[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]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. Vega-
Pacheco, Assistant United States Attorney, and Nelson Perez-
Sosa, Assistant United States Attorney, on brief for appellee.
January 24, 2002
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.
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