United States v. Ortiz-Vega

United States Court of Appeals
For the First Circuit

No. 14-1693

UNITED STATES OF AMERICA,

Appellee,

v.

ANGEL ORTIZ-VEGA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Domínguez, U.S. District Judge]

Before

Torruella, Thompson, and Kayatta,
Circuit Judges.

Rafael F. Castro Lang for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, were on brief for appellee.

June 21, 2017
 THOMPSON, Circuit Judge. Appellant Angel Ortiz-Vega

("Ortiz") was charged with several counts related to a drug

distribution conspiracy in Puerto Rico. Ortiz was originally

represented by court-appointed counsel, Francisco M. Dolz-Sanchez

("Dolz"), but after seven months retained private counsel, Luis R.

Rivera-Rodriguez ("Rivera"), because, according to Ortiz, Dolz

failed to provide him with effective assistance of counsel

throughout plea negotiations. Ortiz raised his ineffective

assistance claim at several points prior to sentencing, claiming

that Dolz's lack of adequate communication cost him a better plea

deal. The district court declined to rule on Ortiz's ineffective

assistance claim prior to sentencing, finding the motion to be

"premature." Ortiz eventually pled guilty to a higher plea offer

negotiated by his new counsel and was sentenced in accordance with

that agreement.

On appeal, Ortiz argues, inter alia, that the district

court erred by refusing to rule on the merits of his ineffective

assistance claim prior to sentencing. For the reasons discussed

below, we agree with Ortiz and remand the case to the district

court for further proceedings.

Background

In the summer of 2011, Ortiz was charged in a nine-count

superseding indictment along with over a hundred other co-

defendants allegedly involved in a large-scale drug conspiracy.

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For his role, Ortiz was charged with conspiracy to possess with

intent to distribute various controlled substances including

heroin, cocaine, marijuana, Percocet, and Xanax, as well as the

actual possession of those substances with intent to distribute

them, within a thousand feet of a public school in violation of

21 U.S.C. §§ 841, 846, and 860 (Counts I-IV). Ortiz was also

charged with aiding and abetting others in the use or possession

of firearms during the drug offenses in violation of 18 U.S.C.

§ 924(c) and 2 (Count V).

On August 6, 2012, Ortiz ultimately entered into a non-

binding plea agreement with the government, pursuant to Federal

Rule of Criminal Procedure 11(c)(1)(B), in which he agreed to plead

guilty to the conspiracy and firearms charges (Counts I and V)

with an applicable United States Sentencing Guidelines

("Guidelines") range of 168-180 months on both counts. See United

States v. Torres-Oliveras, 583 F.3d 37, 41 (1st Cir. 2009)

(discussing the difference between non-binding Type B and binding

Type C plea agreements). The journey to reach this point of

agreement had proven long and contentious, with Ortiz switching

counsel and his previous (court-appointed) counsel, his current

(privately-retained) counsel, and the government each making

conflicting assertions as to the facts surrounding Ortiz's plea

negotiations. We necessarily discuss the facts surrounding

Ortiz's plea negotiations, since they form the basis of his present

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appeal and assertion that the district court erred in failing to

rule on his ineffective assistance claim prior to sentencing.

1. Plea Negotiations

Ortiz was arrested on the drugs and firearm charges

described above in late June 2011. At that time, Dolz was

appointed as his attorney. Dolz asserts that he first met with

Ortiz in July 2011 to discuss the charges lodged against Ortiz and

to conduct a full client interview. On January 24, 2012, six

months after his arrest, Ortiz filed a pro se "Motion for Lawyer

Dismissal" in which he requested that Dolz be "released from his

position on [sic] [Ortiz's] case" because, according to Ortiz,

Dolz had "acted in a [sic] unreasonable way" and had not

communicated with him since he had been imprisoned. The court did

not respond to Ortiz's pro se motion until six months after it was

filed (after Ortiz had replaced Dolz with a privately-retained

attorney), and the court ultimately dismissed Ortiz's pro se motion

as moot given his retention of new counsel. The parties dispute

how often Dolz communicated with Ortiz and the substance of their

communications during plea negotiations.

