                Not for Publication in West's Federal Reporter

          United States Court of Appeals
                       For the First Circuit

No. 09-2282
                             UNITED STATES,

                                Appellee,

                                     v.

       JOSE PORTORREAL, a/k/a Jose Ramon Portorreal-Pena,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Douglas P. Woodlock, U.S. District Judge]


                              Before
                       Lynch, Chief Judge,
              Torruella and Lipez, Circuit Judges.


     Derege B. Demissie and Demissie & Church on brief for
appellant.
     Jennifer Hay Zacks, Assistant U.S. Attorney, and Carmen M.
Ortiz, United States Attorney on Motion for Summary Disposition for
appellee.

                           February 15, 2011
           Per Curiam.       This is a direct criminal appeal in which

the government has moved for summary disposition.                  We grant its

motion.

           I.     Background

           Jose Portorreal pled guilty to a cocaine conspiracy

offense under 21 U.S.C. § 846.           At his plea hearing, he admitted

participating      only    in   a     single    three-kilogram      transaction,

conceding as well that he was personally responsible for that

amount. The government claimed that Portorreal was responsible for

at least five kilograms of cocaine.             After accepting Portorreal's

guilty    plea,    the     district    court     held     evidentiary     hearings

addressing   the    disputed    drug     quantity       issue.    Crediting      the

government's evidence, it found Portorreal responsible for well

over five kilograms of cocaine.               After calculating his advisory

guideline sentencing range, the district court imposed a below-

guideline sentence of 272 months, less than 23 years.                   Portorreal

then filed this appeal.

           II.     Discussion

           On appeal, Portorreal seeks vacatur of his guilty plea,

or at least a remand for resentencing based on the three-kilogram

amount of cocaine he admitted to.              His central contention is that

the   district     court    erroneously        treated    drug   quantity   as    a

sentencing factor and not as an element of his conspiracy offense

during the change-of-plea and sentencing proceedings.


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            We review Portorreal's claims, which are raised in this

court for the first time, for plain error.              United States v.

Jiminez, 498 F.3d 82, 85 (1st Cir. 2007) (involving defaulted

objections to the plea hearing); United States v. Salas-Fernández,

620 F.3d 45, 48 (1st Cir. 2010) (involving defaulted sentencing

objections).     Portorreal    has    not   satisfied   the   plain   error

standard.    He misconstrues the import of Apprendi v. New Jersey,

530 U.S. 466 (2000), relies on inapposite case law, and overlooks

the binding precedent in this circuit.

            As Apprendi requires, Portorreal received a sentence that

was within the statutory maximum for the drug quantity he admitted

to at his plea hearing.         530 U.S. at 490; see 21 U.S.C. §

841(b)(1)(B) (a 40-year maximum applies to offenses involving at

least 500 grams of cocaine but less than five kilograms).

            "The quantity of drugs is not an element of conspiracy

under § 846, nor is it an element of the underlying controlled

substances offense[.]"    United States v. González-Vélez, 466 F.3d

27, 35 (1st Cir. 2006).       It is a sentencing factor that may be

found by district courts based on a preponderance of the evidence,

even if their factfinding elevates the applicable § 841(b)(1)

mandatory minimum sentence. United States v. Goodine, 326 F.3d 26,

31-34 (1st Cir. 2003) (finding § 841(b)(1)'s "incremental" changes

in the mandatory minimums based on drug quantity to be permitted by




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Harris v. United States, 536 U.S. 545, 554 (2002), which considered

a sentencing provision in a firearm statute, 18 U.S.C. § 924(c)).

           The Supreme Court's recent opinion in United States v.

O'Brien, 130 S. Ct. 2169 (2010), is distinguishable.               See id. at

2177 (construing the sentencing provision in § 924(c)(1)(B)(ii),

which involved a "drastic, sixfold" increase in the mandatory

minimum   for   certain     firearm   offenses,    and     distinguishing   the

"incremental" increase in Harris).             Portorreal's reliance on the

O'Brien concurring opinions is also unavailing.              See United States

v. Colon, 391 Fed. Appx. 890, 2010 WL 3432816 *1 (1st Cir. 2010)

(unpublished per curiam) (rejecting arguments based on the O'Brien

concurring opinions and stating that Harris, supra, and another

similar Supreme Court case remain "good law" until overruled by the

Court itself).

           Finally, United States v. Santo, 225 F.3d 92 (1st Cir.

2000)   (majority    opinion),      is    also   distinguishable.       Unlike

Portorreal, the defendant in that case pled guilty after being

given inaccurate advice about his § 841(b)(1) mandatory minimum

sentence, which prevented him from being able to "realistically

decide whether to plead guilty."           Id. at 98-99.

           Under Goodine, supra, the claim that defense counsel

rendered ineffective assistance by not objecting to the district

court's   treatment    of    drug     quantity    as   a   sentencing   factor

necessarily fails.    Consistent with our usual practice, we decline


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to consider Portorreal's remaining ineffective assistance claims,

without prejudice to his raising those claims in a timely post-

conviction motion filed under 28 U.S.C. § 2255.   See United States

v. Martins, 413 F.3d 139, 155 (1st Cir. 2005) (declining to address

an ineffective assistance claim on a record that was not fully

developed).

          The district court's judgment is affirmed.   See 1st Cir.

Loc. R. 27.0(c).




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