United States v. Kenney

United States Court of Appeals
For the First Circuit

No. 12-2451

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERT C. KENNEY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Howard, Circuit Judges.

W. Daniel Deane, with whom Nixon Peabody LLP was on brief, for
appellant.
Kelly Begg Lawrence, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney and Michael J.
Crowley, Assistant United States Attorney, were on brief, for
appellee.

June 25, 2014
 HOWARD, Circuit Judge. After pleading guilty to drug

distribution, robbery, and firearm charges, Robert Kenney now seeks

withdrawal of his guilty plea. He argues that the district court

erred in failing to assess his competency, that it inadequately

assessed whether his plea was "knowing" and "voluntary" within the

meaning of Fed. R. Crim. P. 11, and that his trial lawyer failed to

provide him with effective assistance. Kenney also challenges the

district court's imposition of a ten-year mandatory minimum

sentence, contending that the district court gave him inadequate

notice of the evidence on which it relied and that it incorrectly

evaluated his claim of sentencing factor manipulation. Finding no

error, we affirm.

I.

The morning of February 11, 2011 promised to be a busy

one for Kenney and his two co-conspirators, Christopher Littlejohn

and Ramone Arakelow. Well before dawn, the trio piled into

Kenney's truck and drove to a parking lot in Saugus, Massachusetts,

where a fourth conspirator awaited them. Posing as law enforcement

officers, the four would then break into the apartment of two

Brazilian drug dealers, restrain the occupants, and abscond with

five kilograms of cocaine and $200,000 in cash. In preparation for

the robbery, Kenney had obtained a Boston Police Department patch

and police light, along with knives, duct tape, and zip ties to

restrain the apartment's denizens. Kenney had also discussed the

-2-
layout of the apartment with Littlejohn and the fourth conspirator,

and arranged to break in at a time when only one of the drug

dealers was home and when an associate would be present to open the

door.

Unfortunately for the would-be robbers, there was no

apartment, no cocaine, and no money. Worse still, there was not

even a fourth conspirator. Instead, the "co-conspirator" awaiting

them in the parking lot was a cooperating witness ("Informant 2").

After Kenney, Littlejohn, and Arakelow entered Informant 2's car

and reviewed their plans for the heist, Informant 2 signaled to law

enforcement and the three were arrested.

In reality, the planned burglary was a reverse sting

operation devised by the Bureau of Alcohol, Tobacco, Firearms, and

Explosives ("ATF"), which had been investigating Kenney since the

spring of 2010 in connection with the illegal sale of firearms.

Between May and December 2010, an ATF informant ("Informant 1") had

arranged four firearm purchases with Kenney. When Kenney alluded

during one of these sales to a "safe job" he had previously

performed, Informant 1 told him about the Brazilian drug dealers'

stash-house, which Kenney expressed immediate interest in robbing.

Informant 1 continued to weave this fiction in subsequent meetings

with Kenney, introducing him to a "business partner" (in reality

Informant 2) with whom Kenney planned the robbery.

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 The robbery scheme may have been quixotic, but its

consequences were all too real for the conspirators. On March 16,

2011, a grand jury indicted Kenney, Littlejohn, and Arakelow for

conspiracy to possess with intent to distribute at least five

kilograms of cocaine, 21 U.S.C. §§ 841(a)(1), 846, and conspiracy

to commit robbery affecting interstate commerce, 18 U.S.C. § 1951.1

Kenney was also charged as a felon in possession of a firearm in

four counts arising from his 2010 gun sales.

The primary issues on this appeal first surfaced at

Kenney's arraignment in April 2011, when defense counsel informed

the Magistrate Judge that Kenney "ha[d] a serious medical

condition," that he had undergone brain surgery, and that he was

not receiving medical treatment at the facility in which he was

being held. The Magistrate Judge replied that she would "address

any motion that [she] need[ed] to," but suggested that Kenney's

counsel "work with the Government and . . . see if something can be

done less formally."

Kenney soon entered into early plea negotiations with the

government. In a missive to the Assistant U.S. Attorney, defense

counsel indicated that "Mr. Kenny [sic] is suffering from ill

1
Littlejohn pleaded guilty to the robbery conspiracy count
in exchange for the government's dismissal of the drug conspiracy
charge, and was sentenced to 41 months' imprisonment. Arakelow
opted to go to trial, and in March 2012 was convicted of the
robbery conspiracy count and acquitted of the drug conspiracy
count, receiving a sentence of 120 months' imprisonment.

-4-
health. His condition is deteriorating rapidly. Therefore, it

would be in everyone's best interest to come to an agreement sooner

rather than later." Toward that end, Kenney moved for the

preparation of a pre-plea presentence report ("PSR"), citing

"serious health issues" and indicating a desire to plead guilty.

The pre-plea PSR, issued in January 2012, stated that Kenney had

undergone brain surgery in 2009 to remove a tumor, that he was

taking several prescription medications, and that he reported no

mental, behavioral, or emotional problems. Kenney's girlfriend did

state, however, that he suffered from "some undiagnosed mental

health issues because his moods fluctuate[d] and he [could] be

temperamental" and that according to Kenney's relatives, "his mood

ha[d] changed since the surgery."