According to Dolz, after Ortiz filed his pro se motion,

Dolz reached out to the government via email to discuss a possible

plea offer.1 Dolz asserts that he then visited Ortiz on March 6,

1
Dolz also states that there was an initial "verbal" plea
offer that no one took seriously. Dolz claims that the government

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2012 -- some eight months after first interviewing Ortiz -- to

further discuss Ortiz's case. Dolz claims that at this meeting

Ortiz stated that he would only accept a plea offer of eighty-four

months (or seven years) for both counts.

On March 19, 2012, the government offered Ortiz a plea

deal well above seven years, with a Guidelines range of 130-147

months (or between a little over ten and a little over twelve

years) on both counts. Dolz claims that he visited Ortiz again on

April 7, 2012 to communicate the 130-147 month plea offer.

According to Dolz, he advised Ortiz to take the offer, but Ortiz

rejected it and reiterated that he would only accept a plea deal

of seven years on both counts, or that he would go to trial. Dolz

claims that as soon as he exited the prison after meeting with

Ortiz, Ortiz's wife called and informed him that Ortiz no longer

wanted to present a counteroffer of seven years to the government

as they had just discussed, but instead wanted to present a

counteroffer of sixty months on the conspiracy charge (Count I)

and wanted the firearms charge (Count V) to be dismissed

altogether.

had initially offered Otiz a verbal plea deal for 240 months
sometime in August or September of 2011. Dolz claimed that
although the government had tendered this verbal offer, neither of
them took the offer seriously. Dolz states that he informed Ortiz
of this verbal offer, but the record does not specify when Dolz
communicated this offer or Ortiz's response to it.

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 Accordingly, on April 12, 2012, Dolz emailed the

government Ortiz's counteroffer of sixty months. The government

responded to Dolz's email with a one-liner: "Rejected. See you in

trial then?" The record is ambiguous as to whether Dolz ever

responded to this rejection of Ortiz's counteroffer, but it does

indicate that Dolz may not have communicated with Ortiz again

regarding plea negotiations until after Ortiz had retained new

counsel three months later in July 2012.

Dolz asserts that at some point after Rivera had been

retained (on July 24, 2012), but presumably prior to Dolz's last

meeting with Ortiz on the following day (July 25, 2012), he

communicated with the government via email to see if the 130-147

month offer was still on the table. Dolz claims that the

government informed him that the original offer had expired and

that the new offer was 180 months, which the government had also

communicated to Rivera. Dolz also indicated that the government

was mistaken in its statement that the original offer had expired

and claimed that he believed that the original offer of 130-147

months had not expired and would not expire until July 31, 2012 -

- the date set by the court for any change of plea.

On July 25, 2012, the day after Rivera filed his

appearance in the case, Dolz claims that he visited and informed

Ortiz that "there was a plea offer outstanding and that July 31,

2012 was the deadline for the [change of plea] motion." It is

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unclear from the record whether the "outstanding plea offer"

referenced by Dolz was the new 180 month offer or the previous

130-147 month offer which Dolz apparently believed had an

expiration date of July 31, 2012.2 Dolz also asserts that at this

final July meeting, he informed Ortiz that his previous

counteroffer of sixty months had been rejected and that there was

nothing else Dolz could do since Ortiz had retained Rivera to

handle his case. Despite Ortiz retaining new counsel, Dolz

contends that the government continued to communicate with him

concerning Ortiz's case and that on July 31, 2012 the government

sent him a new plea offer of 168-180 months that was slated to

expire on August 1, 2012.

The government mostly agrees with Dolz's account of plea

negotiations, but also states that after rejecting Ortiz's

counteroffer of sixty months, it understood that the original 130-

147 month offer had been rescinded.

2
It is unclear at what point Dolz was made aware of the 180
month offer and if he communicated that offer to Ortiz. On the
one hand, Dolz claims that the government informed him that the
130-147 month plea offer had expired and that the new plea offer
was 180 months prior to his meeting with Ortiz on July 25, 2012.
On the other hand, Dolz claims that he was unaware of the new 168-
180 month offer until July 31, 2012 when the government emailed
him a new plea agreement. Dolz also indicated that he believed
that it was Rivera who permitted the original 130-147 month offer
to expire because Dolz believed that the original offer did not
expire until July 31, 2012 -- after Rivera had been retained. It
is therefore also unclear what "outstanding offer" Dolz
communicated to Ortiz on his visit on July 25, 2012 (180 months or
130-147 months).

