               Not For Publication in West's Federal Reporter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. 04-2125

                             UNITED STATES,

                                Appellee,

                                     v.

                             DAVID SANFORD,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                     FOR THE DISTRICT OF MAINE

        [Hon. John A. Woodcock, Jr., U.S. District Judge]


                                  Before

                    Torruella, Selya and Lipez,
                          Circuit Judges.



     Barry S. Pollack, Jill Brenner Meixel and Donnelly, Conroy &
Gelhaar, LLP, on brief for appellant.
     Margaret D. McGaughey, Appellate Chief, and Paula D. Silsby,
United States Attorney, on Motion for Summary Disposition for
appellee.


                          December 28, 2005
     Per Curiam.     Pursuant to a plea agreement, appellant, David

Sanford, Jr., pleaded guilty to conspiracy to interfere with

commerce by robbery, possession of a stolen firearm, felon in

possession of a firearm, and possession of a controlled substance

with intent to distribute.     He now challenges both his conviction

and sentence.

     Appellant's primary argument is that his guilty plea was

involuntary because he ingested three medications for depression

and psychosis on the morning he entered his plea.     This claim has

been raised for the first time on appeal, so we review for plain

error.   See   United States v. Serrano-Beavaix, 400 F.3d 50, 53 (1st

Cir. 2005).     As the district judge was made aware of appellant's

ingestion during the hearing, the judge was obligated to conduct a

more searching inquiry into the contemporaneous effects of the

medication on his ability to render a knowing and intelligent plea.

Miranda-Gonzalez v. United States, 181 F.3d 164, 166 (1st Cir.

1999).   The district judge satisfied his duty: he asked appellant

on four separate occasions whether he understood the nature of the

proceedings, and each time appellant assured the court of his

ability to comprehend the proceedings.      Appellant also appeared

lucid, confirming his own assurances of competency.     Accordingly,

the involuntariness claim fails.

     For the same reasons, we find no impediment to concluding that

appellant effectively waived his appellate rights during the Rule


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11 colloquy.       After reviewing the Rule 11 transcript in its

entirety, we conclude that the district judge took pains to explain

that his right to appeal is circumscribed by his plea agreement,

which includes a waiver of appeal provision clearly providing that-

-subject to an exception discussed below--appellant waives his

right   to   appeal   or   to   challenge   his   conviction   and   sentence

collaterally.     See United States v. Teeter,         257 F.3d 14, 25-26

(1st Cir. 2001).      We see no miscarriage of justice in enforcing the

provision.

     However, we will assume, without deciding, that the exception

to the appeal waiver provision renders the waiver inapplicable to

appellant's claims pursuant to United States v. Booker, 543 U.S.

220 (2005) and pursuant to Shepard v. United States, 125 S. Ct.

1254 (2005).    See United States v. Taylor, 413 F.3d 1146, 1151-52

(10th Cir. 2005) (construing a similarly worded exception to an

appeal waiver to permit a direct appeal on Booker grounds).             Even

on that assumption, the appellant does not profit.

     As to the Booker claim, appellant argues that the appropriate

standard of review is harmless error.         We disagree.     Although the

sentencing judge sua sponte concluded that Blakely v. Washington,

542 U.S. 296 (2004), was inapplicable to appellant's sentence,

appellant neither objected to the judge's conclusion, claimed that

the guidelines were unconstitutional, nor otherwise raised any

error under Blakely or Apprendi v. New Jersey, 530 U.S. 466 (2000).


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Thus, the error was not preserved.              See United States v. Martins,

413 F.3d 139, 153 (1st Cir. 2005).             Accordingly, we apply the plain

error standard of United States v. Antonakopoulos, 399 F.3d 68, 75

(1st   Cir.     2005),     which       requires       appellant    to      "point     to

circumstances creating a reasonable probability that the district

court would impose a different sentence more favorable to the

defendant     under      the    'advisory       Guidelines'       Booker     regime."

Appellant's      primary       claim    is     that    there     exist     mitigating

circumstances that the mandatory guidelines either prohibited or

discouraged the sentencing judge from considering when he devised

the sentence.      In particular, appellant points to the numerous

sympathetic circumstances he described in his sentencing hearing

allocution.     He does not bother in his brief, however, to explain

how the guidelines minimized the impact of each (or any) of these

circumstances. Upon review of the guidelines, it is apparent that,

at most, a small fraction of these circumstances were prohibited

from consideration for downward departure and may have led the

judge to feel that he could not fully consider them when sentencing

within the guidelines range.             This attenuated possibility surely

does not establish a reasonable probability in light of the judge's

comments during sentencing.            The sentencing judge stated that "the

20-year sentence, as harsh as it is, is necessary to protect

society   and    other     people      from   you     and   to   protect    you     from

yourself."      The judge's clear satisfaction with the sentence and


                                         -4-
the fact that he selected a point in the middle of the range are

sufficient   to    enable   us   to   conclude   that   appellant     has   not

sustained his burden. See, e.g., United States v. Baskin, 424 F.3d

1, 4-5 (1st Cir. 2005).     For the same reasons, we are not persuaded

by appellant's argument that the judge would on remand more fully

consider that appellant's codefendant, who played a more crucial

role in the crime, received a less substantial sentence.

     As to appellant's Shepard claim, he argues that the district

court erred when, at sentencing, it relied on incompetent evidence

of prior offenses.     Even assuming that the Shepard claim survived

the waiver of appellate rights provision in the plea agreement, it

is nevertheless waived for different reasons. Appellant stipulated

elsewhere in his plea agreement to the fact that he was an armed

career criminal.      Though Shepard articulated a new rule for the

manner in which judges can conclude that a defendant has armed

career   criminal    status,     appellant   accepted    the   risk   that   a

favorable change in the law would occur after he entered his plea.

See United States v. Sahlin, 399 F.3d 27, 31-32 (1st Cir. 2005).

In addition, he raised an initial objection as to the factual

predicates for the armed career criminal enhancement and later

withdrew it.      Lastly, he failed to object to any of the judge's

fact-finding in connection with the latter's conclusion that the

armed career criminal enhancement applied.              Accordingly, he has

waived his Shepard claim.        See Sahlin, 399 F.3d at 31-32; United


                                      -5-
States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002).

     Lastly,    appellant     maintains     that    "[t]he      record   reflects

inadequate     access   between     [him]     and    his     trial      attorney."

Generally,   claims     of   ineffective     assistance      of   counsel       must

originally be presented to the district court as a collateral

attack under 28 U.S.C. § 2255.       United States v. Colon-Torres, 382

F.3d 76, 84 (1st Cir. 2004).              As the record in this case is

insufficiently    developed,      this    case     does   not    fall    into   the

exception to the general rule.           See id.

     Accordingly, we grant the government's motion for summary

disposition.     See 1st Cir. R. 27(c).             We therefore affirm the

conviction and sentence.




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