               Not for Publication in West's Federal Reporter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. 04-1413

                     UNITED STATES OF AMERICA,

                                Appellee,

                                     v.

                      JUAN RAMON VEGA-MEJIAS,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. José Antonio Fusté, U.S. District Judge]


                                  Before

                       Boudin, Chief Judge,
              Torruella and Howard, Circuit Judges.



     Rafael F. Castro Lang on brief for appellant.
     H.S. Garcia, United States Attorney, and Nelson Perez-Sosa,
Assistant U.S. Attorney, on brief for appellee.



                             July 22, 2005
           Per Curiam.        After pleading guilty to possessing with

intent to distribute more than one kilogram (gross weight) of

heroin in violation of 21 U.S.C. § 841(a)(1), Juan Ramon Vega-

Mejias was sentenced to 10 years' imprisonment, the statutory

mandatory minimum for that offense, 21 U.S.C. § 841(b)(1)(A)(I).

He now appeals from his conviction and sentence and, for the

reasons explained below, we affirm.

           First, Vega-Mejias challenges the validity of his guilty

plea on the ground that the district court violated Rule 11 of the

Federal Rules of Criminal Procedure by not adequately advising him

of the consequences of his plea.       In particular, he argues that the

district court should have advised him that his prior criminal

record rendered him ineligible for a downward departure, below the

statutory mandatory minimum, under the "safety valve" provision,

U.S.S.G. § 5C1.2; 18 U.S.C. § 3553(f). Because Vega-Mejias did not

raise his Rule 11 claim in the trial court, we review the alleged

error under the plain error standard.          United States v. Vonn, 535

U.S. 55, 59, 63 (2002).

           Here, no Rule 11 error occurred, much less a plain one.

At the change of plea hearing, the district court complied with its

obligation to "inform the defendant of, and determine that the

defendant understands, . . . any mandatory minimum penalty."            Fed.

R. Crim. P. 11(b)(1)(I).        In particular, the court explained that

by   pleading   guilty   to    the   charged   conduct,   Vega-Mejias   was


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"exposing [him]self to a statutory mandatory minimum term of

imprisonment of 10 years" and confirmed Vega-Mejias's awareness of

that mandatory minimum.       The court further confirmed Vega-Mejias's

understanding that "any criminal record that [he] may have" will be

relevant to determining what his sentence should be.              When asked

whether he had a criminal record, Vega-Mejias responded, "No, sir."

Given that response, which was later echoed by defense counsel, the

court understandably focused primarily on the fifth requirement of

the safety valve–-defendant's obligation to provide all information

he has about the crime--in further explaining that provision.

            Next, Vega-Mejias argues that his attorney's failure to

investigate his criminal history before advising him to plead

guilty deprived him of his constitutional right to effective

assistance of counsel.        That claim is also unavailing.

            As we previously held in similar circumstances, "There is

no   per   se   rule   that    an   attorney's   failure   to    investigate

independently his client's criminal history before advising him to

accept a plea offer is ineffective assistance. . . .            [L]awyers are

entitled to rely reasonably on the explicit representations of

clients about their criminal histories."          United States v. Colón-

Torres, 382 F.3d 76, 86 (1st Cir. 2004).         Rather, "'a determination

of whether reliance on a client's statement of his own criminal

history constitutes deficient performance depends on the peculiar

facts and circumstances of each case.'" Id. (quoting United States


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v. Pease, 240 F.3d 938, 941-42 (11th Cir. 2001)).               And as we have

often held, "'fact-specific claims of ineffective 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. Negrón-Narváez, 403 F.3d 33, 40

(1st Cir. 2005) (quoting United States v. Mala, 7 F.3d 1058, 1063

(1st Cir. 1993)).     Here, as Vega-Mejias concedes, "[t]he record is

unclear as to how much information was developed by his counsel

prior   to    the   celebration   of     the    change     of   plea   hearing."

Accordingly, this argument is premature; any such ineffective

assistance claim should be brought in the district court under 28

U.S.C. § 2255.

             Finally, Vega-Mejias argues that the district court erred

in imposing a 10-year mandatory minimum sentence under 21 U.S.C.

§   841(b)(1)(A)(I),    rather    than   a     five-year    mandatory    minimum

sentence under 21 U.S.C. § 841(b)(1)(B)(I), because the parties

stipulated that the net weight of the heroin carried by Vega-Mejias

was 902.7 grams, less than 1 kilogram.             The short answer to this

argument is that it is the gross weight–-not the net weight–-of the

heroin that controls the length of the mandatory minimum sentence.

See 21 U.S.C. § 841(b)(1)(A)(I) (establishing mandatory minimum

sentence of 10 years in a case involving "1 kilogram or more of a

mixture or substance containing a detectable amount of heroin");

Chapman v. United States, 500 U.S. 453, 464 (1991) (explaining


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rationale for use of gross rather than net weights); see also

U.S.S.G. § 2D1.1(c) (Drug Quantity Table) n.A (providing that

"[u]nless otherwise specified, the weight of a controlled substance

set forth in the [Drug Quantity] table refers to the entire weight

of any mixture or substance containing a detectable amount of the

controlled   substance").       Since      Vega-Mejias      pled   guilty   to

possessing more than one kilogram (gross weight) of heroin and

failed to object to the PSR's statement that he was carrying

1,954.80   grams   (gross   weight)   of    heroin,   the    district   court

committed no error, plain or otherwise, in imposing the mandatory

minimum 10-year sentence under 21 U.S.C. § 841(b)(1)(A)(I).                 For

the same reason, Vega-Mejias's trial counsel was not ineffective in

failing to make this argument below.

           Accordingly, the judgment and sentence are affirmed. See

Local R. 27(c).




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