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 As expected Ortiz has a very different view of what

occurred during plea negotiations. According to Ortiz, Dolz only

visited him twice: once on April 7, 2012 to communicate the

original 130-147 month plea offer and again after Ortiz had

retained Rivera as his new counsel.3 Ortiz claims that Dolz failed

to keep him updated concerning plea negotiations and failed to

communicate with him after the government rejected his

counteroffer. In response to Ortiz's assertions, at a hearing

before the district court, Dolz said that he "saw [Ortiz] as [he]

need[ed] to see him" and that Ortiz was given the information

needed regarding his case despite his assertion that Dolz only

visited him twice. At another hearing, Ortiz countered that he

never communicated to Dolz that he would rather go to trial, and

that he always wanted to plead guilty, but that he was looking for

the best deal. Of course, Dolz denied these contentions.

2. Plea Agreement

Regardless of the back and forth alleged by Ortiz and

Dolz concerning plea negotiations, Ortiz did finally enter into a

plea agreement with the government that was negotiated by his new

counsel Rivera. According to Rivera, by the time he got involved

3 Ortiz cites the jail visitation log record to support his
claim that Dolz only visited him twice. According to those
records, Dolz visited Ortiz on April 7, 2012 and again after Rivera
had been retained. As discussed above, Dolz argues that he did
not always sign the visitation log when he visited Ortiz and that
there were more than two visits that had not been recorded.

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with the case, the government refused to offer Ortiz the original

plea offer of 130-147 months, claiming that its initial offer had

expired. Ortiz alleges that he was faced with the choice of a

higher plea deal or trial -- stuck between Scylla and Charybdis,

he ultimately chose to take the higher plea deal.

Under the terms of the plea agreement, Ortiz's total

offense level as to Count I was calculated with a base offense

level of thirty (for possession of at least 3.5 but less than five

kilograms of cocaine pursuant to U.S. Sentencing Guidelines Manual

("USSG") § 2D1.1(c)(5) (U.S. Sentencing Comm'n 2012); plus two

levels for his role as a manager or supervisor pursuant to USSG

§ 3B1.1(c); plus two levels for the possession of drugs near a

public school pursuant to USSG § 2D1.2(a)(1); minus three levels

for acceptance of responsibility pursuant to USSG § 3E1.1(a)-(b).

With a resulting total offense level of thirty-one on Count I, the

applicable Guidelines range was 108-135 months, assuming a

criminal history category of I.4

The parties agreed that a consecutive term of sixty

months' imprisonment was applicable to Count V and ultimately

agreed to a total Guidelines range of 168-180 months on both

counts,5 with the government reserving the right to request a

4 The parties did not stipulate to the applicable criminal
history category.
5We note that in calculating the total recommended Guidelines
range the parties agreed to a range of 168-180 months on both

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sentence at the high end of the Guidelines range and Ortiz

reserving the right to request a sentence at the low end of the

Guidelines range.6 The government agreed to dismiss all remaining

counts against Ortiz and the plea agreement also contained a

waiver-of-appeals clause that barred Ortiz from appealing his

sentence if sentenced in accordance with the terms of the

agreement. Ortiz's change of plea hearing was held on August 6,

2012 (the same day that he signed the plea agreement).7

counts; however, when we tally the independently calculated
Guidelines ranges provided for each individual count in the plea
agreement (108-135 months on Count I and sixty months on Count V),
we would expect the total agreed-upon sentence to be between 168-
195 months -- fifteen months greater than the total actually agreed
to by the parties.
6 The plea agreement has several errors that were not
corrected before signing. For instance, it is clear that in the
original draft of the plea agreement, the government sought to
hold Ortiz responsible for at least two kilograms, but not more
than 3.5 kilograms, of cocaine. However, the parties edited the
plea agreement by hand to hold Ortiz responsible for at least 3.5
kilograms, but less than five kilograms of cocaine. The correlated
references to the Sentencing Guidelines were not corrected (i.e.,
instead of a reference to USSG § 2D1.1(c)(6), the proper section
utilized to arrive at a base offense level of 30 was USSG §
2D1.1(c)(5)). Although we note the discrepancies, these
typographical errors are of no consequence to our analysis here.
7 As noted above, on appeal, Ortiz does not challenge the plea
agreement entered nor does he seek to withdraw his guilty plea.
He instead argues that the district court erred in failing to
address the merits of his ineffective assistance claim prior to
sentencing.

