
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 95-1083                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                    EDWIN DIAZ-MARTINEZ, a/k/a ALEXIS EL BOXEADOR,                                Defendant, Appellant.                                 ____________________        No. 95-1536                                 EDWIN DIAZ-MARTINEZ,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            James Kousouros,  with whom Debra K.  Kousouros was  on brief, for            _______________        appellant.            Edwin  O. Vazquez,  Assistant United  States Attorney,  with  whom            _________________        Guillermo Gil,  United States  Attorney, and Jose  A. Quiles-Espinosa,        _____________                                ________________________        Senior Litigation Counsel, were on brief, for the United States.                                 ____________________                                  December 13, 1995                                 ____________________                      LYNCH, Circuit Judge.   Following  a shootout  near                      LYNCH, Circuit Judge.                             _____________            the   Bayamon  Judicial  Center   in  Bayamon,  Puerto  Rico,            defendant Diaz-Martinez was  convicted of possessing firearms            with obliterated  serial numbers.  He appeals,  saying he was            forced  to  go  to trial  with  defense  counsel  not of  his            choosing, that  the prosecutor improperly argued  at closing,            that his  sentence was  too harsh  under the Guidelines,  and            that  the  statute  under   which  he  was  convicted  cannot            withstand Commerce  Clause  scrutiny under  United States  v.                                                        _____________            Lopez,  115 S.  Ct. 1624  (1995).  We  reject his  claims and            _____            affirm.                                          I            Factual Background            __________________                      The  sounds  of gunfire  and  a man1  lying  on the            ground with critical gunshot wounds evidenced a gun battle on            January  24, 1994  near  the Bayamon  courthouse  and in  the            parking  lot  of  the Santa  Rosa  Shopping  Center.   A  law            enforcement officer leaving  the courthouse  heard the  shots            and ran toward the parking lot.  He saw the defendant running            through  the  lot, pistol  in one  hand  and a  small object,            probably a cellular phone, in the other.  The officer saw the            defendant fire two rounds and ran after him.                                            ____________________            1.  The defendant later told  police that he had gone  to the            Bayamon  courthouse to pick up  this man, and  that they were            fired upon as they were leaving the building.                                         -2-                                          2                      The defendant, who was found  squatting behind some            bushes, came  out with his hands  up when he  saw the officer            approaching  and exclaimed  that someone  was trying  to kill            him.  Other officers who had heard the shots and  one of whom            had seen the  defendant with a gun also arrived at the scene.            A search of the area where the  defendant was found turned up            a  cellular phone and two guns.   One gun had a bullet jammed            inside.  Both smelled of gunpowder, from recent firing.  Both            had their  serial  numbers obliterated.   Twenty-two  bullets            were  found  in  the shopping  center  parking  lot.   Expert            analysis later  indicated that  thirteen had been  fired from            the two  pistols.  A  car was also discovered  in the parking            lot, inside  which were papers indicating it  had been rented            to the defendant,  plus two nine millimeter  bullet casings              the same caliber as the guns.  Other nearby cars  were marked            with bullet holes.                      Weapons  charges were  filed against  the defendant            under Puerto Rico law.  After a finding of probable cause  by            the local  court, those  charges were dropped  to accommodate            the federal  prosecution.2  The federal  indictment was filed                                            ____________________            2.  At the  time  of his  arrest,  the defendant  was  facing            unrelated homicide charges in the Puerto Rico local courts in            connection  with  murders that  had apparently  received some            public notoriety.  Defendant says he is known in the media as            Alexis  El  Boxeador  (Alexis  the  Boxer) and  that  he  was            recognized by some of the police under that moniker.   He was            ultimately  acquitted of  the  murder charges  after a  bench            trial.                                         -3-                                          3            on  February   9,  1994,  charging  two   counts  of  knowing            possession of  firearms  bearing obliterated  serial  numbers            that had been transported  in foreign and interstate commerce            in violation of 18  U.S.C.   922(k).  After a  four-day trial            commencing  April 26,  1994, Diaz-Martinez  was  convicted on            both counts of the indictment.  He was sentenced to serve two            concurrent  terms of  45 months  plus three  years supervised            release and was ordered  on each conviction to pay  $3,000 in            fines and a special assessment of $50.                      While this appeal was pending, the defendant  filed            a  petition in the district court for collateral relief under            28 U.S.C.   2255, arguing that  his trial had been prejudiced            by  ineffective assistance  of counsel.   The  district court            dismissed the  petition as premature, inasmuch  as his direct            appeal  was  still  pending.   