                  Not For Publication in West's Federal Reporter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. 03-2565

                        UNITED STATES OF AMERICA,

                                   Appellee,

                                        v.

                             DAVID LEE BENNETT,

                           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,

                Torruella and Howard, Circuit Judges.



     Marie E. Hansen, with whom Willey Law Offices was on brief,
for appellant.
     Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellee.



                                 July 7, 2004
              Per Curiam.         David Bennett appeals his convictions and

ensuing sentence for (1) "travel[ing] in interstate or foreign

commerce . . . with the intent to kill, injure, harass, or

intimidate another person [with the result of] plac[ing] that

person    in       reasonable         fear   of    [death]    or    serious   bodily

injury    .    .   .    .";     and   (2)    "ship[ping]     or   transport[ing]    in

interstate or foreign commerce . . . any firearm or ammunition

[after having been convicted in any court of a misdemeanor crime of

domestic violence]."             18 U.S.C. §§ 2261A(1) and 922(g)(9).               We

affirm.

                                             I.

              Bennett was a frequent user of methamphetamine who often

accused his wife of infidelity.                    In January 2002, Bennett was

convicted of a misdemeanor crime of domestic violence against his

wife. Following this incident, Bennett's wife –- fearing Bennett's

release   from         prison    –-   gathered     the   children    and   fled   from

California to a relative's home in Maine.                     On January 24, 2002,

Bennett was released from prison on the condition that he have no

contact with his wife. Three days later, Bennett's wife phoned him

to tell him that she and the children had left for (and arrived

safely in) Maine.             During the course of this conversation, she

provided Bennett with the address of her current location. Bennett

thereafter wired money so that his wife could rent an apartment.




                                             -2-
          On January 29th, Bennett's wife obtained a protection

order   from      the   Maine     courts.          In    a   subsequent       telephone

conversation -- Bennett apparently repeatedly phoned his wife –-

Bennett's wife told Bennett to stay out of Maine because the

marriage was finished.            Despite this admonition, Bennett left

California for Maine on or about February 8th after having told two

friends that he planned to save his marriage.                   On the way, Bennett

stopped in Utah to visit his father and acquired his father's

handgun on the pretext that he needed protection.                         Bennett then

traveled across the country with the gun.                       Bennett's wife was

notified of these events by Bennett's sister.

             On   the   night    that     Bennett       arrived      in   Maine,    state

troopers observed       him     driving     past    the      place    where   his    wife

formerly had been staying.           The troopers stopped Bennett, served

him with the Maine protection order, and told him to leave.

Bennett's wife thereafter took the family to a local shelter.

Bennett was arrested the next day a short distance from the

children's school. Police located a gun and ammunition in the back

of Bennett's truck.

             Bennett    was     charged    in   a   two-count        indictment     with

interstate stalking ("Count One"), see 18 U.S.C. § 2261A(1), and

possession     of   a   firearm     after       having       been    convicted      of   a

misdemeanor crime of domestic violence ("Count Two"), see id. §

922(g)(9).     Bennett appeared in federal district court on December


                                          -3-
6, 2002 ("the first Rule 11 proceeding"), apparently to plead

guilty to Count One in exchange for the government's agreement to

dismiss Count Two.     But, after Bennett disputed the requisite

intent for Count One, the court rejected the proffered plea.     Four

days later, before a different judge, Bennett pleaded guilty to

Count Two ("the second Rule 11 proceeding") and waived his right to

a jury trial on Count One.    Bennett subsequently was found guilty

on Count One.      At sentencing, the court denied Bennett's oral

motion to withdraw his guilty plea to Count Two.         The relevant

particulars are set forth below.

          A.    The First Rule 11 Proceeding

          On December 6, 2002, Bennett appeared before Judge Singal

and proffered a guilty plea to Count One.      Trimmed of parts not

here pertinent, the following colloquy occurred:

          Court:        He's pleading guilty to Count One?

          D. Counsel: And Count Two will be dismissed.

          Court:        Is that what the agreement is?

          Govt.:        Yes, Your Honor. We had come here
                        today with the expectation of the
                        opposite, but moments before we
                        entered court, [defense counsel]
                        informed me that Mr. Bennett was
                        willing to plead guilty to the
                        more serious of the two.
          . . .

          Court:        Mr. Bennett, have you pleaded
                        guilty to . . . Count One of the
                        indictment because you are, in
                        fact, actually guilty?


                                 -4-
Bennett:   Yes.

Court:     Do you have any doubt about that?

Bennett:   Not –- not the harassment and
           intimidation. But to the killing,
           I –- I didn't intend to kill or
           injure anyone.

Court:     What you're telling me is you
           traveled in interstate commerce
           with   intent   to   harass and
           intimidate your spouse?