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 3. Sentencing

After pleading guilty, and before sentencing, Ortiz

filed a pro se letter with the district court on November 8, 2012,

again complaining about Dolz's representation during plea

negotiations. In the letter, Ortiz did not request any specific

relief beyond a "just sentence," but he again argued that Dolz

visited him only once during plea negotiations and that Dolz never

communicated with him further after that one meeting. Ortiz

claimed that Dolz "neither advised [him] or represented [him] well"

and that "[Dolz] completely abandoned [him]." In April 2013,

Rivera filed a sentencing memorandum on Ortiz's behalf,

highlighting Ortiz's complaints from the November letter about

Dolz's representation and asserting Ortiz's ineffective assistance

claim. In that memorandum, Rivera argued that Ortiz should be

sentenced in accordance with the original plea offer of 130-147

months.

In a hearing on April 8, 2013 (at which Dolz was not

present), Rivera discussed Ortiz's ineffective assistance claim

and indicated to the court that he wanted to renegotiate the plea

deal. The government responded that it would not renegotiate the

plea deal. Rivera also argued that at the time Ortiz's family

contacted him to represent Ortiz, Dolz "had not gone over to

discuss with [Ortiz] either the discovery nor [sic] a possible

plea." The court scheduled another hearing (in fact, numerous

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hearings followed over the next 13 months to discuss Ortiz's

ineffective assistance claim) and instructed Dolz to be present.

The court noted that "the best thing to do is to allow Mr. Dolz to

answer [Ortiz's ineffective assistance claim], and then the Court

will make a determination." Accordingly, Dolz eventually answered

Ortiz's claim, filing a written response to Ortiz's sentencing

memorandum prior to sentencing. Rivera sought access to Dolz's

case files concerning Ortiz's plea negotiations, which both Dolz

and the government were ordered to (and presumably did eventually)

produce.

On April 21, 2014 a hearing took place, with Dolz

present, and Rivera sought to call him to the stand. Dolz

responded that he was "not in a position to testify" and that he

had a conflict.8 After listening to the numerous contentions made

by the parties concerning how often Dolz visited Ortiz, whether or

not Ortiz was seeking to withdraw his guilty plea, and other issues

surrounding Ortiz's claim, the district court rescheduled the

8 Dolz specifically stated:
I am not in a position to testify, to appear.
I could argue, I could present evidence, I
could find documents, but I am in no condition
whatsoever. This is taking time. It is going
to take more time. I am still yet under
certain jurisdictions. This is not that.
. . .
I am impeded. I have a conflict, if I take
the stand.

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matter again, this time explicitly "put[ting] the case [down] for

a two-day [evidentiary] hearing." Dolz was ordered to be present

with counsel.

On May 21, 2014, before the evidentiary hearing

scheduled for that date got underway, Rivera filed a supplemental

memorandum further detailing Ortiz's ineffective assistance claim.

When it was his turn to address the court, Rivera repeatedly stated

that Ortiz was not seeking to withdraw his guilty plea, but that

he wanted the judge to consider Ortiz's ineffective assistance

claim in order to sentence him according to the terms of the

original plea offer of 130-147 months. The district court, after

listening to arguments from both sides, ultimately ruled that "to

the extent that this may be a camouflaged motion to withdraw a

plea, the Court denies the request because the timing is not

proper. [Ortiz] is not alleging that he's innocent, and to that

effect, if it is a motion to withdraw the plea, it is denied."

The district court held further that "to the extent that [Ortiz's

memorandum on ineffective assistance] is a 2255, it is premature."

At sentencing, held that very same day, Rivera also

argued that the district court should sentence Ortiz at the lower

end of the applicable Guidelines range because similarly-situated

co-defendants had received sentences of nine, ten, or eleven years.

Ultimately, the district court declined to rule on the merits of

Ortiz's ineffective assistance claim, rejected his sentencing

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disparity arguments, and sentenced him in accordance with the plea

agreement to a total of 174 months or 14.5 years (near the top of

the applicable Guidelines range).

After filing the instant appeal, Ortiz filed a motion to

reduce his sentence before the district court pursuant to 18 U.S.C.

