                  Not For Publication in West's Federal Reporter
                 Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                          For the First Circuit


No. 04-2450

                                UNITED STATES,

                                   Appellee,

                                        v.

                                  JOSE DURAN,

                           Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                        FOR THE DISTRICT OF MAINE


           [Hon. D. Brock Hornby, U.S. District Judge]


                                     Before

                          Boudin, Chief Judge,
              Campbell and Stahl, Senior Circuit Judges.



     Peter J. Cyr and Law Offices of Anthony J. Sineni, III, LLC
on brief for appellant.
     Margaret D. McGaughey, Appellate Chief and Paula D. Silsby,
United States Attorney on brief for appellee.



                              January 12, 2006
            Per Curiam.       Appellant, Jose Duran, was convicted of

conspiracy to distribute and possess with intent to distribute

100 grams or more of heroin in violation of                      21 U.S.C. §§

841(a)(1)   &   846.     He    now   appeals    both     his    conviction   and

sentence.

            In addition, on November 21, 2005, appellant filed a

motion to relieve his attorney requesting that we provide him a

copy of a 28(j) letter filed by the government and grant him

leave to refile his pro se supplemental brief.                     Refiling is

unnecessary, however, because we are in receipt of his September

23, 2005 pro se supplemental brief and have considered the claims

raised therein, as well as the claims raised in the supplemental

brief, reply brief and merits brief filed through his counsel on

his behalf.     Moreover, we have provided appellant a copy of the

28(j) letter.     Accordingly, the motion is denied.

            Further, he filed on December 5, 2005 and December 16,

2005 motions claiming that the District Court in Maine lacked

jurisdiction because      appellant was indicted for a crime that

allegedly took place solely in Massachusetts.                  The facts of the

presentence     report   detailing     the     instant    offense--to     which

appellant did not object below--belie appellant's argument. They

indicate that appellant engaged in a conspiracy to provide drugs

that were to be sold in Maine.         Accordingly, we deny the motion

and turn to his appeal.       See 18 U.S.C. § 3237 ("Offenses begun in


                                     -2-
one district and completed in another, or committed in more than

one district, may be inquired of and prosecuted in any district

in which such offense was begun, continued, or completed.").

          I.   Appeal of the Conviction

          We first address his appeal of his conviction, which

largely consists of waived claims.     Appellant argues that the

district court erred in relying upon police reports to conclude

that he was previously convicted of his prior convictions.

Appellant, however, waived the claim when appellant's counsel

withdrew his objection concerning the evidence presented by the

government in support of the prior convictions and when appellant

admitted that the facts in the presentence report are undisputed.

          Likewise,   appellant   waived    his   argument   that the

district court erred in allowing him to plead guilty to an

indictment that was not supported by sufficient evidence and

which was based on perjured statements.        See United States v.

Lujan, 324 F.3d 27, 30 (1st Cir. 2003) (a guilty plea waives all

nonjurisdictional challenges to a criminal conviction); United

States v. Cotton, 535 U.S. 625, 629-631 (U.S. 2002)(concluding

claim that indictment was defective because it failed to include

drug quantity was not jurisdictional).

          Though related, appellant's claim that his plea was

involuntary is not waived, however.        In particular, appellant

asserts his plea was involuntary because the court failed to


                              -3-
establish the factual basis for his plea.       See Fed. R. Crim. P.

11(b)(3) (stating, "[b]efore entering judgment on a guilty plea,

the court must determine that there is a factual basis for the

plea.").    We review Rule 11 challenges raised for the first time

on appeal only for plain error.       See United States v. Cheal, 389

F.3d 35, 40 (1st Cir. 2004).          After reviewing the record, we

conclude there was no plain error here because appellant's plea

had a rational basis in facts that he conceded.              See United

States v. Serrano-Beauvaix, 400 F.3d 50, 53 (1st Cir. 2005).

            Appellant also waived his claims that his guilty plea

cannot be accepted because venue was not proper.             See United

States v. Lujan, 324 F.3d 27, 30 (1st Cir. 2003) (a guilty plea

waives     all    nonjurisdictional    challenges   to   a     criminal

conviction); United States v. Meade, 110 F.3d 190, 200 (1st Cir.

1997) (stating, "[w]e have further recognized that venue is a

waivable personal privilege designed for the benefit of the

defendant.       As such, the constitutional and statutory venue

provisions are not restrictions on the court's jurisdiction.")

(citations omitted).

            In addition, he claims that his counsel ineffectively

assisted him.     "The rule in this circuit is that a fact-specific

claim of ineffective legal assistance cannot be raised initially

on direct review of a criminal conviction, but must originally be

presented to the district court."        United States v. Grace, 367


                                 -4-
F.3d 29, 37 (1st Cir. 2004) (internal quotation marks omitted).