Kenney also filed an ex parte motion requesting $10,000

in Criminal Justice Act ("CJA") funds to engage an expert witness

to testify about Kenney's mental health as it bore on culpability

for sentencing purposes. The motion alluded to Kenney's 2009 brain

surgery and further stated: "Based on observations of undersigned

counsel, as well as conversations with the Defendant's daughter, it

appears as though the Defendant suffers from one or more mental

diseases or defects," which had "never been properly diagnosed or

treated." It suggested that "several complex factors contributing

to [Kenney's] behavior leading up to the charged offenses could

only be determined by a forensic psychologist," and therefore that

-5-
the proposed expert's testimony "would prove extremely helpful to

the Court in determining the appropriate sentence for the

Defendant." The district court denied this motion, finding the

requested sum "unreasonably high." Kenney filed a second such

motion in November 2011, this time seeking $7,000 and attaching a

letter from the putative expert deeming it "absolutely indicated to

conduct an evaluation of criminal responsibility as decision-

making, and/or other mental faculties, may have been affected" by

the brain surgery. The district court granted this motion in part,

allowing a maximum expenditure of $4,000.

In March 2012, Kenney signed a plea agreement with the

government, in which he agreed to provide substantial assistance in

the prosecution of Arakelow. In exchange, the government would

dismiss the robbery conspiracy charge, recommend a below-Guideline

sentence, and move under 18 U.S.C. § 3553(e) for relief from the

ten-year mandatory minimum sentence on the drug conspiracy count.

At Kenney's change-of-plea hearing on March 15, however, defense

counsel informed the court that Kenney wished to withdraw from the

plea agreement and plead guilty to all counts without the benefit

of the agreement. Kenney made no objection to his lawyer's

statement, and the district court proceeded to accept his plea on

that basis.

Shortly thereafter, Kenney sent a letter to his attorney

claiming to have received threats and suggesting a desire to

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withdraw the guilty plea.2 On March 22, Kenney's lawyer brought

this letter to the court's attention at the final conference before

Arakelow's trial. While admitting that he was "confused by" the

letter, defense counsel took it to mean that Kenney "was forced to

not take the government deal because of what he [was] being labeled

[i.e., a cooperator], and . . . what he [was] having to endure in

jail." The district court responded that if Kenney wished to

withdraw his plea, it would allow him to do so and go to trial

alongside Arakelow in four days.

The following day, after meeting with Kenney, defense

counsel sent a letter to the government and the court stating that

Kenney was "adamant" that he did not wish to withdraw his guilty

plea. The letter also shed light on Kenney's sudden repudiation of

the plea agreement, explaining that Arakelow had been "tipped off

to the fact that Mr. Kenney was cooperating" with the government

and had accordingly made "veiled threats" to Kenney and, through

recently released inmates, to members of Kenney's family. Although

it was likely too late for Kenney to testify at Arakelow's trial

three days later, the letter beseeched the government to honor the

plea agreement notwithstanding Kenney's refusal to cooperate. The

government declined to do so, and three days later, Kenney appeared

2
The letter has apparently been lost, and its exact date is
uncertain. We assume for purposes of this appeal that it was sent
"[o]n or about March 21," as Kenney claims.

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before the court and confirmed that he did not wish to withdraw his

guilty plea.

The case proceeded to sentencing on November 29, 2012.3

In his sentencing memorandum, Kenney argued inter alia that the

district court should disregard as "sentencing factor manipulation"

the five kilograms of cocaine ATF added to the conspiracy, which

subjected Kenney to a ten-year mandatory minimum sentence under 21

U.S.C. § 841(b)(1)(A). The government sought to rebut this

argument by pointing to several recorded conversations involving

Kenney that were admitted into evidence at Arakelow's trial. At

sentencing, the court agreed with the government's interpretation

of the recordings, concluding that "Kenney was the ringleader, the

mastermind . . . the recruiter, and an enthusiastic participant in

this scheme." The court accordingly rejected Kenney's sentencing

factor manipulation argument and imposed the mandatory minimum

sentence of 120 months' imprisonment. This appeal followed.

II.

A. Conviction

Kenney contends that his guilty plea must be vacated for

three reasons: because the district court 1) failed to evaluate sua

3
Prior to sentencing, Kenney filed a third motion for CJA
funds, seeking an additional $8,000 for a psychological evaluation
in aid of sentencing. The district court granted an additional
$2,000 in funds (raising the total allotted amount to $6,000), and
denied Kenney's motion for reconsideration, stating that it
"consider[ed] the amount excessive given the usual charges for
examinations of its type."

-8-
sponte his competency to plead guilty and 2) inadequately probed

whether his plea was "knowing" and "voluntary" as required under

Fed. R. Crim. P. 11, and 3) because his trial counsel did not

provide the effective assistance guaranteed under the Sixth

Amendment. At a minimum, Kenney requests that we remand for an

evidentiary hearing on these issues. We address each of Kenney's

challenges in turn.

1. Competency

Supreme Court precedent has long made clear that "[a]

criminal defendant may not be tried unless he is competent, and he

may not . . . plead guilty unless he does so 'competently and

intelligently.'" Godinez v. Moran, 509 U.S. 389, 396 (1993)

(citation omitted) (quoting Johnson v. Zerbst, 304 U.S. 458, 468

(1938)); see also Brady v. United States, 397 U.S. 742, 758 (1970);

Pate v. Robinson, 383 U.S. 375, 378 (1966). This requirement "has

a modest aim: It seeks to ensure that [the defendant] has the

capacity to understand the proceedings and to assist counsel."