§ 3582(c)(2), which was granted on December 30, 2015, during the

pendency of this appeal.

Analysis

On appeal, Ortiz primarily argues that the district

court erred in: (1) failing to address the merits of his

ineffective assistance claim prior to sentencing; and (2) failing

to adequately address his sentencing disparity arguments.9 Because

we ultimately remand to the district court to conduct whatever

proceedings are necessary to rule on Ortiz's ineffective

assistance claim (for reasons discussed in more detail below), we

decline to delve into the merits of his sentencing disparity

argument at this time.

9
Ortiz also argues that the district court erred in ruling
on his motion for a reduction of sentence prematurely. Both
parties agree that the district court lacked jurisdiction to rule
on the motion while this appeal was pending. See United States v.
Cardoza, 790 F.3d 247, 248 (1st Cir. 2015) ("[A] district court
does not have jurisdiction to enter a sentence modification order
under § 3582(c)(2) while an appeal of that sentence is pending").
We, therefore, vacate the district court's ruling on the sentence
reduction and remand this issue "so that the district court, once
its jurisdiction has reattached, may consider reducing [Ortiz's]
sentence." United States v. Rodríguez-Milián, 820 F.3d 26, 36
(1st Cir.), cert. denied, 137 S. Ct. 138 (2016).

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 1. Waiver

As a threshold matter, we must determine whether Ortiz's

claims are barred by the waiver-of-appeals clause found in his

plea agreement. Ortiz concedes that he entered into his plea

agreement knowingly and voluntarily. However, he argues that the

waiver-of-appeals clause should not be enforced because to do so

would work a miscarriage of justice in that his plea negotiations

were tainted by ineffective assistance of counsel. The government

says the waiver-of-appeals clause is enforceable because Ortiz's

ineffective assistance claim results in no miscarriage of justice

since he "may present his claim through a 2255 motion" and is

therefore not prejudiced by the court's finding that his claim was

premature.10

This court has recognized that "if denying a right of

appeal would work a miscarriage of justice, the appellate court,

in its sound discretion, may refuse to honor the waiver." United

States v. Teeter, 257 F.3d 14, 25 (1st Cir. 2001).

In determining whether a miscarriage of justice would

result, we consider, among other factors, "the clarity of the

alleged error, its character and gravity, its impact on the

defendant, any possible prejudice to the government, and the extent

10 The government also argues that Ortiz's sentencing
disparity claim is barred by the waiver-of-appeals clause because
he knowingly and voluntarily entered into a valid plea agreement.

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to which the defendant acquiesced in the result." United States

v. Pratt, 533 F.3d 34, 37 (1st Cir. 2008) (quoting United States

v. Cardona-Díaz, 524 F.3d 20, 23 (1st Cir. 2008)). We have noted

that the miscarriage-of-justice exception has been applied

"sparingly and without undue generosity" and is therefore reserved

for egregious circumstances. United States v. De-La-Cruz Castro,

299 F.3d 5, 13 (1st Cir. 2002) (quoting Teeter, 257 F.3d at 26).

Nevertheless, in Teeter, we listed, inter alia, certain categories

of cases which may fall within the miscarriage-of-justice

exception, specifically recognizing "situations in which

appellants claim that their sentences were based on

constitutionally impermissible factors (say, race or

ethnicity) . . . or that the plea proceedings were tainted by

ineffective assistance of counsel." Teeter, 257 F.3d at 25 n.9

(internal citations omitted).

Applying those principles, we first note the unique

posture of Ortiz's argument: Ortiz is not alleging that the

attorney who negotiated the plea deal that Ortiz actually entered

into (Rivera) provided ineffective assistance, but that his prior

attorney (Dolz) was ineffective in adequately communicating with

him regarding plea negotiations. That below-par performance, says

Ortiz, cost him a better plea deal because it was off the table by

the time his new counsel took over his case. Ortiz, in several

pro se filings and through memoranda filed by his second attorney,

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attempted to have the district court consider the detrimental

