United States Court of Appeals

For the First Circuit

No. 02-1155

UNITED STATES OF AMERICA,

Appellee,

v.

ELVY MARTINEZ-VARGAS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

 Selya, Circuit Judge,

Coffin and Cyr, Senior Circuit Judges.

Eileen F. Shapiro, by appointment of the court, on brief for

appellant.

Margaret E. Curran, United States Attorney, Donald C. Lockhart

and Mary E. Rogers, Assistant United States Attorneys, on brief for

appellee.

March 4, 2003
1"José Correa" is an alias assumed by Domingo Martinez. For

simplicity's sake, we shall continue to refer to him by his

pseudonym.

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SELYA, Circuit Judge. Defendant-appellant Elvy MartinezVargas pleaded guilty both to conspiring to possess with intent to

distribute five kilograms or more of cocaine and to a related

attempt count. See 21 U.S.C. §§ 841(a)(1), 846. He now appeals

his sentence, arguing that the district court should have credited

him for a mitigating role in the offense of conviction and that his

sentence was tainted by ineffective assistance of counsel.

Concluding, as we do, that the first claim is unavailing and the

second unripe, we affirm the appellant's sentence.

We draw the relevant facts from the change-of-plea

colloquy, the presentence investigation report (PSI Report), the

disposition hearing, and the documents of record. See United

States v. Dietz, 950 F.2d 50, 51 (1st Cir. 1992).

The events giving rise to the appellant's arrest had

their genesis in a call placed by a cooperating witness,

functioning under the auspices of the Federal Bureau of

Investigation, to the appellant's brother, José Correa.1 The

caller offered to bring five kilograms of cocaine from New York to

Rhode Island. Correa agreed to purchase the contraband, and the

parties arranged to consummate the transaction on July 16, 2001.

At the appointed time and place, an undercover officer

posed as a drug courier. Correa and the appellant approached the
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officer's vehicle to take delivery of the drugs, and the trap

snapped shut. A search of their minivan turned up $15,400 in cash.

A subsequent search of Correa's residence netted an additional

$16,380 in cash.

On August 8, 2001, a federal grand jury indicted Correa

and the appellant. Both men initially proclaimed their innocence.

On November 2, 2001, Correa changed his plea. As he is not a party

to this appeal, we make no further reference to the proceedings

against him.

The district court had scheduled the case for trial on

November 6, 2001. Rather than stand trial, the appellant decided

to plead guilty. The court accepted his changed plea, continued

the matter for sentencing, and commissioned the preparation of the

PSI Report. The court specifically advised the appellant that,

when the PSI Report was ready, he would have a right to review it

with counsel and to object to it. The court emphasized that any

objections not lodged within 14 days after the PSI Report was made

available would not be considered.

The probation department completed the PSI Report on

December 19, 2001. It suggested that the court employ a base

offense level of 32, see USSG §2D1.1(c)(4), and deduct two levels

for acceptance of responsibility under USSG §3E1.1(a). Because the

appellant apparently qualified for an additional two-level decrease

under the so-called "safety valve" provision, see 18 U.S.C. §
2We explained in Ortiz-Santiago that "Congress enacted the

safety valve provision, 18 U.S.C. § 3553(f), in order to mitigate

the harsh effect of mandatory minimum sentences on certain first

offenders who played supporting roles in drug-trafficking schemes."

211 F.3d at 150. The Sentencing Commission has incorporated the

statutory text verbatim into the sentencing guidelines. See USSG

§5C1.2; see also USSG §2D1.1(b)(6) (providing that if a drugoffender defendant meets the criteria set forth in section 5C1.2,

the sentencing court shall decrease his offense level by two

levels).

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3553(f); see also United States v. Marquez, 280 F.3d 19, 21-22 (1st

Cir. 2002); United States v. Ortiz-Santiago, 211 F.3d 146, 150-51

(1st Cir. 2000),2 the PSI Report recommended an adjusted offense

level of 28. That offense level, together with a criminal history

category of I — the appellant had no prior criminal record —

yielded a guideline sentencing range of 78 to 97 months.