Godinez, 509 U.S. at 402; see also Dusky v. United States, 362 U.S.

402, 402 (1960). To safeguard this constitutional guarantee, a

court must, on either party's motion or sua sponte, order a

competency hearing "if there is reasonable cause to believe that

the defendant may presently be suffering from a mental disease or

defect rendering him mentally incompetent to the extent that he is

unable to understand the nature and consequences of the proceedings

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against him or to assist properly in his defense." 18 U.S.C. §

4241(a).

Neither Kenney nor the government requested a competency

hearing below; instead, Kenney avers that the court, presented with

various intimations of Kenney's mental health issues, should have

ordered such a hearing on its own initiative. The government

responds that Kenney has waived this argument because he declined

to withdraw his allegedly incompetent guilty plea when given the

opportunity to do so. We decline to find this claim waived,

however, because the very pith and marrow of Kenney's argument is

that he was incapable of understanding the nature and consequences

of the proceedings against him, rendering intentional waiver an

impossibility. See Pate, 383 U.S. at 384 ("[I]t is contradictory

to argue that a defendant may be incompetent, and yet knowingly or

intelligently 'waive' his right to have the court determine his

capacity to stand trial."); United States v. Hurley, 63 F.3d 1, 18

(1st Cir. 1995) ("For obvious reasons, competency claims are not

subject to ordinary waiver doctrine."). We accordingly review the

district court's decision not to hold a competency hearing for

abuse of discretion. United States v. Maryea, 704 F.3d 55, 69 (1st

Cir. 2013); United States v. Lebrón, 76 F.3d 29, 32 (1st Cir.

1996).4

4
The parties disagree as to the proper standard of review.
The government avers that "[b]ecause Kenney neither requested a
competency hearing nor objected to the district court's failure to

-10-
 On appeal, Kenney points to several items of evidence

that he contends should have alerted the district court to the need

for a competency hearing: trial counsel's statement at arraignment

that Kenney had undergone brain surgery and was not receiving

medical treatment in jail; Kenney's citation of "serious health

issues" in his motion for a pre-plea PSR; Kenney's ex parte motions

seeking funds to retain a psychologist to assess his mental

capacity; the allusion in one of these motions to "mental diseases

or defects" that had "never been properly diagnosed or treated";

the putative psychological expert's opinion that it was "absolutely

indicated to conduct an evaluation of criminal responsibility as

decision-making, and/or other mental faculties, may have been

affected" by the 2009 brain surgery; the pre-plea PSR, which

chronicled Kenney's history of drug use and noted inter alia that

convene one, this claim is reviewed only for plain error."
Although we did review for plain error rather than abuse of
discretion in United States v. Giron-Reyes, 234 F.3d 78, 80 (1st
Cir. 2000), that case dealt with the failure to hold a competency
hearing under a separate statutory provision, 18 U.S.C. § 4241(e),
which requires the court to hold a competency hearing after the
release of a defendant previously deemed incompetent and
hospitalized under 18 U.S.C. § 4241(d). The government cites no
cases for the proposition, contrary to Maryea and Lebrón, that
plain error review also applies under § 4241(a), and in any event
we find abuse of discretion review more appropriate given the
inherent contradiction recognized in Pate and Hurley. See United
States v. Lindsey, 339 F. App'x 956, 959 & n.4 (11th Cir. 2009)
(explaining that plain error review "would unduly cramp review of
the district court's obligation to determine for itself whether a
criminal defendant is mentally incompetent," and noting "that most
of our sister courts apply the abuse of discretion standard of
review to a district court's decision about whether to sua sponte
order a competency hearing").

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Kenney had experienced changes in mood and short-term memory loss

since his surgery; and Kenney's last-minute, and at the time

unexplained, withdrawal from the plea agreement.

These facts do indeed raise concerns about the general

state of Kenney's mental health -- concerns, we might add, that are

endemic to the criminal justice system. See generally James &

Glaze, Bureau of Justice Statistics Special Report: Mental Health

Problems of Prison and Jail Inmates 1 (2006) (reporting that 45% of

federal prisoners in 2005 suffered mental health problems). But

the question before us is more circumscribed: whether the facts

before the district court gave it "reasonable cause to believe"

that Kenney's mental illness rendered him "unable to understand the

nature and consequences of the proceedings against him or to assist

properly in his defense." 18 U.S.C. § 4241(a). As we stated in

United States v. Widi, 684 F.3d 216, 221 (1st Cir. 2012), "[a]

defendant may have serious mental illness while still being able to

understand the proceedings and rationally assist his counsel." The

district court was entitled to draw that conclusion here.

The allegedly impugning mental health evidence was either

too general (e.g., Kenney's complaint of "serious health issues"

and history of drug use) or else focused on issues distinct from

Kenney's competency. For instance, nothing in the ex parte motions

for funds or the putative expert's letter indicated concern about

Kenney's competency; instead, the stated rationale for the proposed

-12-
expert evaluation was to "help[] . . . the Court in determining the

appropriate sentence for the Defendant" by, in the expert's words,

"address[ing] the question of criminal responsibility" (emphases

added). Concerns about distinct mental faculties (decision-making

and responsibility) at an earlier time (during the commission of

the offense) do not necessarily engender reasonable doubts about

Kenney's understanding and ability to assist counsel during the

criminal proceedings. As for Kenney's eleventh-hour repudiation of

the plea agreement, the subsequent revelation of Arakelow's threats

demonstrates that while Kenney's withdrawal may have been less than

entirely volitional, it was not necessarily indicative of

incompetency. The district court was entitled to conclude that

Kenney was if anything all too cognizant of the threats that he

faced and their possible consequences.

