
COURT: You know, it's easier to serve it in
your house with all the monitoring medical
equipment that is going to be placed in there.
That's what I thought.
. . . .
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COURT: . . . I want to know your last position
relating to this, to this 12 months home
detention.
DEFENSE COUNSEL: Well, Your Honor, you're
going to have a person that is going to be
very ill. And --
COURT: This is a person that is very ill who
is going to be subsidized by the federal
government for one extra year. That's what it
is. If he's really very ill, . . . this is
[a] medical condition in your house paid by
the U.S. Government.
DEFENSE COUNSEL: I'd take it then, Your Honor.
COURT: All right. That's what I'm giving him.
Because that's what it is.
DEFENSE COUNSEL: We'll take it. We'll take
it.
COURT: All right. Who knows? Somebody else
picks this up and wants to challenge it.
But anyway, I've expressed on the record
what I have done. It is not [to] provide him
something -- a punishment because he's ill.
No. It is a quid pro quo, which the Court,
instead of giv[ing] him six months, is giving
him 12 months of home detention medical care.
DEFENSE COUNSEL: Fine.
COURT: So that the record is clear, somebody
else picks up this record and says, he can't
put him in jail because he's sick. No, I am
not. This is the quid pro quo for six months.
It's 12 months home detention to receive
medical treatment. All right?
DEFENSE COUNSEL: Fine.
COURT: All right.
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II.
Lopez-Pastrana challenges the twelve-month term of home
confinement as, in effect, an unjustified variance from the
applicable guidelines range of zero-to-six months' imprisonment.
As we explain in Section II.C, that condition of supervised release
was indeed imposed improperly, albeit for a different reason than
Lopez-Pastrana asserts. The government insists, however, that we
should reject appellant's challenge without considering its merits
because it was doubly waived before reaching this court: expressly
when counsel said at the sentencing hearing that "[w]e'll take"
the home confinement condition, and also by operation of the
appellate waiver provision in the plea agreement. As to the
latter, the government maintains that, because Lopez-Pastrana's
zero-months term of imprisonment is consistent with the plea
agreement's recommendation, the appellate waiver provision was
triggered. We thus turn first to the question of waiver.
A. Appellate Waiver
We begin with the plea agreement's appellate waiver
provision because, if it governs, we would be obliged to dismiss
Lopez-Pastrana's sentencing appeal. See, e.g., United States v.
Morales-Arroyo, 854 F.3d 118, 120 (1st Cir. 2017). In arguing
that the appeal may not proceed, the government relies on our
precedent holding that an agreement to surrender appellate review
of "the judgment and sentence" -- language included in Lopez-
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Pastrana's agreement -- encompasses challenges to conditions of
supervised release. See, e.g., United States v. Rojas, 780 F.3d
68, 69 (1st Cir. 2015); United States v. Santiago, 769 F.3d 1, 7
(1st Cir. 2014). In our cases, we repeatedly have held that such
a waiver extends to the conditions of release even where, as here,
the "plea agreement says nothing about them." Rojas, 780 F.3d at
69. Hence, because the conditions of supervised release ordinarily
play no role in assessing whether a defendant has waived the right
to appeal a sentence,3 the government asserts that we should look
only to the term of imprisonment to determine whether appellant's
sentence is consistent with the plea agreement's recommendation.
From that perspective, "the sentence" -- sixty months on the
firearms charge and no additional time on the drug charge --
conformed to the parties' agreed-upon proposal.
The government's position, however, fails to acknowledge
the material difference between home confinement and other types
of supervised-release conditions. Home confinement is treated as
a form of "custody" under federal law, see 18 U.S.C. § 3624(c)(2)
(allowing placement in home confinement as "[p]rerelease
3 Plea agreements commonly do not reference conditions of
supervised release, and we have therefore treated the conditions
as part of the "sentence" to which an appellate waiver applies to
avoid a construction of the appellate waiver that would "render
the entirety of the waiver ineffective upon the imposition of any
condition of supervised release." Rojas, 780 F.3d at 69.