impact of his first attorney's alleged deficient performance on

the posture of his plea negotiations and resolve the ineffective

assistance claim prior to sentencing. However, the district court

refused to rule on his claim, finding it premature. Because it is

clear that the district court seemingly misunderstood its

authority to promptly decide Ortiz's Sixth Amendment claim that

is, at least on its face, plausible because Ortiz raised his

complaint about counsel's inadequate attention before signing the

plea agreement, and because the terms of the plea agreement are

themselves arguably a product of a Sixth Amendment violation, we

believe that Ortiz's waiver falls into that narrow category of

cases we described in Teeter where enforcement would work a

miscarriage of justice. Therefore, we exercise our discretion not

to enforce the waiver here. See United States v. Del Valle-Cruz,

785 F.3d 48, 57 (1st Cir. 2015) (refusing to enforce a waiver where

the error was of a "constitutional dimension"). We proceed to the

merits of Ortiz's appeal.

2. Ineffective Assistance

It is well-established that a defendant is entitled to

the Sixth Amendment right to effective assistance of counsel during

plea negotiations. United States v. Márquez-Pérez, 835 F.3d 153,

165 (1st Cir. 2016). And "[w]e assess a claim of ineffectiveness

in plea negotiations under the two-part test of Strickland v.

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Washington, 466 U.S. 668 (1984), under which a defendant must show

deficient performance and prejudice." Id. Deficient performance

is measured against an "objective standard of reasonableness" and

"[p]rejudice exists if there is a 'reasonable probability that,

but for counsel's unprofessional errors, the result of the

proceeding would have been different.'" Id. (quoting Strickland,

466 U.S. at 688).

"When we receive ineffective assistance of counsel

claims on direct appeal, we have three options:" (1), and most

commonly, we can decline to hear such claims, allowing the

appellant to raise the claim before the district court by means of

a 28 U.S.C. § 2255 collateral attack; (2) in more rare instances

we can rule on the merits of the claim on direct appeal where the

facts are sufficiently developed; or (3) where "the record [] is

not developed enough to decide the ineffective assistance of

counsel claim on the merits, yet it does contain sufficient indicia

of ineffectiveness in the plea agreements, the PSR, and the

transcripts of the change of plea and sentencing hearings," we may

remand the case for proceedings on the ineffective assistance claim

without requiring the defendant to bring a separate collateral

attack. United States v. Colón-Torres, 382 F.3d 76, 84-85 (1st

Cir. 2004).

And while we have not previously ruled on the precise

issue presented here (whether a district court should rule on an

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ineffective assistance claim prior to sentencing and if so, under

what circumstances), as noted by Ortiz, we have indicated in the

context of claims involving attorney-client disputes that "[w]here

the accused voices objections to appointed counsel, the trial court

should inquire into the reasons for the dissatisfaction." United

States v. Prochilo, 187 F.3d 221, 229 (1st Cir. 1999) (quoting

United States v. Allen, 789 F.2d 90, 92 (1st Cir. 1986)). The

failure to conduct such an inquiry constitutes an abuse of

discretion. Id. at 229 ("In the case at bar the trial court, in

an abuse of its discretion, denied the motions for continuance and

for reconsideration without making inquiry into the accused's

concerns . . . . Because no inquiry was made, this court has no

basis in the record for sustaining the trial court's rulings.

Accordingly, we are constrained by the Sixth Amendment to direct

that Prochilo's conviction be set aside and that this case be

remanded to the district court for further proceedings.").

We have similarly held, within the context of alleged

conflict of interest situations, "that the district court must

inquire into each instance of joint representation of multiple

defendants, and must advise each defendant of his right to separate

counsel." United States v. Coneo-Guerrero, 148 F.3d 44, 47 (1st

Cir. 1998). We therefore require trial courts to "inquire

diligently whether [defendants] have discussed the risks with

their attorney, and whether they understand that they may retain

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separate counsel, or if qualified, may have such counsel appointed

by the court and paid for by the government." United States v.

Foster, 469 F.2d 1, 5 (1st Cir. 1972); see also United States v.

Cardona-Vicenty, 842 F.3d 766, 772 (1st Cir. 2016), cert. denied,

137 S. Ct. 1238 (2017) ("[G]iven the 'ubiquitous and insidious'

risks of multiple representation, the Sixth Amendment imposes a

duty on trial courts to investigate a defendant's timely objections

to joint representation and to inquire into the propriety of

multiple representation whenever the trial court 'knows or

reasonably should know that a particular conflict exists.'"

