[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals

For the First Circuit

No. 01-2606

UNITED STATES,

Appellee,

v.

OMAR DEL ROSARIO-PUENTE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

Before

 Boudin, Chief Judge,

Torruella and Lipez, Circuit Judges.

Raymond L. Sanchez on brief for appellant.

H.S. Garcia, United States Attorney, Jorge E. Vega-Pacheco,

Assistant United States Attorney, and Nelson Perez-Sosa, Assistant

United States Attorney, on brief for appellee.

August 19, 2002
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Per Curiam. Appellant pleaded guilty to possession

with intent to distribute five kilograms or more of cocaine, in

violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 18 U.S.C

§ 2, and was sentenced to 46 months' imprisonment -- less than

half the statutory mandatory minimum. See 21 U.S.C. §

841(b)(1)(A). Despite appellant's statements at the change of

plea hearing that he was satisfied with his legal

representation, he now claims that his guilty plea was

involuntary because his attorney misadvised him to plead guilty

based on evidence that should have been suppressed and wrongly

decided to withdraw a motion to suppress that evidence. 

A guilty plea may be considered unknowingly and

involuntarily entered if, in connection with the decision to

plead guilty, the defendant does not receive reasonably

effective assistance of counsel. See Hill v. Lockhart, 474

U.S. 52, 56-57 (1985). Although ineffective assistance of

counsel claims are not normally appropriate for review on

direct appeal, particularly where, as here, the claim has not

been raised before the trial court, United States v. Mala, 7

F.3d 1058, 1063 (1st Cir. 1993), we agree with the parties'

assertion that the circumstances fall within the exception for

cases in which "'the critical facts are not genuinely in

dispute and the record is sufficiently developed to allow a

reasoned consideration of an ineffective assistance claim.'"

United States v. Soldevila-Lopez, 17 F.3d 480, 485 (1st Cir.
-3-

1994) (quoting United States v. Natanel, 938 F.2d 302, 309 (1st

Cir. 1991)). 

The familiar two-part test announced in Strickland v.

Washington, 466 U.S. 668 (1984), must be satisfied to

invalidate a guilty plea based on ineffective assistance of

counsel. Hill, 474 U.S. 57. Therefore, to prevail, appellant

must overcome the presumption that, under the circumstances,

trial counsel's advice to withdraw the motion to suppress and

plead guilty might be considered sound strategy. Id. at 689.

In addition, appellant must prove that counsel's conduct was

prejudicial -- i.e., that there is a reasonable probability

that, but for counsel's alleged errors, appellant would not

have pleaded guilty and would have insisted on going to trial.

Hill, 474 U.S. at 59. Accordingly, determination of the

ineffective assistance issue turns on the likelihood of success

of the withdrawn motion to suppress. After carefully reviewing

the record as well as the parties' submissions on appeal, we

conclude that appellant has failed to show that the motion to

suppress was likely to succeed. Moreover, in light of the

significantly reduced sentence appellant received, no doubt due

in part to his agreement to withdraw the motion to suppress and

plead guilty, trial counsel's advice seems eminently

reasonable. 

Appellant having failed to satisfy the Strickland

test, we reject his challenge to the validity of the guilty

plea. The judgment is affirmed. See Loc. R. 27(c).