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custody"), and, indeed, "absconding from home confinement" can
itself be a crime, United States v. Ko, 739 F.3d 558, 561 (10th
Cir. 2014) (construing provision governing escape from federal
custody, 18 U.S.C. § 751).4 Moreover, the Guidelines and federal
statutes allow home confinement only as a substitute for
incarceration. See 18 U.S.C. § 3583(e)(4) (stating that a court,
when including a term of supervised release after imprisonment,
may "order the defendant to remain at his place of residence during
nonworking hours," but such an order "may be imposed only as an
alternative to incarceration" (emphasis added)); id. § 3563(b)(19)
(stating that home confinement during nonworking hours may be
imposed as a condition of a sentence of probation "only as an
alternative to incarceration" (emphasis added)); U.S.S.G.
§ 5C1.1(e)(3) (stating, under the heading "Schedule of Substitute
Punishments": "[o]ne day of home detention for one day of
imprisonment"); U.S.S.G. § 5F1.2 ("Home detention may be imposed
as a condition of probation or supervised release, but only as a
substitute for imprisonment." (emphasis added)). Put simply, home
4 We note that Ko involved the defendant's transition from
imprisonment to release pursuant to 18 U.S.C. § 3624(c)(1), which
directs the Bureau of Prisons, "to the extent practicable, [to]
ensure that a prisoner serving a term of imprisonment spends a
portion of the final months of that term (not to exceed 12 months),
under conditions that will afford that prisoner a reasonable
opportunity to adjust to and prepare for the reentry of that
prisoner into the community." The statute authorizes home
confinement as one placement option. See 18 U.S.C. § 3624(c)(2).
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confinement is a "unique" condition of release, permissible only
as a stand-in for imprisonment. United States v. Ferguson, 369
F.3d 847, 851 (5th Cir. 2004) (per curiam).
"We interpret plea agreements under basic contract
principles and construe ambiguities in favor of allowing the appeal
to proceed." Morales-Arroyo, 854 F.3d at 120. In that light, we
have no difficulty concluding that the waiver provision in Lopez-
Pastrana's plea agreement may not be construed to bar his challenge
to a term of home confinement that is twice as long as the high
end of the applicable imprisonment range, where the parties had
recommended a sentence at the low end of the range. Particularly
given the day-for-a-day relationship between imprisonment and home
detention prescribed by the Guidelines, the two forms of custody
are most fairly afforded the same significance in applying Lopez-
Pastrana's appellate waiver. Indeed, in its brief, the government
effectively credits this approach by describing Lopez-Pastrana's
sentence as "an overall term of 72 months," consisting of twelve
months of home detention and sixty months' incarceration.
Two other factors also support our conclusion. First,
the sentencing colloquy reproduced above indicates that the
district court imposed the twelve-month period of home confinement
as a substitute for a six-month term of incarceration. Describing
the supervised-release condition as "a quid pro quo," the court
stated that "instead of giv[ing] him six months, [the court] is
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giving him 12 months of home detention medical care." The Sentence
Recommendation for Count III in the plea agreement, however, was
for "a sentence of imprisonment in the lower range of the
applicable guideline (if [Criminal History Category] I, 0
months)."5 (Emphasis in original.) Hence, the term for which the
court substituted home confinement was itself not "in accordance
with the terms and conditions set forth in the Sentence
Recommendation provisions of th[e] Plea Agreement." Second, even
discounting by fifty percent the impact of home confinement
compared to incarceration -- in effect, what the district court
said it was doing -- the result similarly exceeds the agreed-upon
recommendation. See generally United States v. Tourloukis, 558 F.
App'x 112, 114-15 & n.3 (2d Cir. 2014) (summary order) (declining
to decide "whether each month of home confinement should be seen
as equivalent to a month, or perhaps some lesser period, of
incarceration").
We therefore hold that Lopez-Pastrana's sentencing
appeal is not barred by the plea agreement's appellate waiver
provision.