Nor were allusions to Kenney's brain surgery, drug use,

and undiagnosed or untreated mental illnesses enough, ipso facto,

to necessitate a competency hearing. The defense never voiced any

specific concern about Kenney's competency; indeed, on the

contrary, Kenney informed the interviewing Probation Officer that

he was not experiencing, and never had experienced, any mental,

emotional, or behavioral problems. And as we discuss in greater

detail in section A.2 infra, Kenney reaffirmed this testimony at

his change-of-plea hearing, informing the district court that he

had never been treated for mental or psychological problems, that

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the brain surgery had slowed his mental processes but did not

otherwise impact his comprehension, and that he understood the

charges against him, the penalties he faced, and the rights he

relinquished by pleading guilty. Such affirmations of competency,

even if not conclusive, are entitled to some weight when the

defendant is not "plainly incoherent or irrational." Widi, 684

F.3d at 220. We also find it "significant that . . . [Kenney's]

attorney, who more than any other courtroom player 'enjoy[ed] a

unique vantage for observing whether his client [was] competent,'

did not raise any concern about [Kenney's] competency." United

States v. Brown, 669 F.3d 10, 17 (1st Cir. 2012) (quoting United

States v. Muriel-Cruz, 412 F.3d 9, 13 (1st Cir. 2005)) (internal

brackets omitted).5

In short, although the district court may have been on

notice that Kenney struggled with mental illness generally, we find

no abuse of discretion in the district court's failure to sua

sponte order a hearing on the specific issue of competency. As we

have stated in the past, a holding to the contrary "would 'come

close to requiring district courts to order competency hearings sua

sponte in every case where a defendant has some history of

psychiatric treatment and, even vaguely, mentions the problem.'"

5
That significance is only heightened by the fact that
defense counsel did raise concerns about Kenney's mental health in
other contexts (e.g., culpability), suggesting that Kenney's lawyer
did not simply turn a blind eye to these issues altogether.

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Lebrón, 76 F.3d at 33 (quoting Hernández-Hernández v. United

States, 904 F.2d 758, 760 (1st Cir. 1990)). We decline to impose

such a requirement and thereby establish the competency hearing as

"nearly a routine step between arraignment and trial." Figueroa-

Vazquez v. United States, 718 F.2d 511, 512 (1st Cir. 1983).

2. Plea Colloquy

Kenney next avers that his plea colloquy was deficient

under Fed. R. Crim. P. 11(b), which requires a court to advise a

pleading defendant of his rights and determine that the defendant's

guilty plea is knowing and voluntary. Kenney concedes that plain

error review is proper due to his failure to raise this challenge

below. See United States v. Vonn, 535 U.S. 55, 58-59 (2002);

United States v. Borrero-Acevedo, 533 F.3d 11, 15 (1st Cir. 2008).6

We have explained that Rule 11 addresses three "core

concerns": "1) absence of coercion; 2) understanding of the

charges; and 3) knowledge of the consequences of the guilty plea."

United States v. Cotal-Crespo, 47 F.3d 1, 4 (1st Cir. 1995).

Kenney alleges that his plea colloquy was marred by errors

implicating each of these concerns, rendering his plea neither

6
Once again, we decline the government's invitation to find
this claim waived altogether. Whether Kenney could be said to have
"intentionally relinquishe[d] or abandon[ed]" his Rule 11 claim by
refusing the district court's offer of withdrawal, which would have
required him to go to trial in four days, presents a closer
question than the substantive Rule 11 claim itself. United States
v. Rodríguez-León, 402 F.3d 17, 26 (1st Cir. 2005). We therefore
resolve Kenney's claim on the latter basis.

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knowing nor voluntary. More specifically, Kenney contends that the

district court failed to adequately inquire into 1) the effect of

his various medications on his comprehension and 2) the reason for

his sudden renunciation of the plea agreement. We address each

argument separately.

i. Medication

In arguing that the district court inadequately assessed

his understanding and knowledge, Kenney points to the following

exchange at his change-of-plea hearing:

[COURT]: Have you ever been treated for any
mental or psychological problem?

[KENNEY]: No.

[COURT]: Are you presently taking any
prescription medication?

[KENNEY]: Yes.

[COURT]: Is it any kind of medication that
would affect your ability to understand this
proceeding? Is . . . your mind clear?

[KENNEY]: I think it is.

[COURT]: You're the best judge of that.

[KENNEY]: Yeah.

[COURT]: What, just generally, what type of
medication are you taking?

[KENNEY]: I take five or six of them. I know
a couple of them is like Altrum, stuff for my
-- I had brain surgery and nasal surgery. So
it might be to that effect. I'm not sure.

[COURT]: Are you recovering now from the
surgery or --

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 [KENNEY]: I'm trying.

[COURT]: Trying?

[KENNEY]: Yes.

[COURT]: But you don't feel that that impacts
your ability to understand things?

[KENNEY]: Sometimes it takes me a little
longer to understand.

[COURT]: But your comprehension is there, it's
just that the mental processes go a little
more slowly?

[KENNEY]: Yes.

[COURT]: Mr. Kenney, if I start speaking too
quickly or if something seems to be passing by
too quickly, let me know, and I'll rephrase
it, okay?

