United States v. Lopez-Pastrana

United States Court of Appeals
For the First Circuit

No. 15-1894

UNITED STATES OF AMERICA,

Appellee,

v.

JOSE LUIS LOPEZ-PASTRANA,

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, Lipez, and Barron,
Circuit Judges.

Miriam Ramos-Grateroles for appellant.
Michael A. Rotker, Attorney, U.S. Department of Justice, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, John P.
Cronan, Acting Assistant Attorney General, Criminal Division, and
Normary Figueroa-Ruiz, Assistant United States Attorney, were on
brief, for appellee.

May 4, 2018
 LIPEZ, Circuit Judge. Appellant Jose Luis Lopez-

Pastrana, who was sentenced on drug and firearms charges pursuant

to a plea agreement, claims that the district court erred by

ordering a twelve-month term of home detention on the drug count

to be served after his mandatory minimum five-year term of

imprisonment on the firearms count. We agree that the home-

detention condition was imposed improperly and, accordingly,

remand the case for resentencing. We do not reach appellant's

pro se appellate claims, as they are either waived or not properly

before us.

I.

Lopez-Pastrana was charged in a four-count indictment

with two drug crimes and two weapons crimes. He entered into a

plea agreement in which he agreed to plead guilty to Count III,

possession with intent to distribute marijuana, and Count IV,

possession of a firearm in furtherance of a drug trafficking crime,

in exchange for dismissal of the remaining two counts. The plea

agreement set forth the parties' non-binding recommendation that

the court impose a sentence at the lower end of the Guidelines

range of zero to six months' imprisonment for Count III, and a

sixty-month sentence (the mandatory minimum) for Count IV. As

part of the agreement, Lopez-Pastrana waived the right to appeal

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the judgment and sentence if the sentence imposed was consistent

with the parties' recommendation.1

At the outset of the sentencing hearing in July 2015,

the district court commented on the portion of Lopez-Pastrana's

sentencing memorandum stating that he has a severe pulmonary

illness and a limited life expectancy. Defense counsel reaffirmed

the memorandum's assertion that Lopez-Pastrana, who was fifty-nine

at the time of sentencing, had a twenty percent chance of surviving

the next four years. The government responded that Lopez-

Pastrana's health had improved during the roughly four months that

he had been incarcerated. The prosecutor reported that the medical

director of the correctional facility where appellant was housed

had concluded that "his medical condition is not an end-stage

disease."

Noting the undisputed fact that Lopez-Pastrana faced a

sixty-month mandatory sentence on the firearms count, defense

counsel explained that he had brought up appellant's limited life

span for two reasons. First, counsel asked the court to recommend

that Lopez-Pastrana serve his time in a prison medical facility.

Second, counsel urged the court to support any recommendation made

1The "Waiver of Appeal" provision states, in full: "The
defendant knowingly and voluntarily waives the right to appeal the
judgment and sentence in this case, provided that the defendant is
sentenced in accordance with the terms and conditions set forth in
the Sentence Recommendation provisions of this Plea Agreement."

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by the Bureau of Prisons for compassionate release based on

appellant's health. See infra note 7 (discussing 18 U.S.C.

§ 3582(c)(1)(A)). The court acknowledged the requests, assuring

counsel he would order appellant's placement in a clinical

facility, and continued with the sentencing process.

For Count III, the drug offense, the court calculated

the Sentencing Guidelines punishment to be imprisonment from zero

to six months, a fine of $250 to $5,000, and a two-year term of

supervised release.2 For Count IV, the firearms offense, the court

observed that the Guidelines sentence is the statutory minimum --

sixty months -- to be followed by a supervised release period of

two to five years. After noting that it had considered the

sentencing factors prescribed by 18 U.S.C. § 3553 -- including,

"above all," Lopez-Pastrana's medical condition -- the court

announced, as to Count III, that it would "perform . . . a variance

as to him and . . . sentence him for the drug at zero months." On

Count IV, the court explained that it was imposing the statutory

minimum "due to his medical history." The court specified that,

as required by statute, "[b]oth sentences shall be served

consecutively to each other for a total of 60 months of

imprisonment."

2In fact, by statute, the term of supervised release for
Count III was "at least 2 years," assuming the sentence also
included a term of imprisonment. See 21 U.S.C. § 841(b)(1)(D).