In response to the PSI Report, the appellant proffered

only a single objection. This objection focused on the drug

quantity calculation used to determine his base offense level. He

did not object either to (1) the use of a two-level adjustment,

rather than a three-level adjustment, for acceptance of
3A defendant who accepts responsibility for the offense of

conviction receives a basic two-level decrease in his offense

level. See USSG §3E1.1(a); see also United States v. Royer, 895

F.2d 28, 29 (1st Cir. 1990). Under certain circumstances, however,

a defendant who qualifies for a two-level decrease under section

3E1.1(a) may receive an additional one-level decrease if he "timely

notif[ies] authorities of his intention to enter a plea of guilty,

thereby permitting the government to avoid preparing for trial and

permitting the court to allocate its resources efficiently." USSG

§ 3E1.1(b)(2). Here, the sentencing court gave the appellant the

basic two-level reduction, but not the extra level.

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responsibility,3 or (2) the absence of a role-in-the-offense

adjustment for minor participation.

The district court convened the disposition hearing on

January 25, 2002. The court resolved the question of drug quantity

against the appellant, and that question is not pursued on appeal.

Defense counsel then raised, for the first time, the possibility of

a role-in-the-offense adjustment under USSG §3B1.2(b) (which

provides that "[i]f the defendant was a minor participant in any

criminal activity," the sentencing court should "decrease [his

offense level] by 2 levels"). In belatedly broaching this subject,

the lawyer conceded that he had not objected within the stipulated

time frame and ascribed his failure to "writer's block." The court

responded: "If it wasn't raised . . . under the rule it is waived.

The Court made that very clear at the time the plea was accepted."

The court then added:

[I]t doesn't appear to me that there is a

great deal of basis for [a role-in-the-offense

reduction] here. According to the presentence

report, Mr. Martinez was with the co-Defendant

and both went to meet the agent and went back
4To be sure, the appellant, in objecting to the drug quantity

calculation, did state that he "was only there as a helper to the

main player." But the appellant mentioned this datum only in

connection with an unsuccessful effort to explain why he did not

know the exact amount of drugs to be purchased. He never referred

to the role-in-the-offense guideline, nor did he develop his

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to the apartment and discussed purchasing 5

kilograms. Mr. Martinez was present at the

time.

I recognize what he said in his

statement of acceptance [of responsibility]

that he was just along for the ride, so to

speak but I am not sure if he is prepared to

testify to that or not. In any event, it is

too late to raise that objection.

Following the imposition of a 78-month incarcerative

sentence, Martinez-Vargas filed a notice of appeal. In it, he

makes two points. First, he asseverates that the sentencing court

erred in denying him a role-in-the-offense adjustment under USSG

§3B1.2(b). Second, he maintains that ineffective assistance of

counsel elongated his sentence because it deprived him not only of

the aforementioned role-in-the-offense adjustment but also of a

plenary three-level reduction for acceptance of responsibility

under USSG §3E1.1. We deal with these contentions sequentially,

using throughout the November 2001 edition of the sentencing

guidelines.

We need not tarry. Although the appellant criticizes the

district court for failing to grant a two-level downward adjustment

for his ostensibly minor role in the offense, he did not interpose

a timely objection to the PSI Report on this basis.4
"helper" argument in any meaningful way.

5Fed. R. Crim. P. 32(b)(6) was recodified as Fed. R. Crim. P.

32(f) by an amendment effective December 1, 2002. The substance is

unchanged. For simplicity's sake, we use the designations that

were in effect on the date of the appellant's sentencing.

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In the circumstances of this case, the absence of a

timely objection might well constitute a waiver. After all, the

Criminal Rules provide that the probation department shall prepare

the PSI Report and furnish it to the defendant, the defendant's

counsel, and the prosecutor. See Fed. R. Crim. P. 32(b)(6)(A).