[KENNEY]: Okay.

Kenney points out that the district court's compound

inquiry -- "Is it any kind of medication that would affect your

ability to understand this proceeding? Is . . . your mind clear?"

-- renders his response ("I think it is") ambiguous, as it is

unclear which question Kenney was answering. Because "I think it

is" could be taken as an affirmative answer to the first query,

Kenney suggests that this case is similar to United States v.

Parra-Ibañez, 936 F.2d 588 (1st Cir. 1991), in which the defendant

informed the district court at his Rule 11 hearing that he was

taking "Ativan, Halcion and Restoril" and that Ativan was "a drug

to control [his] nerves," id. at 591. We held that the court

violated Rule 11 by failing to further inquire "what effects, if

-17-
any, such medications might be likely to have on [the defendant's]

clear-headedness." Id. at 596.

We agree with the government that Parra-Ibañez is

distinguishable and that our more recent decision in United States

v. Morrisette, 429 F.3d 318 (1st Cir. 2005), disposes of Kenney's

claim. In Morrisette, we found that the district court's

questioning was "not plainly inadequate" when the court

"specifically inquired whether [the defendant's named] medication

. . . prevented [the defendant] from understanding what was

happening during the hearing." Id. at 322. We noted that in

Parra-Ibañez, by contrast, the court failed to make any such

inquiry at all. Id.; see also Cody v. United States, 249 F.3d 47,

53 (1st Cir. 2001) (stating that the Parra-Ibañez court "failed to

follow up with any question whatsoever about whether the

defendant's medication affected his competence to plead").

Here, too, the district court's catechism was not plainly

inadequate. Admittedly, as Kenney points out, the court did not

seek to ascertain the name and dosage of each medication. Although

it might have been advisable to do so, we have recognized that

"there is certainly no settled rule that a hearing cannot proceed

unless precise names and quantities of drugs have been identified."

United States v. Savinon-Acosta, 232 F.3d 265, 269 (1st Cir. 2000).

After asking Kenney about his medications, the court proceeded to

ask him whether his recovery from brain surgery "impact[ed his]

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ability to understand things" and whether his "comprehension [was]

there," and Kenney responded that his mental processes had been

slowed but not otherwise impaired.7 In light of Kenney's

responses, and in the absence of other identifiable red flags in

Kenney's performance at the hearing, the district court did not

plainly err in opting not to inquire further. See id. at 269

("Courts have commonly relied on the defendant's own assurance (and

assurances from counsel) that the defendant's mind is clear.").

7
We recognize that the district court did not explicitly ask
whether Kenney's medication impacted his understanding, and that
its inquiry ("you don't feel that that impacts your ability to
understand things?") was made in response to Kenney's testimony
that he was trying to recover from his brain surgery. While the
best practice is certainly to make a specific inquiry regarding the
effects of any medications, given the particular facts of this
case, Kenney cannot demonstrate plain error. Unlike Parra-Ibañez,
no competency hearing was required in Kenney's case, see section
A.1 supra, and Kenney told the district court that he had never
been treated for mental or psychological problems. The district
court thus had little "reason to suspect that the medications taken
by the accused might impinge upon the accused's capacity to enter
a voluntary and intelligent plea." Parra-Ibañez, 936 F.2d at 595
(emphasizing defendant's testimony that he took medication in
connection with his treatment for a "mental or emotional
condition"). More significantly, the district court did not
abandon the impairment inquiry after learning that Kenney was
taking medication; it probed further. The district court
immediately followed the discussion of medications and surgery with
a question that fairly encompassed Kenney's mental impairment,
whether caused by medications or by the brain surgery itself ("your
comprehension is there, it's just that the mental processes go a
little more slowly?"). It repeatedly questioned Kenney's
understanding at each step of the hearing, and concluded by
verifying generally that it had not "confused [Kenney] by anything
[it] said or any question [it] asked." These facts, particularly
when considered together with the district court's express findings
that Kenney was well-oriented, competent, and responsive during the
change-of-plea hearing, do not support a finding of plain error for
lack of greater specificity in questioning.

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 ii. Voluntariness

Kenney next contends that his guilty plea was coerced,

and therefore invalid, due to the threats he received from

Arakelow, which led him to withdraw from his plea agreement. See

United States v. Martínez-Molina, 64 F.3d 719, 732 (1st Cir. 1995)

("[A] guilty plea is involuntary and therefore invalid if it is

obtained 'by actual or threatened physical harm or by coercion

overbearing the will of the defendant.'" (quoting Brady, 397 U.S.

at 750)). At the outset of the change-of-plea hearing, defense

counsel informed the court that Kenney was withdrawing from the

plea agreement, but that he would nevertheless "plead guilty and

admit responsibility for all of his own actions." Kenney avers

that the court, presented with this "sudden about-face," should

have "ask[ed] Kenney the obvious question--why are you renouncing

your plea deal only to plead guilty to everything?"

Although the district court did not pose that question,

it did ask Kenney whether he was "pleading guilty willingly,

freely, and voluntarily"; whether anyone "coerced [him] in a

physical sense into pleading guilty"; and whether "any threats

[had] been made, other than the threat of being prosecuted."

Kenney's answers, which "carry a strong presumption of verity," did

not indicate any coercion. Id. at 733 (quoting Blackledge v.