Bennett:   Yes.

Court:     But you didn't go there with the
           intent to kill or injure; is that
           correct?

Bennett:   No.

. . .

Court:     Ms. Malone [the prosecutor], I
           note that the statute involved
           here, Section 2261[A], deals with
           the –- has the wording of, quote,
           with the intent to kill, injure,
           harass, or intimidate . . . [but]
           your indictment reads it in the
           conjunctive.

Govt.:     Yes,   Your  Honor.     It's   my
           understanding of the law that the
           government is permitted to plead
           in the conjunctive and prove in
           the disjunctive. . . .

Court:     I agree . . . . Do you disagree,
           [defense counsel]?

D. Counsel: I do not, Your Honor.

. . .

Court:      All right. Mr. Bennett, you told
            me that you heard all of their

                    -5-
           evidence. Is there anything that
           Ms. Malone indicated that you
           disagree with?
. . .

Bennett:   I disagree with saying that my
           wife and I –- we had a little
           confrontation on the phone for
           about a minute, and that was it.
           I changed the subject. And they
           knew I was coming to Maine.
. . .

Court:     All right.    Did you, in fact,
           cross state lines with the intent
           to harass and intimidate your
           spouse?

Bennett:   Yes.

Court:     Do you have any doubt about that?

Bennett:   Truthfully, I didn't plan to harm
           anyone, Your Honor.   I had pure
           love in my heart.

Court:     You had what?

Bennett:   I had pure love in my heart for my
           family.

Court:     All right. So what you're telling
           me is that you didn't travel to
           cause any harm –

Bennett:   No.

Court:     –- in any way?

Bennett:   No, I did not.

Court:     All right.

Bennett:   I didn't.

Court:     Thank you.    I'm not going to
           accept this plea. He doesn't –



                    -6-
          Bennett:    I didn't want to hurt anyone.

          Court:      That's –- don't say any more. Ms.
                      Malone, I can't accept this plea.

          B.   The Second Rule 11 Proceeding

          Four days later, on December 10, 2002, Bennett appeared

before Judge Hornby both to plead guilty to Count Two and to waive

his right to a jury trial on Count One.   Trimmed of parts not here

pertinent, the following colloquy occurred:

          Court:       Have you used any drug or alcohol
                       in the last 24 hours?

          Bennett:     No.

          Court:       Do you feel you understand what's
                       happening in these proceedings?

          Bennett:     Yes, I do.

          Court:       These two lawyers have just told
                       me that you want to change your
                       plea   to   Count   Two   of   the
                       indictment,     the     indictment
                       concerning   possession    of  the
                       weapon, is that correct?

          Bennett:     Yes, it is.

          . . .

          Clerk:       Sir, how do you now plead to Count
                       Two of the indictment, guilty or
                       not guilty?

          Bennett:     I plead guilty.

          . . .

          Court:       First of all, sir, have you
                       pleaded   guilty   to  Count   Two
                       because you are actually guilty of
                       that crime?

                                -7-
Bennett:   Yes.

. . .

Court:     Mr. Bennett, did you receive a
           copy of the indictment?

Bennett:   Yes, I did.

Court:     Did you have enough time to
           discuss the charges with your
           lawyer?

Bennett:   Yes.

Court:     Did   he  explain to  you the
           elements . . . as well as the
           penalties . . .?

Bennett:   Yes.

Court:     Mr. Bennett, you're charged in a
           two-count indictment.      You're
           entering a plea at this time only
           to Count Two, so that's the one
           I'm going to go over with you.
           [explains the charge] Do you
           understand this charge?

Bennett:   Yes.

Court:     [explains the penalties] Do you
           understand all of these penalties?

Bennett:   Yes, I do.

Court:     Do you understand that you have
           the right to continue to plead not
           guilty to this charge?

Bennett:   Yes.

Court:     [explains trial procedure] If I
           accept your guilty plea, you will
           have given up your right to a
           trial and the other rights that
           I've just described to you, and
           there will be no trial on this


                    -8-
           count of the indictment.     Do you
           understand?

Bennett:   Yes.

Court:     I will proceed to enter a judgment
           of guilty on this charge, and I
           will sentence you on the basis of
           your guilty plea on this charge.
           And if all of that happens, you
           will have virtually no right of
           appeal from your conviction on
           Count Two. Do you understand?

Bennett:   Yes, I do.

. . .

Court:     In light of all that I've just
           explained to you, do you still
           choose to plead guilty to Count
           Two?

Bennett:   Yes, I do.

[recitation of evidence by the government]

Court:      Mr. Bennett,     did you hear the
            prosecutor .     . . describe the
            evidence that   he would produce if
            Count Two did   proceed to trial?

