[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]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
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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 “factspecific 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 (1st 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.