[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals

For the First Circuit

No. 00-1712

UNITED STATES,

Appellee,

v.

ANGEL O. IRIZARRY-CENTENO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Héctor M. Laffitte, U.S. District Judge]

Before

Selya, Circuit Judge,

 Campbell, Senior Circuit Judge,

and Lynch, Circuit Judge.

Luis Rafael Rivera on brief for appellant.

Guillermo Gil, United States Attorney, Jorge E. VegaPacheco, Assistant United States Attorney, and Nelson PerezSosa, Assistant United States Attorney, on brief for appellee.

January 24, 2002
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Per Curiam. Angel O. Irizarry-Centeno challenges his

conviction for conspiracy to possess with the intent to

distribute heroin and cocaine in violation of 21 U.S.C. §§ 841

and 846. Specifically, Irizarry-Centeno claims that he received

ineffective assistance of counsel because his attorneys failed

to advise him that he faced a mandatory life sentence if he

rejected the government’s plea offer and was convicted after a

jury trial. According to Irizarry-Centeno, if he had been aware

of the potential for life imprisonment he would have accepted

the government’s plea offer. In a supplemental brief,

Irizarry-Centeno also contends that he was sentenced in

violation of Apprendi v. New Jersey, 530 U.S. 466 (2000) and

further that his sentence is defective because the judge failed

to adhere to the strict procedural requirements of 21 U.S.C. §

851(b).

To the extent that Irizarry-Centeno’s claim that he was

sentenced in violation of Apprendi rests on the fact that his

two prior felony convictions were neither charged in the

indictment nor presented to the jury, it is without merit.

Apprendi applies only to facts other than prior convictions that

are used to increase a sentence beyond the statutory maximum

United States v. Gomez-Estrada, 273 F.3d 400, 402 (1st Cir.
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2001). To the extent that his Apprendi claim is founded on the

fact that the drug quantity used to enhance his sentence was not

presented to the jury and proved beyond a reasonable doubt, we

conclude that there was no plain error, given the evidence that

defendant was part of a multi-kilo drug operation and further

that he never contested the quantity of drugs. See generally

United States v. Duarte, 246 F.3d 56, 64 (1st Cir. 2001). Nor is

there any evidence in the record to support Irizarry-Centeno’s

claim that the district judge failed to follow the procedural

requirements set forth in § 851(b).

As to his ineffective assistance of counsel claim, this

circuit has held “with a regularity bordering on monotonous that

fact-specific claims of ineffective assistance of counsel cannot

make their debut on direct appeal 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). Although we have occasionally reviewed ineffective

assistance claims on direct appeal, “we travel this route only

when the critical facts are not in dispute and the record is

sufficiently developed to allow reasoned consideration of the

claim.” Id. 

Notwithstanding Irizarry-Centeno’s assertions to the

contrary, the evidentiary record before us is far from
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sufficiently developed. Other than Irizarry-Centeno’s bare

allegations during the sentencing hearing that he had not been

advised of the information filed by the government nor the

potential impact of the information on his sentence, the record

is devoid of probative evidence bearing on his allegations.

Consequently, any consideration of defendant’s ineffective

assistance claim by this court would be premature. Accordingly,

we reject the claim, without prejudice to Irizarry-Centeno’s

right to raise it in a collateral proceeding. See 28 U.S.C.

§2255. 

Based on the foregoing, Irizarry-Centeno’s conviction and

sentence are affirmed.