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 The court also imposed a two-year term of supervised

release on Count III and a five-year term of supervised release on

Count IV, to be served concurrently. It then announced the

conditions of release, including a twelve-month period of home

confinement that would be monitored with an electronic device.

The court declined to impose fines, but ordered the mandatory

monetary assessment of $100 on each count.

After pronouncing the sentence and terms of release, the

court noted that Lopez-Pastrana's waiver of his right to appeal

was triggered "because this Court has sentenced the defendant below

what he agreed -- not what he agreed, but below what he agreed."

The court concluded its pronouncements by directing that Lopez-

Pastrana "be placed in a clinical medical facility, a hospital-

type facility, due to his Chronic Obstructive Pulmonary Disease"

and instructing the Bureau of Prisons to ensure a medical

evaluation and "proper medication for the pulmonary obstructive

emphysema disease."

The government then moved to dismiss the other two counts

and -- "just to clarify the record" -- pointed out that the zero

months' sentence was not a variance, but fell at the lower end of

the applicable guidelines range. The court accepted the correction

and invited defense counsel to raise any objections to the

conditions of supervised release.

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 At that point, a colloquy ensued between the court and

defense counsel concerning the twelve-month period of home

detention. Counsel objected to the substantial restraint that the

monitoring device would pose for his seriously ill client after

his release from prison, pointing out that appellant's activities

would in any event be limited for five years by the requirements

of supervised release. For its part, the court observed that it

had anticipated that Lopez-Pastrana might "applaud this condition"

because he would be able to obtain medical treatment at the

government's expense during the home detention.

The exchange between court and counsel included the

following:

COURT: [T]his is what I thought would be a
negotiation to going to zero [months]. . . .
So you are saying that most probably he
will not live this sentence. Fine.

. . . .

[T]his is the reason why the Court gave him no
sentence as to a drug conviction. Zero. But
I thought that if he lived, that he should be
in his house in home detention, as an
alternate sentence to the zero. There are
many defendants that would break my arm for
that.

DEFENSE COUNSEL: I understand, Your Honor.

COURT: You know, it's easier to serve it in
your house with all the monitoring medical
equipment that is going to be placed in there.
That's what I thought.

. . . .

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COURT: . . . I want to know your last position
relating to this, to this 12 months home
detention.

DEFENSE COUNSEL: Well, Your Honor, you're
going to have a person that is going to be
very ill. And --

COURT: This is a person that is very ill who
is going to be subsidized by the federal
government for one extra year. That's what it
is. If he's really very ill, . . . this is
[a] medical condition in your house paid by
the U.S. Government.

DEFENSE COUNSEL: I'd take it then, Your Honor.

COURT: All right. That's what I'm giving him.
Because that's what it is.

DEFENSE COUNSEL: We'll take it. We'll take
it.

COURT: All right. Who knows? Somebody else
picks this up and wants to challenge it.
But anyway, I've expressed on the record
what I have done. It is not [to] provide him
something -- a punishment because he's ill.
No. It is a quid pro quo, which the Court,
instead of giv[ing] him six months, is giving
him 12 months of home detention medical care.

DEFENSE COUNSEL: Fine.

COURT: So that the record is clear, somebody
else picks up this record and says, he can't
put him in jail because he's sick. No, I am
not. This is the quid pro quo for six months.
It's 12 months home detention to receive
medical treatment. All right?

DEFENSE COUNSEL: Fine.

COURT: All right.

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 II.

Lopez-Pastrana challenges the twelve-month term of home

confinement as, in effect, an unjustified variance from the

applicable guidelines range of zero-to-six months' imprisonment.

As we explain in Section II.C, that condition of supervised release

was indeed imposed improperly, albeit for a different reason than

Lopez-Pastrana asserts. The government insists, however, that we

should reject appellant's challenge without considering its merits

because it was doubly waived before reaching this court: expressly

when counsel said at the sentencing hearing that "[w]e'll take"

the home confinement condition, and also by operation of the

appellate waiver provision in the plea agreement. As to the

latter, the government maintains that, because Lopez-Pastrana's

zero-months term of imprisonment is consistent with the plea

agreement's recommendation, the appellate waiver provision was

triggered. We thus turn first to the question of waiver.

A. Appellate Waiver

We begin with the plea agreement's appellate waiver

provision because, if it governs, we would be obliged to dismiss

Lopez-Pastrana's sentencing appeal. See, e.g., United States v.

