Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 08-1421

UNITED STATES OF AMERICA,

Appellee,

v.

ADALBERTO CARRASQUILLO-CARMONA, A/K/A TITÓN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before

 Boudin, Selya and Stahl, Circuit Judges.

José R. Olmo-Rodríguez on brief for appellant.

Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson

Pérez-Sosa, Assistant United States Attorney (Chief, Appellate

Division), and Luke Cass, Assistant United States Attorney, on

brief for appellee.

July 31, 2009
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SELYA, Circuit Judge. A jury found defendant-appellant

Adalberto Carrasquillo-Carmona guilty of carjacking a motor vehicle

with intent to cause death or serious bodily injury. See 18 U.S.C.

§ 2119(2). The district court imposed a 108-month incarcerative

sentence. This timely appeal followed. 

We start with the relevant factual and procedural

background. The government proved at trial that on November 13,

2005, the appellant had a chance encounter with a family friend and

distant relative, Justo Pérez García, at a car wash. The friend,

familiarly known as "Poto," gave the appellant a ride home after

the pair made a long, wet stop at a bar. Near the end of the trip,

the appellant attacked Poto with a lug-wrench, stole Poto's

vehicle, and drove away. The caper ended when the appellant

crashed into a church and abandoned the wrecked car. 

Poto subsequently filed a complaint with the Federal

Bureau of Investigation. In short order, the appellant was

arrested; waived his Miranda rights, see Miranda v. Arizona, 384

U.S. 436, 444 (1966); and made a number of incriminating

statements. Eventually, he wrote and signed a full confession.

In due course, a federal grand jury indicted the

appellant for carjacking. After his counsel moved unsuccessfully

to suppress the confession and other inculpatory statements on

grounds not relevant here, the appellant went to trial. The jury

found him guilty. The district court sentenced him at the bottom
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of the applicable guideline sentencing range (GSR): 108 months in

prison.

The appellant's principal claim of error is premised on

the allegedly ineffective assistance provided by his trial counsel.

This claim focuses on counsel's failure to offer into evidence at

the suppression hearing a report of a neuropsychological

evaluation. The report, prepared at the behest of trial counsel,

discloses that the appellant has an intelligence quotient (IQ) of

62 — an IQ in the mentally retarded range — and that he suffers

from "mild to moderate" cognitive impairments. 

Before us, the appellant points out that voluntariness

was a sine qua non to the admissibility of his confession and other

statements at trial. Building on this foundation, he argues that

trial counsel's failure to introduce this report constituted

ineffective assistance because that report reflected adversely on

the voluntariness of his confession and other statements. 

The standard for gauging claims of ineffective assistance

of counsel is familiar. See, e.g., Strickland v. Washington, 466

U.S. 668, 686-87 (1984); Ouber v. Guarino, 293 F.3d 19, 25 (1st

Cir. 2002). The proponent must show both sub-par performance on

counsel's part and substantial prejudice attributable thereto.

Strickland, 466 U.S. at 687; Ouber, 293 F.3d at 25. 

Here, however, we do not reach the merits of the

appellant's claim. "We have held with a regularity bordering on
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the monotonous that fact-specific claims of ineffective 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) (collecting cases). This prudential principle rests on

the truism that "the trial judge, by reason of his familiarity with

the case, is usually in the best position to assess both the

quality of the legal representation afforded to the defendant in

the district court and the impact of any shortfall in that

representation." Id.

The case at hand is a poster child for the application of

this prudential principle. The record, as presently constituted,

leaves too much to the imagination. 

For one thing, the record does not offer any real

guidance as to the crucial question of why the appellant's trial

counsel decided not to present either the report or its author at

the suppression hearing. At this point, it is impossible to tell,

except through speculation and surmise, whether counsel's decision

was a strategic choice or an oversight. 

For another thing, the record is equally undeveloped as

to prejudice. Assuming, for argument's sake, that the failure to

raise the question of mental capacity at the suppression hearing

betokened deficient performance, we cannot tell, short of

conjecture, whether that failure prejudiced the appellant's
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substantive rights. After all, while the appellant is correct that

voluntariness is a sine qua non to the admissibility of a

confession, Colorado v. Connelly, 479 U.S. 157, 167 (1986), an

assessment of voluntariness requires an appraisal of the totality

of the circumstances. See United States v. Marshall, 348 F.3d 281,

286 (1st Cir. 2003). The district court's views about the effect

of the report on the totality of the circumstances (and, thus, on

the court's finding of voluntariness) is essential to a reasoned

determination of the prejudice prong of the Strickland test.

In an effort to blunt the force of this reasoning, the

appellant urges us to invoke the rarely used exception to the

principle that claims of ineffective assistance must make their

debut in the district court. That exception applies "when the

critical facts are not in dispute and the record is sufficiently

developed to allow reasoned consideration of the claim." Mala, 7

F.3d at 1063.