The  defendant  appealed  that            dismissal.   We  consolidated the  defendant's direct  appeal            from  his convictions and  sentence with his  appeal from the            dismissal of the section 2255 petition.                                          II            A.  Sixth Amendment Right to Counsel Claim                ______________________________________                      Diaz-Martinez  claims that  the district  court, by            refusing to grant him extra time to  seek out his own counsel            and instead forcing him  to go to trial  with court-appointed            counsel,  denied him his  right under the  Sixth Amendment to            choose his own attorney.  His argument is without merit.                                         -4-                                          4                      Since before his February 15, 1994 arraignment, the            defendant had  been  represented by  attorney  Mendez-Lebron.            When  the district  court  on March  3,  1994, scheduled  the            defendant's trial for April 11, 1994, Mendez-Lebron was still            his counsel of record.  However,  on March 29, less than  two            weeks  prior  to  trial,  Mendez-Lebron  filed  a  motion  to            withdraw.    On March  31, 1994,  the  district court  held a            hearing   on  Mendez-Lebron's   motion,  together   with  the            defendant's motion to obtain new counsel.  The defendant told            the  court  that  he  had  already  contacted  several  other            attorneys  as potential  replacements for  Mendez-Lebron, and            that one  of them, attorney  Acevedo, was on  his way  to the            courthouse to be interviewed by the defendant.                      The district court, after expressing  skepticism as            to  why  the defendant  had  waited so  long  to ask  for new            counsel,  allowed Mendez-Lebron to  withdraw, but  warned the            defendant that  he would  not tolerate strategic  refusals to            accept representation by particular counsel in order to delay            the  trial.  The court  adjourned to permit  the defendant an            opportunity  to   interview   attorney  Acevedo,   and   then            reconvened later the  same day.  The  defendant reported that            Acevedo  was unable to represent  him, but that  he had other            candidates  in mind whom he wished  to contact.  One of those            candidates was attorney Jose Gaztambide.                                         -5-                                          5                      The  court,  observing  that  the  trial  date  was            rapidly approaching, refused to give the defendant additional            time to  interview all of  his potential choices  and instead            appointed Jose Gaztambide   one of the attorneys specifically            identified by the defendant as  someone he planned to contact              as  defendant's counsel.   As a further  accommodation, the            court ordered that the  defendant, who was at the  time under            house  arrest in Florida, be allowed to travel to Puerto Rico            to confer  with Gaztambide in preparation for trial, and also            advised the defendant  that he  could, if he  so chose,  hire            another attorney as  Gaztambide's co-counsel.   The defendant            did not object  to Gaztambide's appointment.   The court also            accommodated the  defendant and his new  counsel by granting,            on the  defendant's motion, a two-week  continuance of trial.            The  trial started on April 26,  1994, with Gaztambide acting            as  defendant's counsel.  At  no time before  or during trial            did the  defendant  advise the  district  court that  he  was            dissatisfied with Gaztambide's representation.                      That a criminal defendant  has an absolute right to            counsel  "does not confer  an absolute right  to a particular            counsel."  United  States v.  Poulack, 556 F.2d  83, 86  (1st                       ______________     _______            Cir.), cert. denied, 434  U.S. 986 (1977); see also  Wheat v.                   ____________                        ________  _____            United States, 486 U.S. 153, 159 (1988) ("[T]he essential aim            _____________            of  the  [Sixth]  Amendment  is  to  guarantee  an  effective            advocate for  each criminal  defendant rather than  to ensure                                         -6-                                          6            that a defendant will inexorably be represented by the lawyer            whom he  prefers.");  Morris v.  Slappy,  461 U.S.  1,  13-14                                  ______     ______            (1983) (Sixth  Amendment does  not guarantee that  an accused            have  a "meaningful relationship" with trial counsel); United                                                                   ______            States v.  Betancourt-Arretuche, 933 F.2d 89,  93 (1st Cir.),            ______     ____________________            cert. denied,  502  U.S.  959  (1991).   A  district  court's            ____________            decision not to permit substitution of trial counsel is given            deference  and  is reviewed  only  for  abuse of  discretion,            especially when  that decision  is based on  legitimate trial            management concerns.   See Poulack,  556 F.2d  at 86  ("[T]he                                   ___ _______            right  of  an accused  to choose  his  own counsel  cannot be            insisted upon in  a manner that will  obstruct reasonable and            orderly court procedure."); see also United States v. Pierce,                                        ________ _____________    ______            60  F.3d 886,  890-91  (1st Cir.  1995),  petition for  cert.                                                      ___________________            filed, 64 U.S.L.W. ____ (U.S. Oct. 19, 1995) (No. 95-6474).            _____                      The  appointment of  Gaztambide as  the defendant's            trial counsel did not constitute  an abuse of discretion  and            did not violate the  defendant's Sixth Amendment rights.   If            anything, the defendant was  granted more choice than  he was                                                 ____            due.   Cf. United  States v. Allen,  789 F.2d  90, 92-93 (1st                   ___ ______________    _____            Cir.) (affirming denial for request for new appointed counsel            absent  showing of  good cause), cert.  denied, 479  U.S. 846                                             _____________            (1986).  The district court gave the defendant the benefit of                                         -7-                                          7            the  doubt in  allowing his  original attorney  to withdraw.3            When  the defendant's  first choice  to replace  that counsel            refused   the   representation,   the  district   court   was            understandably wary  about the prospect of  delaying trial in            order to permit  the defendant to interview  his entire slate            of  alternate candidates.    The court's  decision simply  to            appoint  one  of the  counsel  specifically  identified as  a                                           ______________________________            candidate by  the defendant himself was  surely a permissible            ___________________________________            means of expediting the  process and minimizing delay.   Both            the public and  the defendant  have an interest  in a  prompt            trial  in criminal  cases, and  the  judge properly  acted to            protect that interest.                      A   district  judge's  decision  on  a  defendant's            request   to  substitute   trial  counsel   is  entitled   to            "extraordinary deference" when granting the  request would be            at the expense of the court's trial calendar.  See Pierce, 60                                                           ___ ______            F.3d at 891; see also  Morris, 461 U.S. at 11-12.   Here, the                         ________  ______            district   court's  decision  to  permit  the  withdrawal  of            original  counsel  and  to   appoint  one  of  the  alternate            candidates identified  by the  defendant himself  (instead of            waiting  for the  defendant to  interview each  candidate and            make  a decision  on  his  own)  reflected a  fair  balancing                                            ____________________            3.  The  defendant's  stated  reason  was  that the  original            attorney  was not his choice but had been selected by another            of  his  lawyers representing  him  in  a different  criminal            matter.                                         -8-                                          8            between the defendant's interest  in choosing his counsel and            the court's trial management needs.  Cf. Poulack, 556 F.2d at                                                 ___ _______            86.   That the defendant never objected to the appointment of            Gaztambide before or during  trial makes the district court's            decision  all the  more impervious  to the  defendant's post-            conviction attacks.            B.  The Prosecutor's Closing Argument                _________________________________                      Defendant   argues  that  references  made  by  the            government in  its closing  argument to  the shootout  in the            shopping  center parking  lot were  improper and  tainted his            right  to  a fair  trial.   He  claims that  those statements            encouraged  the jury  to  convict him  not  on the  basis  of            firearms possession,  but on the basis  of uncharged conduct:            his  participation  in  the   shootout.    This  argument  is            unpersuasive.                      The defendant  made no  objection to  the allegedly            improper statements  during the closing argument,  and so our            review is only for plain error.  See United States v. DeMasi,                                             ___ _____________    ______            40 F.3d 1306,  1322 (1st  Cir. 1994), cert.  denied sub  nom.                                                  _______________________            Bonasia  v. United  States, 115 S.  Ct. 947  (1995).   On the            _______     ______________            record before us, there was no such error.                      In fact,  there is no basis for concluding that the            prosecutor's statements  were improper at all.   Testimony by            prosecution witnesses  concerning the  shootout   some  of it            deliberately  elicited  by  the  defendant's own  counsel  on                                         -9-                                          9            cross-examination   was  admitted at trial without  objection                                                       __________________            by  the  defendant.    The prosecutor's  comments  about  the            incident  were  no  more   than  proper  references  to  that            evidence.                      The defendant's complaint  about the  prosecution's            closing  argument  relies upon  an  unrealistic  view of  the            firearms  charges.    The  prosecution was  not  limited,  as            defendant would have it, to saying simply  that the defendant            was  found in a shopping  mall parking lot,  with firearms on            the ground nearby.   Such utter elimination of  context would            have unfairly handicapped  the government's case,  leaving it            unable to  respond to the  defendant's trial theory  that the            law enforcement  officer who first found him  had planted the            weapons  in the  parking  lot in  order to  frame  him.   