Morales-Arroyo, 854 F.3d 118, 120 (1st Cir. 2017). In arguing

that the appeal may not proceed, the government relies on our

precedent holding that an agreement to surrender appellate review

of "the judgment and sentence" -- language included in Lopez-

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Pastrana's agreement -- encompasses challenges to conditions of

supervised release. See, e.g., United States v. Rojas, 780 F.3d

68, 69 (1st Cir. 2015); United States v. Santiago, 769 F.3d 1, 7

(1st Cir. 2014). In our cases, we repeatedly have held that such

a waiver extends to the conditions of release even where, as here,

the "plea agreement says nothing about them." Rojas, 780 F.3d at

69. Hence, because the conditions of supervised release ordinarily

play no role in assessing whether a defendant has waived the right

to appeal a sentence,3 the government asserts that we should look

only to the term of imprisonment to determine whether appellant's

sentence is consistent with the plea agreement's recommendation.

From that perspective, "the sentence" -- sixty months on the

firearms charge and no additional time on the drug charge --

conformed to the parties' agreed-upon proposal.

The government's position, however, fails to acknowledge

the material difference between home confinement and other types

of supervised-release conditions. Home confinement is treated as

a form of "custody" under federal law, see 18 U.S.C. § 3624(c)(2)

(allowing placement in home confinement as "[p]rerelease

3 Plea agreements commonly do not reference conditions of
supervised release, and we have therefore treated the conditions
as part of the "sentence" to which an appellate waiver applies to
avoid a construction of the appellate waiver that would "render
the entirety of the waiver ineffective upon the imposition of any
condition of supervised release." Rojas, 780 F.3d at 69.

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custody"), and, indeed, "absconding from home confinement" can

itself be a crime, United States v. Ko, 739 F.3d 558, 561 (10th

Cir. 2014) (construing provision governing escape from federal

custody, 18 U.S.C. § 751).4 Moreover, the Guidelines and federal

statutes allow home confinement only as a substitute for

incarceration. See 18 U.S.C. § 3583(e)(4) (stating that a court,

when including a term of supervised release after imprisonment,

may "order the defendant to remain at his place of residence during

nonworking hours," but such an order "may be imposed only as an

alternative to incarceration" (emphasis added)); id. § 3563(b)(19)

(stating that home confinement during nonworking hours may be

imposed as a condition of a sentence of probation "only as an

alternative to incarceration" (emphasis added)); U.S.S.G.

§ 5C1.1(e)(3) (stating, under the heading "Schedule of Substitute

Punishments": "[o]ne day of home detention for one day of

imprisonment"); U.S.S.G. § 5F1.2 ("Home detention may be imposed

as a condition of probation or supervised release, but only as a

substitute for imprisonment." (emphasis added)). Put simply, home

4 We note that Ko involved the defendant's transition from
imprisonment to release pursuant to 18 U.S.C. § 3624(c)(1), which
directs the Bureau of Prisons, "to the extent practicable, [to]
ensure that a prisoner serving a term of imprisonment spends a
portion of the final months of that term (not to exceed 12 months),
under conditions that will afford that prisoner a reasonable
opportunity to adjust to and prepare for the reentry of that
prisoner into the community." The statute authorizes home
confinement as one placement option. See 18 U.S.C. § 3624(c)(2).

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confinement is a "unique" condition of release, permissible only

as a stand-in for imprisonment. United States v. Ferguson, 369

F.3d 847, 851 (5th Cir. 2004) (per curiam).

"We interpret plea agreements under basic contract

principles and construe ambiguities in favor of allowing the appeal

to proceed." Morales-Arroyo, 854 F.3d at 120. In that light, we

have no difficulty concluding that the waiver provision in Lopez-

Pastrana's plea agreement may not be construed to bar his challenge

to a term of home confinement that is twice as long as the high

end of the applicable imprisonment range, where the parties had

recommended a sentence at the low end of the range. Particularly

given the day-for-a-day relationship between imprisonment and home

detention prescribed by the Guidelines, the two forms of custody

are most fairly afforded the same significance in applying Lopez-

Pastrana's appellate waiver. Indeed, in its brief, the government

effectively credits this approach by describing Lopez-Pastrana's

sentence as "an overall term of 72 months," consisting of twelve

months of home detention and sixty months' incarceration.