(quoting United States v. Hernandez-Lebron, 23 F.3d 600, 603-04

(1st Cir. 1994))). Accordingly, the importance of a district

court's inquiry into attorney-client disputes and conflicts of

interest is well established.

Two of our sister circuits have ruled on the precise

issue presented here. See United States v. Steele, 733 F.3d 894,

897 (9th Cir. 2013); United States v. Brown, 623 F.3d 104, 112-14

(2d Cir. 2010). In Brown, the Second Circuit held that the

district court should have ruled on an ineffective assistance claim

prior to sentencing where the defendant's first counsel (who had

been accused of ineffective assistance) had already been relieved

and the defendant was asserting that his previous counsel failed

to inform him of a 20-year plea offer. 623 F.3d at 112-14 ("As a

matter of first impression, we hold that when a claim of

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ineffective assistance of counsel is first raised in the district

court prior to the judgment of conviction, the district court may,

and at times should, consider the claim at that point in the

proceeding" and there was "no good reason to postpone inquiry into

the merits of [the defendant's] claim.").

The Second Circuit recognized that while the appellate

court typically does not hear ineffective assistance claims on

direct appeal (unless the record is sufficiently developed), a

trial court need not invoke the "appellate court's rubric and

require a defendant to use his one § 2255 motion to raise an

ineffective assistance claim post-judgment, particularly when the

district court is in a position to take evidence, if required, and

to decide the issue pre-judgment." Id. at 113.

The Ninth Circuit has since adopted the Second Circuit's

holding, "adopt[ing] the rule in Brown that 'when a claim of

ineffective assistance of counsel is first raised in the district

court prior to the judgment of conviction, the district court may,

and at times should, consider the claim at that point in the

proceeding.'" Steele, 733 F.3d at 897 (quoting Brown, 623 F.3d at

113) ("Though district courts have heard prejudgment ineffective

assistance of counsel claims on occasion, see, e.g., United States

v. Del Muro, 87 F.3d 1078, 1080 (9th Cir. 1996), we have not

previously articulated the standard a district court should apply

to decide whether to rule on such a claim. We agree with the

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Second Circuit's decision in United States v. Brown, that a

district court need not 'invoke an appellate court's rubric and

require a defendant to use his one § 2255 motion to raise an

ineffective assistance claim post judgment, particularly when the

district court is in a position to take evidence, if required, and

to decide the issue prejudgment.'" (quoting Brown, 623 F.3d at

113)). Nevertheless, in Steele, the Ninth Circuit affirmed the

district court's decision to reserve ruling on a defendant's

ineffective assistance claim until after the initiation of

collateral proceedings because of "the lack of a significant record

necessary to adequately consider [the defendant's] broad-based

motion" and the court's consideration of "delaying the trial

proceedings to conduct an immediate hearing on an under-developed

motion." Steele, 733 F.3d at 899.

We agree with our sister circuits and similarly hold

that "when a claim of ineffective assistance of counsel is first

raised in the district court prior to the judgment of conviction,

the district court may, and at times should, consider the claim at

that point in the proceeding." Brown, 623 F.3d at 113. And the

court's failure to do so may constitute an abuse of discretion.

See id. at 112 ("The government argues unconvincingly that given

the Supreme Court's and this Court's general aversion to deciding

ineffective assistance claims on direct review, 'the district

court's refusal to entertain [the defendant's] motion before he

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was sentenced cannot be deemed an abuse of discretion.' We

disagree.").

As noted by the Second Circuit, "[w]e are mindful that

district courts face competing considerations in deciding whether

it is appropriate to inquire into the merits of such claims prior

to judgment, including principally the potential disruption of the

proceedings, especially if the attorney against whom the complaint

is directed continues at the time to represent the defendant."

Id. at 113. We similarly observe that "[t]he decision to interrupt

the pre-judgment proceedings to inquire into the merits of an

ineffective assistance of counsel claim may depend on, among other

things, whether the court would need to relieve the defendant's

attorney, or in any event, to appoint new counsel in order to

properly adjudicate the merits of the claim." Id. The court may

also take into consideration whether the defendant's "claim [is]

broad-based and the evidentiary record to consider it [is] sorely

lacking," as well as "whether the interests of justice and judicial

economy would be served by delaying the trial proceedings to

conduct an immediate hearing on an under-developed motion."