We will deviate from this rule "where the critical facts are not

genuinely in dispute and the record is sufficiently developed to

allow reasoned consideration of an ineffective assistance claim."

United States v. Natanel, 938 F.2d 302, 309 (1st Cir. 1991).

Appellant's fact-intensive claim does not fit into the exception

to the rule.

           II.      Appeal of the Sentence

           We now turn to appellant's challenges to his sentence.

He first argues that the district court erred in failing to

exercise its discretion to grant a downward departure.                  He

concedes, however, that he did not request a departure below. We

lack jurisdiction to review a sentencing court's refusal to

depart   downward    based   on   its    belief   that   the   defendant's

circumstances fail to warrant such a departure.                See United

States v. Melendez-Torres, 420 F.3d 45, 50-51 (1st Cir. 2005);

see also United States v. Monteiro, 417 F.3d 208 (1st Cir. 2005)

(declining to review a sentencing judge's refusal to grant a

downward   departure     where    the     judge   did    not   evince   an

understanding that he was constrained from doing so).            Here, the

judge gave no indication that the guidelines constrained him from

granting a departure, so we cannot consider the claim.            See id.

           Appellant further argues that the district court erred

in sentencing him as a career offender pursuant to U.S.S.G. §


                                   -5-
4B1.1.   Guidelines section 4B1.1 sets forth three criteria for

"career offender" status: (1) the defendant was at least 18 years

old at the time he committed the instant offense; (2) the instant

offense is a felony that is either a crime of violence or a

controlled substance offense; and (3) the defendant has at least

two prior felony convictions of either a crime of violence or a

controlled substance offense. Here, the PSR shows that he was 29

years old when he committed the instant offense and that he had

a prior conviction for trafficking possession of marijuana, a

prior conviction for trafficking and possession of cocaine and

heroin, and a conviction for assault and battery and possession

of cocaine.      In addition, there is no doubt that the instant

offense is a felony that is a controlled substance offense.

Accordingly, the three criteria are met, and the district court

did not err in sentencing appellant as a career offender.

            Lastly, appellant raises a claim pursuant to United

States v. Booker, 125 S.Ct. 738 (2005), and with greater success.

Though   the    government   disputes     whether   the    district     court

concluded that the guidelines were mandatory, it is clear to us

from the record that the court acted as if it was bound by

mandatory   guidelines     when   it   sentenced    appellant.     Because

appellant      preserved   the    claim   by   timely     challenging    the

constitutionality of the guidelines, the government has the

burden of proving the harmlessness of the district court's error.


                                    -6-
See United States v. Vazquez-Rivera, 407 F.3d 476, 488-490 (1st

Cir. 2005).

          The government argues that the error was harmless

because appellant's counsel conceded that the statutory minimum

of ten years likely "would not be enough" in light of appellant's

record. We disagree. Over ten years separates appellant's actual

sentence and the statutory minimum, so there is plenty of room

for a lesser sentence that accommodates appellant's counsel's

concession.   The government also argues that, in stating the

sentence was "something that you have brought upon yourself by

your past criminal conduct," the sentencing judge indicated that

he did not feel constrained by the guidelines.

          This argument would have more weight were it not for

the fact that the sentencing judge made several statements that

indicated he felt constrained, "[i]t doesn't give me any pleasure

to impose a sentence of 262 months on a 30-year-old-man" and, "I

don't say that to berate you, simply [it] is the fact that this

is the law that Congress has imposed because of the scourge of

drugs like heroin and other drugs . . . it is a huge sentence .

. . it's a great tragedy for you and your family."   The fact that

the judge sentenced appellant to the bottom of the guidelines

range would not alone warrant a remand but, in conjunction with

the judge's statements, adds to our concerns.    See United States




                              -7-
v. Casas, 425 F.3d 23, 102 (1st Cir. 2005) (doubt enhanced by

sentence at bottom of range).

          Lastly, the government claims that the sentence is

reasonable in light of appellant's extensive criminal record.

Even if we were to consider at this stage the reasonableness of

the sentence, the government's argument goes little distance

towards establishing that the district court's error was harmless

because it is possible that a lesser sentence would meet the

statutory requirements.   See 18 U.S.C. § 3553.   Accordingly, we

believe the Booker error here was not harmless.

          To conclude, we deny appellant's motion to relieve his

attorney and motion for review of jurisdiction, affirm the

conviction, vacate the sentence, and remand for resentencing

consistent with this opinion.   The remand is not a suggestion or

a prediction that the sentence will necessarily be altered.

          It is so ordered.




                                -8-
