      [NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

         United States Court of Appeals
                    For the First Circuit


No. 99-1681

                        UNITED STATES,

                          Appellee,

                              v.

                   JUAN ORTIZ, A/K/A LENTO,

                    Defendant, Appellant.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Robert E. Keeton, U.S. District Judge]


                            Before

                    Torruella, Chief Judge,
               Campbell, Senior Circuit Judge,
                  and Stahl, Circuit Judge.




    Van L. Hayhow on brief for appellant.
    Juan Ortiz on brief pro se.




                        April 12, 2001
           Per Curiam. Defense counsel for Juan R. Ortiz has

submitted an Anders brief and motion to withdraw, asserting

that there are no meritorious issues to be raised on appeal.

See Anders v. State of California, 386 U.S. 738, 744 (1967).

Ortiz filed a pro se supplemental brief raising a single

issue: that his attorney provided ineffective assistance of

counsel because he failed to seek a downward departure based

upon   Ortiz’   pre-trial   detention     at    the     Wyatt   Detention

Facility   under    unconstitutional       conditions.           Ortiz   is

represented by new counsel on appeal.

           Ortiz pled guilty to four counts of conspiracy and

distributing    and    possessing   with       intent    to     distribute

heroin.    The plea was pursuant to a written plea agreement

in which the parties agreed that they would not seek a

departure from the applicable guideline sentencing range.

The transcript of the guilty plea hearing reveals that the

district    court     complied   with    the     requirements       under

Fed.R.Crim.P. 11.

           The PSR recommended a two-level reduction in the

base offense level, beyond what was specified in the plea

agreement, because Ortiz met the criteria set forth in

U.S.S.G. § 5C1.2.        Accordingly, the five-year statutory

minimum sentence did not apply.         The PSR included a detailed
statement of facts, to which neither party objected.                         The

sentencing         court    followed     the        PSR’s     recommendations,

including      a     three-level       reduction       for     acceptance     of

responsibility.            The   government     complied       with   the   plea

agreement, by recommending a sentence of 37 months, at the

low end of the applicable guideline sentencing range, and a

supervised release term of four years.                      The court accepted

that recommendation in imposing the sentence.                     Although the

plea agreement had included a waiver by Ortiz of his right

to appeal, the sentencing court did not enforce the waiver

and informed Ortiz of his right to appeal his sentence.

              In a supplemental pro se brief, Ortiz argues that

his attorney provided ineffective assistance of counsel

because he did not seek a downward departure on the basis of

the conditions of Ortiz’ pre-trial detention at the Wyatt

Detention      Facility,         a   non-federal,           maximum   security

facility.      However, this court does not find the ineffective

assistance of counsel claim to be a meritorious appellate

issue.

              First, this court would not be the proper forum for

Ortiz    to   first    present       this    ineffective        assistance    of

counsel claim:

              We have       repeatedly       held    that “fact-
              specific        claims          of      ineffective

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               assistance cannot make their debut on
               direct review of criminal convictions,
               but, rather must originally be presented
               to, and acted upon by, the trial court.
               United States v. Mala, 7 F.3d 1058, 1063
               (1st Cir. 1993)(citing cases). We have
               allowed   exceptions   only   when   the
               critical facts are not in dispute and
               the record is sufficiently developed to
               allow reasoned consideration of the
               claim. Id.”


United    States    v.     Hoyle,   237    F.3d    1,    8   (1 st   Cir.   2001)

(quoting United States v. Bierd, 217 F.3d 15, 23-24 (1st Cir.

2000).

               Second, this court has never before held that

conditions of confinement constitute a permissible basis for

downward departure.           Although some district courts have

granted    a    downward     departure     on     that   basis,       “no   clear

consensus exists as to the propriety of granting a downward

departure for conditions of pretrial confinement.” United

States v. Francis, 129 F.Supp.2d 612, 615 (S.D.N.Y. 2001)

(collecting cases).

               Third, in his plea agreement, Ortiz agreed not to

seek a downward departure from the applicable guideline

sentencing range.          Therefore, if his attorney had sought a

downward       departure    at   sentencing,       he    would       have   acted

contrary to the terms of Ortiz’ plea agreement.                       Ortiz has

not indicated a desire to withdraw his plea.                   His attorney’s

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failure   to   breach   the   plea    agreement    could    scarcely

constitute     ineffective    assistance   of     counsel   in   such

circumstances.

          Our careful and thorough review of the entire

record, including transcripts of the change of plea and

sentencing hearings, does not reveal any meritorious grounds

for challenging Ortiz’ sentence or guilty plea.

          Counsel’s motion to withdraw is granted.           Ortiz’

conviction and sentenced are affirmed, without prejudice to

his raising his ineffective assistance of counsel claim in

a motion pursuant to 28 U.S.C. § 2255.




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