Allison, 431 U.S. 63, 74 (1977)) (internal quotation marks

omitted). The district court did not need to delve any deeper.

-20-
 We are not without sympathy for Kenney insofar as his co-

defendant's alleged threats may have driven him to forego the

benefit of a favorable plea agreement and resulted in a mandatory

minimum sentence he may not otherwise have faced. But whether

Kenney was coerced into withdrawing from the plea agreement is,

contrary to Kenney's suggestion, a wholly distinct question from

whether he was coerced into entering a guilty plea rather than

going to trial. Cf. Weatherford v. Bursey, 429 U.S. 545, 561

(1977) ("[T]here is no constitutional right to plea bargain; the

prosecutor need not do so if he prefers to go to trial."). Kenney

fails to show how Arakelow's threats coerced him not only into

withdrawing from the plea agreement but also into taking the next

step of entering a bare guilty plea.8 The district court was

accordingly under no obligation to inquire into Kenney's rationale

for withdrawing from the plea agreement.

3. Ineffective Assistance

Turning from the adequacy of the district court's Rule 11

inquiry to the performance of trial counsel, Kenney next argues

that he was deprived of his Sixth Amendment right to effective

assistance of counsel. Supreme Court precedent holds both that a

guilty plea may be set aside due to ineffective assistance of

counsel, Hill v. Lockhart, 474 U.S. 52, 58 (1985), and that "the

8
Indeed, coerced withdrawal from a favorable plea agreement
would if anything undermine a defendant's incentive to plead guilty
rather than go to trial.

-21-
negotiation of a plea bargain is a critical phase of litigation for

purposes of the Sixth Amendment right to effective assistance of

counsel," Padilla v. Kentucky, 559 U.S. 356, 373 (2010); see also

Missouri v. Frye, 132 S. Ct. 1399, 1407-08 (2012). Kenney alleges

a number of failings on his lawyer's part: failure to raise an

entrapment defense before the court or in plea negotiations;

failure to move for a competency hearing; failure to identify

alternatives to the proposed expert evaluation of Kenney's mental

health when the court denied Kenney's requests for funding; failure

to question Kenney's decision to withdraw from the plea agreement;

failure to object during the plea colloquy; and (most critically in

Kenney's estimation) failure to advise Kenney to withdraw his

guilty plea when given the opportunity to do so.

Faced with ineffective assistance of counsel claims on

direct appeal, we have resorted to three distinct options. "First,

and most typically, we respond that such claims 'must originally be

presented to the district court' as a collateral attack under 28

U.S.C. § 2255" due to the paucity of the record and the district

court's "better position to adduce the relevant evidence" as to

whether counsel's performance was deficient and whether such

deficiency prejudiced the defendant. United States v. Colón-

Torres, 382 F.3d 76, 84-85 (1st Cir. 2004) (quoting United States

v. Ovalle-Marquez, 36 F.3d 212, 221 (1st Cir. 1994)); see also

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

-22-
Alternatively, in the "comparatively rare situations" where the

critical facts are undisputed and the record is sufficiently

developed, we may resolve the merits of the claim on direct appeal.

Colón-Torres, 382 F.3d at 85. Finally, in the "gray area between

these two categories," where the record is embryonic but

"contain[s] sufficient indicia of ineffectiveness," we may opt to

remand for an evidentiary hearing without requiring the defendant

to bring a collateral challenge. Id.

Unsurprisingly, Kenney endeavors to fit this case within

the second, or at least the third, of these categories. We,

however, are unpersuaded. Unlike some of the cases in which we

directly considered ineffective assistance claims, the alleged

deficiency here did not consist of an isolated and easily analyzed

trial decision. See, e.g., United States v. Downs-Moses, 329 F.3d

253, 265 (1st Cir. 2003); United States v. Natanel, 938 F.2d 302,

310 (1st Cir. 1991). Nor is the prejudice analysis as

straightforward as in a case where overwhelming trial evidence

precludes any finding of prejudice. See, e.g., United States v.

LaPlante, 714 F.3d 641, 651 (1st Cir. 2013). On the contrary, in

this case we simply cannot know trial counsel's rationale, or lack

thereof, for the challenged decisions, nor can we know whether

Kenney was prejudiced by these alleged shortcomings. The record is

too fraught with uncertainty to warrant either appellate resolution

or remand for an evidentiary hearing. Kenney is free, however, to

-23-
follow the more common avenue of review and raise these claims in

a § 2255 petition before the district court.9

B. Sentencing

In opposing the imposition of a ten-year mandatory

minimum sentence under 21 U.S.C. § 841(b)(1)(A), Kenney argued

before the district court that the government had engaged in

improper sentencing factor manipulation. The crux of Kenney's

argument was that ATF improperly expanded the scope of the planned

robbery from $100,000 in cash (the amount that ATF informants

initially told Kenney was hidden in the fictive apartment) to

$200,000 plus five kilograms of cocaine worth up to $100,000,

thereby subjecting Kenney to a ten-year mandatory minimum sentence

on the drug conspiracy count. The district court rejected this

claim, relying on recorded conversations between Kenney and an ATF

informant establishing Kenney's predisposition. On appeal, Kenney

raises both procedural and substantive challenges to this

conclusion, averring that the district court failed to provide him

sufficient notice of its reliance on the recordings and improperly

evaluated his sentencing factor manipulation claim. We address

each issue separately.