The appellant has not satisfied these criteria. The

record is not fully fleshed out, and only the district court — not

this court — has the institutional competence to gather the needed

supplementation. See United States v. Moran, 393 F.3d 1, 10-11

(1st Cir. 2004).

Given the gaps in the record and the myriad uncertainties

that exist, the ineffective assistance of counsel claim must be

resolved on a better-developed record. See, e.g., id. (declining
 This is in no way a finding on the merits but, rather, an 1

acknowledgment that the appellant has limned a colorable claim. 

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to hear a claim of ineffective assistance, raised for the first

time on appeal, when the record was unclear as to whether counsel's

challenged decision when made, "was a calculated stratagem or a

mere oversight"). Thus, we have no principled choice but to

dismiss this assignment of error. We do so, however, without

prejudice to the appellant's pursuit of his ineffective assistance

claim through a petition filed in the district court under 28

U.S.C. § 2255. Moreover, because we believe that the appellant has

articulated a facially plausible claim of ineffectiveness, we

advise the district court that, if such a petition ensues, the

appointment of counsel would be warranted. See 18 U.S.C. 1

§ 3006A(a)(2)(B) (stipulating that, if "the interests of justice so

require, representation may be provided for a financially eligible

person" seeking relief under section 2255); see also Mala, 7 F.3d

at 1063-64 (delineating criteria for such appointments). 

The appellant's remaining ground of appeal is a claim of

sentencing error, which also relates to his mental retardation. He

contends that, had the district court given due weight to his

diminished mental capacity, it would have sentenced him below the

bottom of the GSR. See USSG §5K2.13 (providing that diminished

mental capacity may serve as a basis for a downward departure).
 The facts in the instant case are even stronger in favor of 2

waiver than those in Rodríguez-Castillo. Here, the appellant's

counsel affirmatively accepted the findings contained in the PSI

Report. 

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To begin, this argument is procedurally defaulted: the

appellant makes it for the first time in this court. The

government asserts that this omission amounts to a waiver.

Based on the record, waiver is not an implausible

conclusion. During the disposition hearing, the district court

specifically inquired whether the appellant had any objections to

the findings set out in the presentence investigation report (PSI

Report). Defense counsel replied in the negative, even though the

PSI Report made no reference either to the appellant's IQ or to his

mental retardation. In somewhat the same vein, counsel never moved

for a downward departure on any ground approximating diminished

mental capacity. This background might well support a finding of

waiver. See, e.g., United States v. Rodríguez, 311 F.3d 435, 437

(1st Cir. 2007) (differentiating between waiver and forfeiture and

finding a waiver).

We need not decide that question. As framed, the

appellant's argument boils down to a complaint that the sentencing

court should have departed sua sponte. We confronted just such an

argument, in a nearly identical posture, in United States v.

Rodríguez-Castillo, 350 F.3d 1 (1st Cir. 2003). There, we 2

discussed the possibility of waiver but assumed instead, favorably
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to the appellant, that the failure to raise the argument was merely

a forfeiture. Id. at 5-6. Thus, we afforded review for plain

error. Id. at 6. We follow that lead and apply the plain-error

standard here. 

To satisfy this standard, the appellant must show: "(1)

that an error occurred (2) which was clear or obvious and which not

only (3) affected the defendant's 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). This standard is not appellant-friendly. "A

party who aspires to demonstrate plain error faces a steep uphill

climb." United States v. Jiménez, 512 F.3d 1, 3 (1st Cir. 2007).

The appellant's case fails to clear any of the four

hurdles that collectively comprise the plain-error standard.

Because an appellant must satisfy all four of the prescribed

elements to establish plain error, Duarte, 246 F.3d at 60, it

suffices for present purposes to discuss only the first two

elements (which typically are conjoined). 

The record makes manifest that at no point during the

disposition hearing did the sentencing court disregard or ignore

evidence describing a diminished mental capacity or suggesting the

appellant's retardation. To the contrary, the court scrupulously

considered the appellant's personal characteristics as illuminated

by the record, including his history of drug abuse. The court also
 We take no view on whether the appellant, as part of a claim 3

of ineffective assistance of counsel in a subsequent section 2255

petition, may allege that trial counsel's failure to raise

diminished mental capacity as a ground for either a departure or a

variance at sentencing constituted ineffective representation. 

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weighed the appellant's contention that his particular crime was

atypical. Given that departures from a properly calculated GSR are

discretionary, see, e.g., United States v. Quiñones-Medina, 553

F.3d 19, 24 (1st Cir. 2009), we cannot find any error — let alone

clear or obvious error — in the district court's failure to depart

sua sponte from the GSR. See Rodríguez-Castillo, 350 F.3d at 5-6.

Accordingly, we reject the appellant's claim of sentencing error.3

We need go no further. For the reasons elucidated above,

we affirm the judgment appealed from, without prejudice to the

appellant's right to raise claims of ineffective assistance of

counsel in a separate proceeding brought pursuant to 28 U.S.C.

§ 2255.

Affirmed.