Two other factors also support our conclusion. First,

the sentencing colloquy reproduced above indicates that the

district court imposed the twelve-month period of home confinement

as a substitute for a six-month term of incarceration. Describing

the supervised-release condition as "a quid pro quo," the court

stated that "instead of giv[ing] him six months, [the court] is

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giving him 12 months of home detention medical care." The Sentence

Recommendation for Count III in the plea agreement, however, was

for "a sentence of imprisonment in the lower range of the

applicable guideline (if [Criminal History Category] I, 0

months)."5 (Emphasis in original.) Hence, the term for which the

court substituted home confinement was itself not "in accordance

with the terms and conditions set forth in the Sentence

Recommendation provisions of th[e] Plea Agreement." Second, even

discounting by fifty percent the impact of home confinement

compared to incarceration -- in effect, what the district court

said it was doing -- the result similarly exceeds the agreed-upon

recommendation. See generally United States v. Tourloukis, 558 F.

App'x 112, 114-15 & n.3 (2d Cir. 2014) (summary order) (declining

to decide "whether each month of home confinement should be seen

as equivalent to a month, or perhaps some lesser period, of

incarceration").

We therefore hold that Lopez-Pastrana's sentencing

appeal is not barred by the plea agreement's appellate waiver

provision.

5
Appellant's Criminal History Category ("CHC") turned out to
be II, but the same guideline range applies to CHC I and II.

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B. Waiver at the Sentencing Hearing

The government argues that defense counsel's twice-

stated comment that "[w]e'll take" the offered quid pro quo of

home confinement for incarceration, and counsel's response of

"Fine" when the court asked if "12 months home detention to receive

medical treatment" was acceptable, amounted to clear waivers of

objections to the sentence. We disagree.

In a portion of the colloquy preceding the excerpt

reproduced above, defense counsel attempted to persuade the

sentencing judge that, given his client's medical condition, a

term of home confinement to follow his sixty-month term of

incarceration was both unnecessary and unduly restrictive. That

exchange included the following:

DEFENSE COUNSEL: As the Court is aware, every
defendant that is . . . in jail to do their
sentence, prior to their exiting they are
placed in halfway houses and then they're
monitored to see whether they should continue
under those conditions that makes it viable.
In this particular case, Your Honor has
ordered that once he even finishes that
process that he continue with some type of
monitoring device. If --

COURT: Well, the problem was that since the
Court gave this defendant a zero sentence, and
he is going to require medical aid, we thought
that maybe he would applaud this condition.

DEFENSE COUNSEL: Well, Your Honor, remember
that he will continue under supervised release
for five years. So . . . what I am objecting
[to] is that he be continued restrained by
monitoring devices.

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 COURT: But this is restrained at his house.
Assume that the Court gave him zero, but
at the same time the Court gave him home
detention, would you object to that?

DEFENSE COUNSEL: If, Your Honor -- and please,
I'm not trying to be funny, but is the Court
considering . . . changing the five years for
that?

COURT: Well, no.

DEFENSE COUNSEL: That's what I'm saying.
That's what I'm saying, Your Honor, it's in
addition to.

A short time later, after noting that "obviously [appellant is]

going to do five years on the gun count," counsel explained that

his "only concern" was that "if he's ill now, it's likely that he

will be" upon his release. When the court insisted that home

confinement would be advantageous "if he's really very ill" because

he would receive government-paid medical care, counsel stated,

"I'd take it then, Your Honor."

In context, we do not read counsel's ultimate

acquiescence to home confinement as a willing relinquishment of

objections to that condition. Rather, faced with the court's

ultimatum that appellant's only other choice was an additional six

months in prison, counsel accepted as "Fine" what he evidently

viewed as the better of two undesirable options. Particularly

given the improper choice offered by the court -- as we discuss

below -- we decline to reject the home-confinement challenge as

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waived by means of the colloquy at sentencing. We think it fairer

to view the claim as imperfectly preserved and, hence, subject to

plain error review. See, e.g., United States v. Garay-Sierra, 885

F.3d 7, 12 (1st Cir. 2018).