9
We direct the district court, if Kenney brings a § 2255
petition, requests counsel, and qualifies financially, to appoint
counsel for him under 18 U.S.C. § 3006A(a)(2)(B). See United
States v. Ortiz-Graulau, 526 F.3d 16, 21 (1st Cir. 2008); Mala, 7
F.3d at 1064.

-24-
 1. Notice

Both the Due Process Clause and Fed. R. Crim. P. 32

entitle a defendant to be sentenced on the basis of reliable and

accurate information. See United States v. Rivera-Rodríguez, 489

F.3d 48, 53 (1st Cir. 2007); United States v. Berzon, 941 F.2d 8,

18 (1st Cir. 1991). To effectuate that guarantee, we have held

that "a defendant may not be placed in a position where, because of

his ignorance of the information being used against him, he is

effectively denied an opportunity to comment on or otherwise

challenge material information considered by the district court."

Berzon, 941 F.2d at 21. Kenney claims to have been left in

precisely such a plight due to the district court's reliance on

recorded conversations between him and the ATF informants; although

these recordings were admitted into evidence at Arakelow's trial,

Kenney claims to have received insufficient notice of them because

"the first time [he] was alerted that the recordings might be used

at his sentencing was when he received the government's opposition

to his motion for downward departure," filed on the eve of

sentencing. As Kenney did not raise this argument below, we review

for plain error only.

Kenney characterizes this case as much like Berzon, where

we held that the district court's reliance on testimony from a co-

defendant's sentencing violated due process and Rule 32 where the

defendant was unaware of the testimony. In so holding, we

-25-
distinguished two cases from other circuits in which the use of

evidence from a related trial was upheld, noting that in these

cases, with which we "agree[d] entirely," "the facts contained in

the testimony relied upon were included in the presentence report";

in Berzon, by contrast, "the testimony and argument at [the co-

defendant's] sentencing included information not in the [PSR] nor

otherwise in the record in Berzon's case." Id. at 19-20 (citing

United States v. Notrangelo, 909 F.2d 363 (9th Cir. 1990); United

States v. Romano, 825 F.2d 725 (2d Cir. 1987)). More recently, we

adhered to this distinction in Rivera-Rodríguez, holding that the

district court could rely on testimony from a co-defendant's trial

where, unlike in Berzon, the information elicited at the trial

concerning drug quantity and the duration of the conspiracy was

"hardly new to [the defendant] and his counsel"; on the contrary,

"[t]he length of the conspiracy and quantity of drugs involved were

set forth in the indictment, plea agreement, and PSR." 489 F.3d at

55.

Berzon is distinguishable for the same reason here.

Notwithstanding Kenney's protestations to the contrary, our review

of the PSR and other documents in the record persuades us that the

information upon which the district court relied had long been

available to Kenney. The numerous recorded conversations between

Kenney and the ATF informants, which convinced the district court

that Kenney was the "ringleader" and "mastermind" of the planned

-26-
heist, were mentioned as early as February 17, 2011, in an

affidavit by an ATF special agent attached to the criminal

complaint. The affidavit stated inter alia that in conversations

with Informant 2, "Kenney pushed to set up the armed robbery of the

drug traffickers"; that Kenney and Littlejohn asked Informant 2

"numerous questions about the location of the money in the

apartment, the number of people in the apartment . . . the location

of firearms and information about the neighbors"; that Kenney

suggested to Informant 2 that they disguise themselves as federal

agents, alluding to past robberies in which he and his "crew" had

impersonated law enforcement officers; that Kenney told Informant

2 "let's do it [i.e., the robbery], come on"; and that Kenney

assured Informant 2 "I got all the guys you need" and asked if

there were "anymore [sic] jobs [i.e., robberies] to do." Both the

pre-plea and final PSRs drew upon this affidavit, and the

government also cited these conversations in summarizing its

evidence at Kenney's change-of-plea hearing. This information

therefore could hardly have taken Kenney by surprise at his

sentencing. We accordingly find no error, plain or otherwise.

2. Sentencing Factor Manipulation

We have defined sentencing factor manipulation as the

"improper enlarge[ment of] the scope or scale of a crime" by the

government in order "to secure a longer sentence than would

otherwise obtain." West v. United States, 631 F.3d 563, 570 (1st

-27-
Cir. 2011) (quoting United States v. DePierre, 599 F.3d 25, 28-29

(1st Cir. 2010)) (internal quotation marks omitted); see also

United States v. Fontes, 415 F.3d 174, 180 (1st Cir. 2005).10 A

successful claim of sentencing factor manipulation may entitle the

defendant to a sentence below the statutory minimum as an equitable

remedy. West, 631 F.3d at 570; Fontes, 415 F.3d at 180.

The defendant must establish sentencing factor

manipulation by a preponderance of the evidence. West, 631 F.3d at

570. We have consistently acknowledged the onerousness of that

task, describing the threshold as "very high," id. (quoting Fontes,

415 F.3d at 180) (internal quotation marks omitted), and

emphasizing that the claim is available only in "the extreme and

unusual case," involving, e.g., "outrageous or intolerable

pressure" or "illegitimate motive on the part of the agents,"

United States v. Montoya, 62 F.3d 1, 4 (1st Cir. 1995). Put

differently, in order to succeed "the defendant must show that 'the

agents overpowered [his] free will . . . and caused him to commit

a more serious offense than he was predisposed to commit.'" United

10
We have described sentencing factor manipulation as a
"kissing cousin" of the entrapment defense, United States v.
Gibbens, 25 F.3d 28, 30 (1st Cir. 1994), and our precedent uses
interchangeably the terms "sentencing factor manipulation" and
"sentencing entrapment," which other circuits have distinguished.
DePierre, 599 F.3d at 29 n.2 (citing United States v. Garcia, 79
F.3d 74, 75 (7th Cir. 1996); United States v. Jones, 18 F.3d 1145,
1152-53 (4th Cir. 1994)).