The            government could provide the jury with a coherent  story that            met  this  defense,  and  it committed  no  transgression  by            commenting  on the evidence  admitted at trial.4   See United                                                               ___ ______            States v. Garcia, 818 F.2d 136, 144 (1st Cir. 1987).            ______    ______                      The prosecutor  also explicitly  asked the jury  to            base its verdict  on the elements of the  firearms possession                                            ____________________            4.  The defendant also seems to suggest that  evidence of the            shootout   constituted   references    to   "other    crimes"            inadmissible under  Fed. R. Evid. 404(b).   Because, however,            the "shootout" was integrally related to the evidence linking            the  guns to  the  defendant (the  possession charges),  that            evidence  could not  have been  barred by  Rule 404(b).   See                                                                      ___            United  States v. David, 940  F.2d 722, 737  (1st Cir. 1991),            ______________    _____            cert. denied, 504 U.S. 955 (1992).            ____________                                         -10-                                          10            charges,  not on evidence of  the shootout.5   The court gave                      ___            instructions cautioning  the jury that the  defendant was not            charged with  any offenses other  than those detailed  in the            indictment.  There was  no danger that the jury  was prompted            by the government's argument to  convict the defendant on the            basis of extraneous conduct.                      Finally, the defendant  claims that the  prosecutor            impermissibly attempted to shift the  burden of proof to  the            defendant by making the following statement in his closing:                      Ah,   but   the   government    has   not                      present[ed]   evidence  that   these  two                      weapons  came  from  Brazil.    It's  not                      enough that we don't  have manufacturers?                      The government has to prove that it [h]as                      traveled   in   interstate   or   foreign                      commerce.   We don't  have to  prove that                      they were brought from Brazil.  But it is                      the   government's    burden   to   bring                      evidence?  Of course not.                                            ____________________            5.  The defense criticized as extremely thin the government's            evidence  that the defendant had ever fired any weapon in the            shopping  center parking  lot.   In response,  the prosecutor            commented:                And  [defendant's  counsel]  has  been talking  about                firing,   firing,  firing,   firing.      Ladies  and                gentlemen of the jury, this defendant is not  charged                with firing  a  weapon. . . .  [T]hat is  irrelevant,                not  because I said that, [but] because  the judge is                going to instruct  that on the law. [Sic]  And if you                see [i]n  that instruction that  one of the  elements                is firing,  I'm going to request  to all  of you that                you bring a verdict of not  guilty, if you heard that                instruction.  But  if you heard the instruction  that                the  government was  to prove  only possession  of  a                weapon as [you]  are going to  be instruct[ed] by the                judge,  bring  a   verdict  of  guilty.    [Paragraph                structure omitted.]                                         -11-                                          11            The context of this statement makes it clear that  it was not            improper.    The statement  was  made  in  connection with  a            discussion of  the interstate or foreign  commerce element of            the section 922(k) offense.   It responded to the defendant's            suggestion that the government  had produced no evidence that            the guns had  been brought to  Puerto Rico  from Brazil.   In            fact, one  of the  government's witnesses had  testified that            the  firearms'  country  of  manufacture and  the  importer's            location could  be  determined by  examining the  identifying            markings engraved on weapons  imported to this country.   The            government's response to this criticism continued:                      When you  go, you  examine   you  have to                      examine   this   weapon   to    see   the                      obliterated  serial  number.    The  same                      weapon  says  that  the  manufacturer  is                      located  at Brazil.    That  is the  best                      evidence and that the importer is located                      at  Miami.   What else  [do] you  need to                      find out?    No manufacturers  in  Puerto                      Rico.  Therefore, it ha[d] to come [from]                      foreign commerce or  [a] foreign  country                      or interstate.            The import of these  statements was clearly that, because  no            gun  manufacturers  exist in  Puerto  Rico,  and because  the            weapons  themselves   bore  evidence   that  they   had  been            manufactured in Brazil and  imported originally to Miami, the            government did not need to produce additional or more  direct            evidence  that the guns had been brought from Brazil in order            to prove  the interstate or  foreign commerce element  of the            section 922(k) offense.  The court's instructions to the jury                                         -12-                                          12              as well as other portions of the government's own closing              made unmistakably  clear that  the burden rested  solely upon            the  government  to prove  the  defendant's  guilt, and  each            element of the offenses  with which he was charged,  beyond a            reasonable doubt.            