C. The Propriety of the Home Confinement Condition

Having reached the merits, we reiterate that Lopez-

Pastrana received sixty months' imprisonment on Count IV and

concurrent supervised release terms on Counts III (two years) and

IV (five years). This sentence included a clear error. As the

government acknowledges, the supervised release term for Count III

is improper because the court imposed no incarceration on that

count, and supervised release must follow a prior term of

imprisonment. See 18 U.S.C. § 3583(a) (stating that the court,

"in imposing a sentence to a term of imprisonment for a felony or

a misdemeanor, may include as a part of the sentence a requirement

that the defendant be placed on a term of supervised release after

imprisonment" (emphasis added)); see also United States v. Pugh,

515 F.3d 1179, 1201 (11th Cir. 2008) ("[B]ecause the district court

did not impose any custodial sentence . . . by law it could not

impose any term of supervised release."). Necessarily, then, the

home-confinement condition is invalid if the court applied it to

the erroneous term of supervised release on Count III.

At the sentencing hearing, after pronouncing the terms

of imprisonment and supervised release, the district court recited

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the conditions of release without differentiating between the two

counts. The court's written judgment likewise failed to expressly

link the twelve months of home confinement to a particular count.

However, the court's statements throughout the hearing depicted

the year of home confinement as one of two alternative punishments

for the drug crime. Indeed, the government points out that "the

record makes clear that the district court imposed this condition

as the 'quid pro quo' for a zero-month sentence on Count 3."

Within this context, we think the only fair reading of the

sentencing is that the district court improperly tethered the home-

confinement condition to the impermissible term of supervised

release on Count III.

The government argues that even if the condition was

wrongly linked to Count III, Lopez-Pastrana neither deserves nor

needs a remedy. Any such error would be harmless, the government

maintains, because the district court had authority to impose home

detention as a substitute for imprisonment on Count III pursuant

to 18 U.S.C. § 3563(b)(19). That assertion is incorrect. Section

3563(b)(19) specifies home detention as one of the discretionary

conditions that may be imposed as part of a sentence of probation.

However, Lopez-Pastrana's Presentence Investigation Report states

that he was ineligible for probation on Count III because he was

sentenced at the same time to a term of imprisonment for Count IV.

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See 18 U.S.C. § 3561(a)(3).6 Although a separate statutory

provision permits courts to impose most of the conditions listed

in § 3563(b) in the context of supervised release, see 18 U.S.C.

§ 3583(d), the problem here is that supervised release itself was

impermissible based on the zero months' imprisonment imposed on

Count III.

The government's other harmless-error rationale has a

stronger foundation. The district court directed that the improper

term of supervised release for Count III run concurrently with the

authorized term of supervised release for Count IV. Hence, the

court could have accomplished its apparent objective by ordering

one year of home detention as a condition of supervised release on

the firearms count. In addition, apart from harmless error, the

government points out that Lopez-Pastrana has not made the correct

claim of error on appeal -- i.e., that supervised release on Count

6Federal law permits probation or a fine as alternatives to
imprisonment for persons found guilty of an offense, see 18 U.S.C.
§ 3551(b), although the "choice among [the] three alternative
punishments" may be limited by specific provisions, United States
v. Martin, 363 F.3d 25, 35 (1st Cir. 2004). For example, a
defendant found guilty of a Class A felony is not eligible for
probation, see 18 U.S.C. § 3561(a)(1), and probation also is
unavailable if "the defendant is sentenced at the same time to a
term of imprisonment for the same or a different offense that is
not a petty offense," id. § 3561(a)(3). See also U.S.S.G.
§ 5B1.1(b) (stating that a sentence of probation is not authorized
if, inter alia, "the defendant is sentenced at the same time to a
sentence of imprisonment for the same or a different offense, 18
U.S.C. § 3561(a)(3)").

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III was impermissible -- and instead has complained only that the

district court did not adequately explain its "departure or

variance from the otherwise applicable guideline imprisonment

range."

There is some force to the government's position that no

remedy is needed for the district court's error. Nonetheless,

despite its view that we should affirm Lopez-Pastrana's sentence

as is, the government stated in its brief and at oral argument

that it did not oppose a limited remand directing the district

court to reconsider the home detention condition and to ensure

that, if retained, the condition is imposed properly. We believe

a remand is the best course in the circumstances of this case.

Not only did the district court clearly err by imposing supervised

release on Count III, but the court also began the sentencing

hearing with the incorrect view that the zero months' sentence was

a beneficial variance for the defendant and "below what he agreed."