-28-
States v. Jaca-Nazario, 521 F.3d 50, 58 (1st Cir. 2008) (quoting

United States v. Barbour, 393 F.3d 82, 86 (1st Cir. 2004)).

The inquiry thus focuses "primarily on the behavior and

motives of the government" in order to determine whether it engaged

in "extraordinary misconduct." Id. However, as the above quote

from Jaca-Nazario suggests, the defendant's predisposition to

commit the charged crimes is also relevant. Although we have

described predisposition as a "secondary consideration," West, 631

F.3d at 570, we have also recognized that "a finding that the

defendant was predisposed to commit the crimes charged may overcome

even a finding of improper motive," Jaca-Nazario, 521 F.3d at 59

n.8 (citing Fontes, 415 F.3d at 181); see also West, 631 F.3d at

571 (holding that defendant's "inability to rebut the government's

evidence of predisposition . . . doomed his assertion of sentencing

factor manipulation").

In rejecting Kenney's sentencing factor manipulation

claim, the district court made no findings as to the propriety of

the government's conduct, stating only, "I heard the tapes. There

is no doubt in my mind that Mr. Kenney was the ringleader, the

mastermind, so to speak, the recruiter, and an enthusiastic

participant in the scheme." On appeal, Kenney contends that the

court erred in relying solely on his predisposition without making

any determination of whether the government had engaged in

"extraordinary misconduct" by upping the ante of the heist from

-29-
$100,000 to $200,000 and five kilograms of cocaine, for which the

government in turn invented a prospective buyer willing to pay up

to $100,000.

Although an accompanying finding as to the government's

conduct might indeed have been preferable, the district court did

not err in rejecting Kenney's sentencing factor manipulation claim.

As we have already stated, our precedent recognizes that a finding

of predisposition, even though a "secondary" factor in the

analysis, may nevertheless trump a finding of improper governmental

conduct. See Jaca-Nazario, 521 F.3d at 59 n.8. Our decision in

Fontes is particularly instructive: although the district court

found improper motives on the part of the government (evinced by

the testimony of an FBI agent who "basically admitted that the

agents were trying to get a higher sentence" by purchasing crack

rather than powder cocaine), we nevertheless upheld its conclusion

that "evidence of [the defendant's] predisposition to sell crack

was . . . devastating to his claim of sentencing factor

manipulation." 415 F.3d at 181, 183 (internal quotation marks and

brackets omitted). More specifically, the evidence of

predisposition demonstrated that "the government, while motivated

at least in part by an improper desire to increase [the

defendant's] sentencing exposure, exerted no undue pressure or

coercion sufficient to 'overbear the will of a person predisposed

only to committing a lesser crime.'" Id. at 183 (quoting United

-30-
States v. Connell, 960 F.2d 191, 196 (1st Cir. 1992)) (internal

brackets omitted). The same conclusion was justified here.11

Nor are we persuaded by Kenney's accompanying argument --

raised for the first time on appeal and therefore subject to plain

error review only -- that the district court's failure to account

for his "weakened mental state" undermined its finding of

predisposition. Although there may well be cases in which a

defendant is left particularly susceptible to governmental

inducement as a result of mental impairment, thereby affecting the

sentencing factor manipulation analysis, Kenney points to no

evidence that his is such a case. The only basis Kenney offers for

this argument is the district court's statement at sentencing that

it would "take into account" the evidence concerning changes in

Kenney's personality. But even if the district court agreed that

Kenney's mental state was relevant to his culpability, that alone

hardly compels the additional inference that Kenney's impairment

11
To the extent Kenney challenges the factual basis for the
district court's finding of predisposition, which we review for
clear error only, Fontes, 415 F.3d at 181, we find that Kenney's
recorded conversations (discussed at greater length in section B.1
supra) amply supported the district court's finding that Kenney was
predisposed to commit the crime. Among other things, Kenney
boasted of his previous participation in robberies; recruited
Arakelow and Littlejohn; asked the ATF informant about the presence
and location of cocaine in the apartment; and agreed to wait until
the arrival of the fictitious cocaine shipment before robbing the
apartment. The district court could certainly infer from this
evidence that Kenney's "actions were not the forced result of
intolerable pressure" and instead reflected his own predisposition.
West, 631 F.3d at 571.

-31-
also rendered him more vulnerable to the sting operation or less

predisposed to the crime. We accordingly find no error, plain or

otherwise.12

III.

For the foregoing reasons, we affirm Kenney's conviction

and sentence.

12
We also reject Kenney's related argument that the district
court abused its discretion in denying his motion to reconsider his
prior requests for CJA funding for a complete psychiatric
evaluation. The district court had already granted Kenney a total
of $6,000 to fund the examination; Kenney offers no rebuttal to the
district court's conclusion that his request for an additional
$6,000 (bringing the total amount to $12,000) was "excessive given
the usual charges for examinations of its type."

-32-