C.  Sentencing Issues                _________________                      1.  Criminal History Category                          _________________________                      The   district   court  departed   upward   from  a            Guidelines-directed  criminal history category  ("CHC") of II            to  a  CHC  of  IV,  based  on  a  finding  that  the  former            classification did not adequately reflect  the seriousness of            the defendant's criminal history.  We affirm.                      The specific  grounds for the  district court's CHC            departure were (1)  that the defendant  had engaged in  prior            similar  criminal conduct  (including weapons  offenses) that            had not resulted  in conviction; and (2)  that the defendant,            at  the time  he  committed  the  federal offense,  had  been            released  on bail pending trial on charges filed in the local            court,  thus demonstrating a serious lack  of respect for the            judicial system and  a high  risk of recidivism.   These  are            both  encouraged  grounds  for  upward  departure  under  the            Guidelines.   See U.S.S.G.   4A1.3(d) (Nov. 1994)6 (departure                          ___                                            ____________________            6.  All  citations to  the Sentencing  Guidelines are  to the            November 1994 version, the  version in effect at the  time of            the defendant's December 1994  sentencing.  See United States                                                        ___ _____________            v. Aymelek, 926  F.2d 64,  66 n.1 (1st  Cir. 1991)  (district               _______                                         -13-                                          13            from Guidelines  CHC may  be considered where  "the defendant            was pending trial or sentencing on another charge at the time            of the [offense of conviction]"); U.S.S.G.   4A1.3(e)  (same,            where  defendant  engaged in  "prior  similar adult  criminal            conduct not  resulting in  a criminal conviction");  see also                                                                 ________            United  States v. Shrader, 56  F.3d 288, 292  (1st Cir. 1995)            ______________    _______            (noting  appropriateness  of  "recidivist  determination"  to            departure decision); cf.  generally United States v.  Rivera,                                 ______________ _____________     ______            994 F.2d 942, 947-49  (1st Cir. 1993).  Because  the district            court's  CHC  departure  was  based  on  grounds specifically            provided for by the Guidelines, we defer to and find no error            in the  district judge's determination that the circumstances            of the defendant's criminal history were understated by a CHC            of II.  See Shrader, 56 F.3d at 292 (quoting Rivera, 994 F.2d                    ___ _______                          ______            at 951-52).                      2.  Guidelines Sentencing Range                          ___________________________                      The   district   court  departed   upward   from  a            Guidelines sentencing  range of 21  to 27 months  (assuming a            CHC  of IV), to impose  concurrent sentences of  45 months on            each conviction.   The upward departure was the equivalent of            an increase from a base offense level of 12 to a level of 17.            The departure was permissible.                                            ____________________            court should apply the version of the Guidelines in effect at            the time of sentencing, barring ex post facto problems).                                            __ ____ _____                                         -14-                                          14                      The  defendant's  suggestion   that  the   district            court's  departure  decision was  based  on  no  more than  a            dissatisfaction   with   the   Guidelines  sentencing   range            mischaracterizes and is  contradicted by the  record.  To  be            sure,  the district  court did  conclude that  the sentencing            range  was  unsatisfactory     that was  why  it  entertained            departure in the first place.  What is important is that,  as            the court's  lucid discussion at the  sentencing hearing made            clear, its "dissatisfaction" was  not based on some "personal            sense of inequity,"  United States v.  Wogan, 938 F.2d  1446,                                 _____________     _____            1449  (1st Cir.) (quoting United States v. Norflett, 922 F.2d                                      _____________    ________            50, 54 (1st Cir.  1990)), cert. denied, 502 U.S.  669 (1991),                                      ____________            but rather was  explicitly premised on  features of the  case            that arecontemplated asgrounds fordeparture bythe Guidelines.                      The defendant was sentenced under U.S.S.G.   2K2.1.            Application  note 16 to  that guideline  specifically permits            upward departure  where  the defendant's  underlying  offense            conduct "posed a substantial  risk of death or bodily  injury            to multiple individuals."  U.S.S.G.   2K2.1, comment. (n.16).            Here, the  district court expressly found  that the defendant            had  discharged  his two  firearms  in  a congested  shopping            center parking lot  just before he  was apprehended.   Noting            that the incident occurred during the middle of the day, that            the defendant had  run his  car into another  vehicle in  the            parking lot, and that  surrounding vehicles were riddled with                                         -15-                                          15            bullet holes, the court concluded that the case was factually            "out  of  the  heartland"  of the  applicable  guideline  and            therefore was  an appropriate candidate  for departure  under            application note 16.                      