As described in Section I, the government subsequently clarified

that zero months was within the guidelines range. Yet, the court's

initial misunderstanding may have affected the quid pro quo it

offered to Lopez-Pastrana and its decision to impose home

detention. That is, the option of home confinement for a term

twice as long as the high end of the guidelines range may have

been influenced by the court's incorrect belief that the zero-

months' sentence was a generous variance from the range.

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 We thus conclude that the most equitable approach is the

limited remand accepted by the government so that the district

court may correct the conceded error in imposing supervised release

on Count III. See 28 U.S.C. § 2106 (stating the authority of

appellate courts to order a remand and "require such further

proceedings to be had as may be just under the circumstances").

Accordingly, we need not proceed to the third and fourth steps of

the plain error inquiry.

Although we express no view as to the proper sentence to

be imposed on remand, we offer two observations. First, as defense

counsel acknowledged at oral argument, the district court's

reconsideration of the home detention condition could result in a

term of imprisonment on Count III. However, the defendant

represents that his health remains problematic, and the court may

properly consider any change in his condition that occurred during

the nearly three years since his original sentencing. See Pepper

v. United States, 562 U.S. 476, 481 (2011) (holding that "a

district court at resentencing may consider evidence of the

defendant's postsentencing rehabilitation"); id. at 491 (noting

generally that the same types of information about a defendant are

relevant at both the "initial sentencing and a subsequent

resentencing after a prior sentence has been set aside on appeal");

United States v. Bryson, 229 F.3d 425, 426 (2d Cir. 2000) (per

curiam) (noting that "a court's duty is always to sentence the

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defendant as he stands before the court on the day of sentencing"

(quoted in Pepper, 562 U.S. at 492)). Moreover, the government

indicated at oral argument that, if we remanded for resentencing,

it did not plan to seek imprisonment time for Count III.

Second, the district court will have flexibility in

reconsidering the erroneous term of supervised release and home

detention. The district court could limit the resentencing to

Count III, now understanding that any period of supervised release

on that count, and any condition of supervised release -- including

home detention -- must be linked to a period of imprisonment.

However, the government also has emphasized the availability of

home confinement as a condition of supervised release on Count IV.

We see no reason why the district court should be foreclosed from

reinstating home detention in that way -- i.e., by retaining the

zero months' sentence on Count III, eliminating the improper term

of supervised release on that count, and imposing home confinement

as part of the sentence on Count IV. Although the government may

not have anticipated the effect of that approach on the scope of

the remand, correcting the error in that way would necessarily

broaden the resentencing to both counts and require a determination

that home confinement is an appropriate "alternative to

incarceration" on Count IV. 18 U.S.C. § 3583(e)(4).7

7
Relatedly, we note that the proceedings on remand may be
affected by the outcome of appellant's request, in December 2015,

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 III.

We thus vacate the sentence imposed on Count III and

remand this case to the district court for resentencing consistent

with the discussion above. The court also may revisit the sentence

on Count IV for the purpose we have described.8

So ordered.

that the Bureau of Prisons ("BOP") file a motion requesting his
compassionate release. See 18 U.S.C. § 3582(c)(1)(A)(i) (allowing
a court to reduce a term of imprisonment, upon motion of the BOP
director, based on a finding that "extraordinary and compelling
reasons warrant such a reduction"); 28 C.F.R. § 571.60-63
(specifying procedures for initiating a request under
§ 3582(c)(1)(A)). At oral argument in March 2018, Lopez-
Pastrana's counsel reported that the request to the BOP remained
pending. The remand proceedings ordered herein could become
superfluous if the BOP submits, and the district court grants, a
motion under § 3582(c)(1)(A).

8 In a pro se filing, Lopez-Pastrana raises nineteen largely
undeveloped additional claims of error affecting both his
conviction and sentence. He challenges, inter alia, the validity
of the search of his home that led to his arrest and the legality
of the drug charges brought against him. He also asserts multiple
instances of ineffective assistance of counsel. Most of these
claims are either waived or premature. Having entered an
unconditional guilty plea, appellant may not seek to undo his
conviction based on errors that occurred before his plea. See
Tollett v. Henderson, 411 U.S. 258, 267 (1973); United States v.
Castro-Vazquez, 802 F.3d 28, 32-33 (1st Cir. 2015). Nor may we
entertain fact-bound claims of attorney ineffectiveness on direct
appeal. See, e.g., Castro-Vazquez, 802 F.3d at 33. The remainder
of the pro se claims are either plainly without merit or
insufficiently developed to permit meaningful review.

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