5
Appellant's Criminal History Category ("CHC") turned out to
be II, but the same guideline range applies to CHC I and II.
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B. Waiver at the Sentencing Hearing
The government argues that defense counsel's twice-
stated comment that "[w]e'll take" the offered quid pro quo of
home confinement for incarceration, and counsel's response of
"Fine" when the court asked if "12 months home detention to receive
medical treatment" was acceptable, amounted to clear waivers of
objections to the sentence. We disagree.
In a portion of the colloquy preceding the excerpt
reproduced above, defense counsel attempted to persuade the
sentencing judge that, given his client's medical condition, a
term of home confinement to follow his sixty-month term of
incarceration was both unnecessary and unduly restrictive. That
exchange included the following:
DEFENSE COUNSEL: As the Court is aware, every
defendant that is . . . in jail to do their
sentence, prior to their exiting they are
placed in halfway houses and then they're
monitored to see whether they should continue
under those conditions that makes it viable.
In this particular case, Your Honor has
ordered that once he even finishes that
process that he continue with some type of
monitoring device. If --
COURT: Well, the problem was that since the
Court gave this defendant a zero sentence, and
he is going to require medical aid, we thought
that maybe he would applaud this condition.
DEFENSE COUNSEL: Well, Your Honor, remember
that he will continue under supervised release
for five years. So . . . what I am objecting
[to] is that he be continued restrained by
monitoring devices.
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COURT: But this is restrained at his house.
Assume that the Court gave him zero, but
at the same time the Court gave him home
detention, would you object to that?
DEFENSE COUNSEL: If, Your Honor -- and please,
I'm not trying to be funny, but is the Court
considering . . . changing the five years for
that?
COURT: Well, no.
DEFENSE COUNSEL: That's what I'm saying.
That's what I'm saying, Your Honor, it's in
addition to.
A short time later, after noting that "obviously [appellant is]
going to do five years on the gun count," counsel explained that
his "only concern" was that "if he's ill now, it's likely that he
will be" upon his release. When the court insisted that home
confinement would be advantageous "if he's really very ill" because
he would receive government-paid medical care, counsel stated,
"I'd take it then, Your Honor."
In context, we do not read counsel's ultimate
acquiescence to home confinement as a willing relinquishment of
objections to that condition. Rather, faced with the court's
ultimatum that appellant's only other choice was an additional six
months in prison, counsel accepted as "Fine" what he evidently
viewed as the better of two undesirable options. Particularly
given the improper choice offered by the court -- as we discuss
below -- we decline to reject the home-confinement challenge as
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waived by means of the colloquy at sentencing. We think it fairer
to view the claim as imperfectly preserved and, hence, subject to
plain error review. See, e.g., United States v. Garay-Sierra, 885
F.3d 7, 12 (1st Cir. 2018).
C. The Propriety of the Home Confinement Condition
Having reached the merits, we reiterate that Lopez-
Pastrana received sixty months' imprisonment on Count IV and
concurrent supervised release terms on Counts III (two years) and
IV (five years). This sentence included a clear error. As the
government acknowledges, the supervised release term for Count III
is improper because the court imposed no incarceration on that
count, and supervised release must follow a prior term of
imprisonment. See 18 U.S.C. § 3583(a) (stating that the court,
"in imposing a sentence to a term of imprisonment for a felony or
a misdemeanor, may include as a part of the sentence a requirement
that the defendant be placed on a term of supervised release after
imprisonment" (emphasis added)); see also United States v. Pugh,
515 F.3d 1179, 1201 (11th Cir. 2008) ("[B]ecause the district court
did not impose any custodial sentence . . . by law it could not
impose any term of supervised release."). Necessarily, then, the
home-confinement condition is invalid if the court applied it to
the erroneous term of supervised release on Count III.
At the sentencing hearing, after pronouncing the terms
of imprisonment and supervised release, the district court recited
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the conditions of release without differentiating between the two
counts. The court's written judgment likewise failed to expressly
link the twelve months of home confinement to a particular count.