Steele, 733 F.3d 898-99.

Having outlined the proper standards applicable, we now

turn to the particular facts of Ortiz's case. Ortiz argues that

his first counsel was ineffective in failing to timely communicate

that his counteroffer had been rejected, that the original plea

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offer had expired, and by failing to adequately communicate

concerning plea negotiations whatsoever after Ortiz made an

initial counteroffer.

As we detailed earlier, Ortiz raised his concerns at

multiple points in the proceeding, providing the district court

with several opportunities to address Ortiz's ineffective

assistance claim. Based upon the facts of this case, we conclude

that the district court had "no good reason to postpone inquiry

into the merits of [Ortiz's] claim" and thus abused its discretion

in doing so. Brown, 623 F.3d at 113.

Like Brown, the only proceeding that would have been

postponed or interrupted by an inquiry into the alleged

ineffectiveness during plea negotiations would have been

sentencing and the attorney against whom the complaint was directed

(Dolz) had already been relieved of his duties since July 2012.

Furthermore, the court had already scheduled and heard detailed

arguments on the issue, rescheduling several sentencing hearings

as needed. Additionally, unlike Steele, the record was

significantly developed by the time of sentencing, especially

since the district court had heard from both sides and had required

both Dolz and the government to turn over their case files

detailing the facts surrounding plea negotiations.11 Consequently,

11
We note that when Rivera attempted to call Dolz as a witness
during one of the hearings, Dolz refused to take the stand,

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the district court was well-positioned to decide the merits of

Ortiz's claim without a sacrifice to judicial economy.

In addition to these procedural considerations, there

were also several factors indicating the facial plausibility of

Ortiz's ineffective assistance claim including: the parties'

dispute regarding how often Dolz communicated with Ortiz and the

nature of those communications; the lack of clarity around when

the original 130-147 month offer expired; Ortiz's consistent

statements that he always desired to accept a plea and was only in

search of the best deal; and Ortiz's assertion that Dolz never

fully explained the nature of the offenses lodged against him

during the course of negotiations.12

As the Supreme Court has noted, the "plea-bargaining

process is often in flux, with no clear standards or timelines and

with no judicial supervision of the discussions between

prosecution and defense." Missouri v. Frye, 566 U.S. 133, 143

(2012). Yet, "[n]inety-seven percent of federal convictions and

ninety-four percent of state convictions are the result of guilty

pleas." Id. With such wide-sweeping impact despite the existence

claiming he had a conflict, presumably with Ortiz. We are puzzled
as to how such a conflict would excuse him from testifying in this
circumstance.
12
We also note that the record indicates that Dolz was ill
at some point during his representation of Ortiz and was "out of
commission" for at least ninety days.

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of ambiguity around the standards to be maintained in the plea-

bargaining process, it may be imperative for a district court, at

times, to rule on a claim of ineffective assistance prior to the

defendant seeking post-conviction relief. Such is true here. If

Dolz were found to have provided ineffective assistance in his

failure to communicate with Ortiz during plea negotiations, the

district court would be required to place Ortiz in the position he

would have been had Dolz been effective. See Brown, 623 F.3d at

114 ("[I]f counsel is determined to have been ineffective, equities

require that the defendant be put in the same place he would have

been but for counsel's ineffective assistance."). In other words,

if the district court had determined that counsel's

ineffectiveness caused Ortiz to be unaware of a plea offer that he

would have accepted had he a chance to do so, then the district

court should have given Ortiz that chance. On the other hand, if

the court had determined that Dolz was not ineffective (as a

reminder, to establish ineffective assistance Ortiz must

demonstrate both deficient performance and that he was prejudiced

by that performance), then Ortiz would have been stuck with the

plea agreement he actually entered into.

Conclusion

Having determined that the district court abused its

discretion in failing to rule on the merits of Ortiz's ineffective

assistance claim prior to sentencing, we remand for further

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proceedings consistent with this decision and retain jurisdiction

over any remaining claims.13

13 Because we remand for further proceedings, we need not
decide now Ortiz's sentencing disparity claim. See United States
v. González-Vélez, 466 F.3d 27, 38 (1st Cir. 2006) (declining to
rule on the merits of an appellant's other sentencing claims after
remanding on the basis of one of his claims).

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