The grounds  relied upon by the  district court are            supported  by the record and are  specifically permitted as a            basis for departure  in the commentary to section 2K2.1.  The            district court's determination  that this case falls  outside            the heartland of cases encompassed by that guideline, as well            as the magnitude  of the  departure, were  appropriate.   See                                                                      ___            Rivera, 994 F.2d at 951-52.            ______            D.  Constitutionality of 18 U.S.C.   922(k)                _______________________________________                      Diaz-Martinez argues  that this is  a simple  state            weapons  case   which  Congress   had  no  power   under  the            Constitution to  federalize.  The firearms possession statute            under  which  he  was   convicted,  18  U.S.C.    922(k),  is            unconstitutional, he says, because it exceeds Congress' power            to  legislate under  the Commerce  Clause, as  interpreted in            United States v.  Lopez, 115 S. Ct. 1624 (1995).   We hold to            _____________     _____            the  contrary.   Whatever  the reach  of  Lopez, it  does not                                                      _____            invalidate 18 U.S.C.   922(k).                      In Lopez,  the Supreme Court found significant that                         _____            the  statute  at  issue in  that  case,  18 U.S.C.    922(q),            "contain[ed]  no jurisdictional  element which  would ensure,            through case-by-case inquiry, that the  firearm possession in                                         -16-                                          16            question affects interstate commerce."   115 S. Ct.  at 1631.            In contrast,  that  jurisdictional element  is present  here.            The statute under which Diaz-Martinez was convicted  contains            a specific requirement that  the firearm with the obliterated            serial number have been "shipped or transported in interstate            or  foreign commerce."  18  U.S.C.   922(k).   Here there was            proof  that  the  firearms  were  made  in  Brazil,  imported            originally to  Miami, and  altered to remove  the identifying            number  in  violation  of federal  law.    Section  922(k) is            readily   distinguishable   from  the   provision   that  was            invalidated  in  Lopez,  and  its enactment  did  not  exceed                             _____            Congress' authority under the Commerce Clause.                                         III            The Section 2255 Petition            _________________________                      The  dispositive  question   for  the   defendant's            attempt to  obtain relief  under section  2255 on  grounds of            ineffective assistance of counsel is whether the petition was            prematurely  filed.   Believing that  it was,  we affirm  the            district  court's  order   dismissing  the  petition  without            prejudice.                      The settled rule in  this circuit, as the defendant            acknowledges, is  that the  district court should  decline to            hear  claims  for  relief   based  on  allegedly  ineffective            assistance  of counsel  until the  direct appeal  is decided,            unless "extraordinary  circumstances" are demonstrated.   See                                                                      ___                                         -17-                                          17            United States v.  Buckley, 847  F.2d 991, 993  n.1 (1st  Cir.            _____________     _______            1988), cert. denied,  488 U.S. 1015 (1989); United  States v.                   ____________                         ______________            Gordon,  634 F.2d  638,  638-39 (1st  Cir.  1990) ("[I]n  the            ______            absence   of   extraordinary   circumstances,   the   orderly            administration of criminal justice precludes a district court            from considering a    2255 motion while review of  the direct            appeal  is still  pending . . . ." (internal  quotation marks            and citations omitted)).  The district court explicitly found            that "extraordinary  circumstances" did not  exist warranting            consideration of the defendant's section 2255 petition during            the  pendency in this court of the defendant's direct appeal.            The court thus dismissed the petition, without prejudice.                      There is no basis  for second guessing the district            court's    finding   of   an    absence   of   "extraordinary            circumstances."    Because   the  record   necessary  for   a            determination of the ineffective assistance claim has not yet            been factually developed, we decline to consider the issue at            this time,  preferring that  the district court  evaluate the            claim in the first  instance.  See United States  v. Natanel,                                           ___ _____________     _______            938 F.2d 302,  309 (1st  Cir. 1991), cert.  denied, 502  U.S.                                                 _____________            1079 (1992);  United States v.  Hunnewell, 891 F.2d  955, 956                          _____________     _________            (1st Cir.  1989).  The government concedes  that the petition            may  be refiled in the district court upon resolution of this            appeal.                                         -18-                                          18                      Affirmed.                      _________                                         -19-                                          19