Bennett:    Yes.

Court:      Is there anything he told me that
            you disagree with?

Bennett:    No.

Court:      Is the information he gave me true
            to your personal knowledge?

Bennett:    Yes, it is.

Court:      Very well. I find that there is a
            factual basis for the guilty plea
            to Count Two of the indictment.
            Mr.    Bennett,    has    anybody


                     -9-
                      threatened you or tried to force
                      you to plead guilty?

          Bennett:    No.

          Court:      Do you have any plea agreement,
                      written   or  verbal,   with   the
                      prosecutor or any other agreement
                      about the sentence or about any of
                      the other charges here?

          Bennett:    No.

          Court:      Do you understand, then, that so
                      far as sentencing is concerned on
                      Count Two . . . the authority to
                      determine the sentence stays with
                      me as the Judge? And . . . if the
                      sentence turns out to be more
                      severe than you hoped for, you'll
                      have no right to withdraw your
                      guilty plea.    You'll still be
                      bound by it. Do you understand?

          Bennett:    Yes, I do.

          . . .

          Court:      Has anybody made any promises to
                      you to get you to plead guilty to
                      Count Two?

          Bennett:    No.

          Judge Hornby thereafter accepted Bennett's guilty plea to

Count Two and granted his request to waive trial by jury on Count

One.

          C.   Subsequent Proceedings

          On December 16, 2002, a bench trial was held before Judge

Hornby on Count One (the interstate-stalking charge). Judge Hornby




                               -10-
found Bennett guilty, explaining the requisite intent element as

follows:

           There are four essential elements to be
           addressed, as has been recognized . . . . The
           real heart of the case, as the lawyers have
           recognized, is the intent question, and the
           requirement of the statute is that . . . the
           defendant traveled in interstate commerce with
           the intent to kill, injure, harass, or
           intimidate another person. . . . I don't find
           beyond a reasonable doubt that the defendant
           intended to kill or injure . . . but . . . I
           do find beyond a reasonable doubt that he
           intended to harass her, and that the travel in
           interstate    commerce     was    with    that
           intent . . . . Her acceptance of money from
           him, coming from a community property state,
           like California, and giving him an address to
           send it do not contradict the foregoing.

           At the sentencing hearing on November 5, 2003, Bennett's

new counsel orally moved to withdraw Bennett's guilty plea to Count

Two (the firearms charge):

           [When my client appeared before Judge Singal,
           he] agreed that . . . the harassment or
           intimidation portion of the statute was what
           he could agree to for factual recitation
           purposes, but not anything dealing with intent
           to harm or injure . . . . Judge Singal
           rejected the plea offer. And ultimately . . .
           the matter was before you [Judge Hornby] for
           trial on both counts prior to the trial.
           Apparently a plea on Count Two, the gun
           charge, was tendered to you, and accepted by
           you, . . . and you [later] found him guilty on
           Count One with specific findings that it was a
           harassment or intimidation activity. Nothing
           was involved, I understand, on your findings
           dealing with killing or injuring anyone,
           [which was] exactly consistent with what [the
           defendant] told Judge Singal. I only recently
           had   this   transcript   of   the   Rule   11
           proceedings . . . . I believe that the reason


                               -11-
           for the withdrawal of plea to Count Two is
           important because factually, what the trial
           did was confirm the defendant's plea to Count
           One before Judge Singal on the mens rea issue.
           My reading of the transcript before Judge
           Singal . . . was that he apparently did not
           believe that there was an adequate mens
           rea . . . but a clear reading of it suggests
           that . . . my client did accept at that time
           the harassment, intimidation portion of the
           statute, which was adequate for a plea.

           Judge Hornby denied the motion, explaining his ruling as

follows:

           The defendant has pleaded guilty to Count Two
           in front of me, [and] there's no showing that
           the guilty plea was anything other than
           knowing,   voluntary,  intentional,   with  a
           factual basis for the plea.       There's no
           suggestion of innocence, there's no reason to
           grant a motion to withdraw that guilty plea.
           If there was some problem with the failed
           attempt to plead guilty to Count One before
           Judge Singal, and if there was some agreement
           that was beneficial to the defendant at that
           time, the proper remedy was to try to
           resurrect that plea and to persuade Judge
           Singal to accept the plea . . . . That did
           not happen. So what I have here is a valid
           guilty plea to Count Two without any grounds
           to withdraw it.

Bennet thereafter was sentenced to 60 months' imprisonment on Count

One with a concurrent term of 96 months' imprisonment on Count Two.

This appeal followed.

                                   II.