However, the court's statements throughout the hearing depicted
the year of home confinement as one of two alternative punishments
for the drug crime. Indeed, the government points out that "the
record makes clear that the district court imposed this condition
as the 'quid pro quo' for a zero-month sentence on Count 3."
Within this context, we think the only fair reading of the
sentencing is that the district court improperly tethered the home-
confinement condition to the impermissible term of supervised
release on Count III.
The government argues that even if the condition was
wrongly linked to Count III, Lopez-Pastrana neither deserves nor
needs a remedy. Any such error would be harmless, the government
maintains, because the district court had authority to impose home
detention as a substitute for imprisonment on Count III pursuant
to 18 U.S.C. § 3563(b)(19). That assertion is incorrect. Section
3563(b)(19) specifies home detention as one of the discretionary
conditions that may be imposed as part of a sentence of probation.
However, Lopez-Pastrana's Presentence Investigation Report states
that he was ineligible for probation on Count III because he was
sentenced at the same time to a term of imprisonment for Count IV.
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See 18 U.S.C. § 3561(a)(3).6 Although a separate statutory
provision permits courts to impose most of the conditions listed
in § 3563(b) in the context of supervised release, see 18 U.S.C.
§ 3583(d), the problem here is that supervised release itself was
impermissible based on the zero months' imprisonment imposed on
Count III.
The government's other harmless-error rationale has a
stronger foundation. The district court directed that the improper
term of supervised release for Count III run concurrently with the
authorized term of supervised release for Count IV. Hence, the
court could have accomplished its apparent objective by ordering
one year of home detention as a condition of supervised release on
the firearms count. In addition, apart from harmless error, the
government points out that Lopez-Pastrana has not made the correct
claim of error on appeal -- i.e., that supervised release on Count
6Federal law permits probation or a fine as alternatives to
imprisonment for persons found guilty of an offense, see 18 U.S.C.
§ 3551(b), although the "choice among [the] three alternative
punishments" may be limited by specific provisions, United States
v. Martin, 363 F.3d 25, 35 (1st Cir. 2004). For example, a
defendant found guilty of a Class A felony is not eligible for
probation, see 18 U.S.C. § 3561(a)(1), and probation also is
unavailable if "the defendant is sentenced at the same time to a
term of imprisonment for the same or a different offense that is
not a petty offense," id. § 3561(a)(3). See also U.S.S.G.
§ 5B1.1(b) (stating that a sentence of probation is not authorized
if, inter alia, "the defendant is sentenced at the same time to a
sentence of imprisonment for the same or a different offense, 18
U.S.C. § 3561(a)(3)").
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III was impermissible -- and instead has complained only that the
district court did not adequately explain its "departure or
variance from the otherwise applicable guideline imprisonment
range."
There is some force to the government's position that no
remedy is needed for the district court's error. Nonetheless,
despite its view that we should affirm Lopez-Pastrana's sentence
as is, the government stated in its brief and at oral argument
that it did not oppose a limited remand directing the district
court to reconsider the home detention condition and to ensure
that, if retained, the condition is imposed properly. We believe
a remand is the best course in the circumstances of this case.
Not only did the district court clearly err by imposing supervised
release on Count III, but the court also began the sentencing
hearing with the incorrect view that the zero months' sentence was
a beneficial variance for the defendant and "below what he agreed."
As described in Section I, the government subsequently clarified
that zero months was within the guidelines range. Yet, the court's
initial misunderstanding may have affected the quid pro quo it
offered to Lopez-Pastrana and its decision to impose home
detention. That is, the option of home confinement for a term
twice as long as the high end of the guidelines range may have
been influenced by the court's incorrect belief that the zero-
months' sentence was a generous variance from the range.
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We thus conclude that the most equitable approach is the
limited remand accepted by the government so that the district
court may correct the conceded error in imposing supervised release
on Count III. See 28 U.S.C. § 2106 (stating the authority of
appellate courts to order a remand and "require such further
proceedings to be had as may be just under the circumstances").