Then, "within 14 days after receiving the presentence report," the

parties are to "communicate in writing to the probation officer,

and to each other," all the objections that they may have to the

"sentencing classifications" and other matters "contained in or

omitted from the presentence report." Fed. R. Crim. P.

32(b)(6)(B). Not later than seven days before the disposition

hearing, the probation officer must give the district court and the

parties a revised PSI Report, including an addendum setting forth

any unresolved sentencing objections. Fed. R. Crim. P.

32(b)(6)(C). Apart from any preserved objections, the sentencing

court may "accept the presentence report as its findings of fact"

without further inquiry or elaboration. Fed. R. Crim. P.

32(b)(6)(D).5

In the District of Rhode Island, these provisions are

reinforced by a local rule, which provides that:
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Not less than 35 days prior to the date set

for sentencing, the probation officer shall

disclose the presentence investigation report

to the defendant and to counsel for the

defendant and the government. Within 14 days

thereafter, counsel shall communicate to the

probation officer any objections they may have

as to any material information, sentencing

classifications, sentencing guideline ranges,

and policy statements contained in or omitted

from the report. Such communication may be

oral or written, but the probation officer may

require that any oral objection be promptly

confirmed in writing.

D.R.I. R. 40.2(a). Further provisions in the local rules mirror

the framework of the Federal Rules of Criminal Procedure. See,

e.g., D.R.I. R. 40.2(b)-(d).

The time limits embedded in these rules serve a threefold

purpose: they promote focused and informed resolution of disputed

sentencing issues, fairness for both the government and the

defendant, and efficiency in judicial administration. Cf. United

States v. López-López, 295 F.3d 165, 169 (1st Cir. 2002)

(explaining that "time limits are no mere technicalities; they are

integral to the fair and orderly process of imposing sentence").

Thus, a party who decides to forgo a timely objection is in a poor

position to complain when the sentencing court holds him to the

easily foreseeable consequences of that decision.

Moreover, the district court was especially forthcoming

in this instance. It called the applicable time parameters to the

appellant's attention at the change-of-plea hearing, warned him no

fewer than four times of the 14-day deadline, and spelled out the
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consequences attendant to noncompliance. The appellant was,

therefore, on both actual and constructive notice that he must set

forth his specific objections to the PSI Report within the allotted

time or else forever hold his peace.

In the final analysis, however, we need not go so far as

to declare what happened here a waiver. Even were we to assume,

favorably to the appellant, that this lapse constituted a

forfeiture, rather than a waiver, that characterization would not

lead to a different result. On appeal, forfeited issues are

reviewed for plain error. United States v. Olano, 507 U.S. 725,

733-34 (1993); United States v. Rodriguez, 311 F.3d 435, 437 (1st

Cir. 2002). Under the plain error standard, an appellant must

demonstrate: "(1) that an error occurred (2) which was clear or

obvious and which not only (3) affected [his] substantial rights,

but also (4) seriously impaired the fairness, integrity, or public

reputation of judicial proceedings." United States v. Duarte, 246

F.3d 56, 60 (1st Cir. 2001). The appellant cannot clear this

hurdle.

Role-in-the-offense determinations are almost always

factbound. With respect to downward role-in-the-offense

adjustments, the defendant bears the burden of proof. United

States v. Ocasio, 914 F.2d 330, 332-33 (1st Cir. 1990). Appellate

review is highly deferential: the sentencing court's determination

of a defendant's role is reviewed only for clear error. Id. at
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333. "Thus, absent a mistake of law, battles over a defendant's

status . . . will almost always be won or lost in the district

court." United States v. Graciani, 61 F.3d 70, 75 (1st Cir. 1995).

These principles are decisive here. A minor participant

is one "who is less culpable than most other participants, but

whose role could not be described as minimal." USSG §3B1.2, cmt.

(n.5). To obtain a reduction for minor participant status, a

defendant must prove that he is both less culpable than most other

persons involved in the offense of conviction and less culpable

than most other persons convicted of comparable crimes. See OrtizSantiago, 211 F.3d at 149; Ocasio, 914 F.2d at 333; see also USSG

§3B1.2, cmt. (n.5). The test is even more demanding on plain error

review; the defendant must show, in effect, that the status for

which he argues is "the only one rationally supported by the record

below." United States v. Olivier-Diaz, 13 F.3d 1, 5 (1st Cir.

1993). The appellant's claim cannot pass through this screen.

There is no credible evidence in the record to suggest

that the appellant was less culpable than the mine-run of felons

involved in similar crimes. To the contrary, he admitted during

the change-of-plea colloquy that he conspired with Correa to buy

five kilograms of cocaine; that he intended to distribute the

cocaine after it was acquired; and that he and Correa went together

to the scene of the planned transaction. His self-serving

statement that he was only to receive $300 for his efforts is not
6The appellant argues that, in this case, the sentencing court

must have found good cause because it addressed the merits of the

objection. This is whistling past the graveyard. The court, in

what appears to have been an effort to assuage the lawyer's concern

over not having raised the point in a timely fashion, merely noted

the obvious weakness of the "minor participant" argument. To read

the court's comments as the functional equivalent of a finding of

good cause elevates hope over reason.

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supported by anything in the record and conflicts with his

admissions at the change-of-plea hearing. Given this mise-enscène, the appellant's status argument is not the "only one

rationally supported by the record below." Id. Hence, the

sentencing court's failure, sua sponte, to grant the appellant a

role-in-the-offense reduction was not plainly erroneous.

In an effort to avoid the rigors of "plain error" review,

the appellant points out that the time parameters applicable to

objections are not inflexible. The sentencing court "[f]or good

cause shown . . . may allow a new objection to be raised at any

time before imposing sentence." Fed. R. Crim. P. 32(b)(6)(D).6

But this escape hatch is not available to the appellant. A claim

of "writer's block" hardly constitutes good cause. See generally

Pontarelli v. Stone, 930 F.2d 104, 110-11 (1st Cir. 1991)

(distinguishing "good cause" from "excusable neglect" in an

analogous context).

This leaves the appellant's ineffective assistance of

counsel claim. In it, he surmises that, but for his trial

attorney's inept performance, he would have received both a role-
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in-the-offense reduction under USSG §3B1.2 and a full three-level

discount for acceptance of responsibility under USSG §3E1.1(a) and

(b)(2), thus ensuring a lighter sentence. In his view, this

circumstance warrants vacation of his sentence and a remand for a

new sentencing hearing. See Strickland v. Washington, 466 U.S.

668, 694 (1984) (concluding that ineffective assistance of counsel

occurs when "there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would

have been different").

We decline to entertain this plaint. The law is firmly

settled in this circuit that, as a general rule, fact-specific

claims of ineffective assistance of counsel, not raised below,

cannot be aired for the first time on direct appeal. See United

States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993) (collecting

cases); United States v. Costa, 890 F.2d 480, 482-83 (1st Cir.

1989); United States v. Hoyos-Medina, 878 F.2d 21, 22 (1st Cir.

1989).

Like most rules, this rule admits of certain exceptions.

See, e.g., United States v. Natanel, 938 F.2d 302, 309 (1st Cir.

1991). But those exceptions usually involve situations 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." Id. Here, however, the record is

painfully thin, and further development of the facts is essential
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to a reasoned consideration of the appellant's contentions. In

similar circumstances, we have declined to entertain ineffective

assistance claims on direct appeal. See, e.g., United States v.

Nelson-Rodriguez, ___ F.3d, ___, ___ (1st Cir. 2003) [No. 00-1402,

slip op. at 64]; United States v. Hunnewell, 891 F.2d 955, 956 (1st

Cir. 1989). Adhering to that salutary practice here, we reject the

appellant's ineffective assistance of counsel claim, without

prejudice to his right, if he so elects, to assert that claim in

the district court by means of an application for collateral

relief. See 28 U.S.C. § 2255.

Affirmed.