Accordingly, we need not proceed to the third and fourth steps of
the plain error inquiry.
Although we express no view as to the proper sentence to
be imposed on remand, we offer two observations. First, as defense
counsel acknowledged at oral argument, the district court's
reconsideration of the home detention condition could result in a
term of imprisonment on Count III. However, the defendant
represents that his health remains problematic, and the court may
properly consider any change in his condition that occurred during
the nearly three years since his original sentencing. See Pepper
v. United States, 562 U.S. 476, 481 (2011) (holding that "a
district court at resentencing may consider evidence of the
defendant's postsentencing rehabilitation"); id. at 491 (noting
generally that the same types of information about a defendant are
relevant at both the "initial sentencing and a subsequent
resentencing after a prior sentence has been set aside on appeal");
United States v. Bryson, 229 F.3d 425, 426 (2d Cir. 2000) (per
curiam) (noting that "a court's duty is always to sentence the
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defendant as he stands before the court on the day of sentencing"
(quoted in Pepper, 562 U.S. at 492)). Moreover, the government
indicated at oral argument that, if we remanded for resentencing,
it did not plan to seek imprisonment time for Count III.
Second, the district court will have flexibility in
reconsidering the erroneous term of supervised release and home
detention. The district court could limit the resentencing to
Count III, now understanding that any period of supervised release
on that count, and any condition of supervised release -- including
home detention -- must be linked to a period of imprisonment.
However, the government also has emphasized the availability of
home confinement as a condition of supervised release on Count IV.
We see no reason why the district court should be foreclosed from
reinstating home detention in that way -- i.e., by retaining the
zero months' sentence on Count III, eliminating the improper term
of supervised release on that count, and imposing home confinement
as part of the sentence on Count IV. Although the government may
not have anticipated the effect of that approach on the scope of
the remand, correcting the error in that way would necessarily
broaden the resentencing to both counts and require a determination
that home confinement is an appropriate "alternative to
incarceration" on Count IV. 18 U.S.C. § 3583(e)(4).7
7
Relatedly, we note that the proceedings on remand may be
affected by the outcome of appellant's request, in December 2015,
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III.
We thus vacate the sentence imposed on Count III and
remand this case to the district court for resentencing consistent
with the discussion above. The court also may revisit the sentence
on Count IV for the purpose we have described.8
So ordered.
that the Bureau of Prisons ("BOP") file a motion requesting his
compassionate release. See 18 U.S.C. § 3582(c)(1)(A)(i) (allowing
a court to reduce a term of imprisonment, upon motion of the BOP
director, based on a finding that "extraordinary and compelling
reasons warrant such a reduction"); 28 C.F.R. § 571.60-63(specifying procedures for initiating a request under
§ 3582(c)(1)(A)). At oral argument in March 2018, Lopez-
Pastrana's counsel reported that the request to the BOP remained
pending. The remand proceedings ordered herein could become
superfluous if the BOP submits, and the district court grants, a
motion under § 3582(c)(1)(A).
8 In a pro se filing, Lopez-Pastrana raises nineteen largely
undeveloped additional claims of error affecting both his
conviction and sentence. He challenges, inter alia, the validity
of the search of his home that led to his arrest and the legality
of the drug charges brought against him. He also asserts multiple
instances of ineffective assistance of counsel. Most of these
claims are either waived or premature. Having entered an
unconditional guilty plea, appellant may not seek to undo his
conviction based on errors that occurred before his plea. See
Tollett v. Henderson, 411 U.S. 258, 267 (1973); United States v.
Castro-Vazquez, 802 F.3d 28, 32-33 (1st Cir. 2015). Nor may we
entertain fact-bound claims of attorney ineffectiveness on direct
appeal. See, e.g., Castro-Vazquez, 802 F.3d at 33. The remainder
of the pro se claims are either plainly without merit or
insufficiently developed to permit meaningful review.
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