           We   are   presented   with    seven   issues   on   appeal:   (1)

"whether [Judge Singal] erred as a matter of law in rejecting [the

defendant's] plea to Count One on December 6, 2002"; (2) "whether



                                   -12-
the U.S. Attorney's Office breached the plea agreement"; (3)

"whether [Judge Hornby] erred as a matter of law in accepting the

plea to Count Two . . . in violation of the plea agreement"; (4)

"whether [Judge Hornby] erred as a matter of law in finding [the

defendant] guilty . . . of Count One"; (5) whether [Judge Hornby]

erred as a matter of law in the sentencing of [the defendant]"; (6)

"whether [Judge Hornby] erred as a matter of law in denying [the

defendant's] request to withdraw his guilty plea to Count Two; and

(7) "whether [the defendant] was denied effective assistance of

counsel."    We handle each in the order previewed.

            First, regarding Judge Singal's rejection of Bennett's

proffered guilty plea to Count One, we note at the outset that

"[i]t is well settled that a defendant does not have an absolute

right to plead guilty."    United States v. Ventura-Cruel, 356 F.3d

55, 59-60 (1st Cir. 2003) (citing Santobello v. New York, 404 U.S.

257, 262 (1971)).    Indeed, "[b]efore entering judgment on a guilty

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

the plea."      Fed. R. Crim. P. 11(b)(3).      Here, Judge Singal

supportably determined that a factual basis for the plea did not

exist.1     Having already denied an intent to kill or injure, the




     1
      The relevant criminal statute criminalizes "travel[ing] in
interstate or foreign commerce . . . with the intent to kill,
injure, harass, or intimidate another person" when such travel
places that person in reasonable fear of death or serious bodily
injury. 18 U.S.C. § 2261(A) (emphasis added).

                                 -13-
following exchange suggests that Bennett also denied having had an

intent to harass or intimidate:

          Court:        Do you have any doubt about [your
                        intent to harass and intimidate]?

          Bennett:      Truthfully, I didn't plan to harm
                        anyone, Your Honor.   I had pure
                        love in my heart.

          Court:        You had what?

          Bennett:      I had pure love in my heart for my
                        family.

          Court:        All right. So what you're telling
                        me is that you didn't travel to
                        cause any harm –

          Bennett:      No.

          Court:        –- in any way?

          Bennett:      No, I did not.

          Court:        All right.

          Bennett:      I didn't.

          Court:        Thank you.    I'm not going to
                        accept this plea. He doesn't –

          Bennett:      I didn't want to hurt anyone.

          Bennett now argues that his denial of an intent to harm

should be construed only as a denial of an intent to kill or injure

and not as a denial of an intent to intimidate or harass.2      We

reject this argument.    The definition of harm is not confined to

adverse physical effects such as physical injury or death; there is

     2
      Trial counsel neither objected nor proffered a similar
interpretative argument following Judge Singal's rejection of the
plea.

                                -14-
a mental component as well.   See Webster's Third New International

Dictionary 1034 (1993) (defining "harm" as "physical or mental

damage").   Bennett's denial of any intention to harm together with

his assertion of "pure love" suggested a denial of all culpable

intent, especially since these responses came immediately after

having been asked specifically about his intent to harass or

intimidate. Accordingly, we cannot say that Judge Singal committed

reversible error in rejecting the plea.   See Santobello, 404 U.S.

at 262 ("A court may reject a plea in exercise of sound judicial

discretion."); see also Ventura-Cruel 356 F.3d at 60 (quoting with

approval Rule 11's historical advisory-committee notes, which state

that the "normal consequences of a determination that there is not

a factual basis for the plea would be for the court to set aside

the plea and enter a plea of not guilty").

            Bennett's second argument –- that the United States

Attorney's Office breached its plea agreement –- is without merit.

Because "[e]very plea agreement is subject to court approval,"

United States v. Lopez, 944 F.2d 33, 36 (1st Cir. 1991), no rights

remained under the proffered plea agreement once Judge Singal

rejected Bennett's guilty plea to Count One.        See id. at 37

("Absent a showing that the government gained unfair advantage as

a result of the agreement . . ., once a plea agreement has been

rejected by the court the government is under no obligation to

abide by its terms." (citations omitted)). No unfair advantage has



                                -15-
been shown here. Indeed, in the second Rule 11 proceeding, Bennett

himself made clear that, in pleading guilty to Count Two, he was

not relying on –- and that, in fact, there did not exist -- a plea

agreement with the government.3

          Similarly without merit is Bennett's argument that Judge

Hornby erred in accepting his guilty plea to Count Two.   Resting on

our discussion of the preceding two issues as well as the relevant

colloquy, see supra, we are convinced that no legitimate question

has been raised about any Rule 11 or related concern.

          Bennett spends but one short paragraph elaborating his

next argument –- that Judge Hornby "erred as matter of law in

finding [him] guilty . . . of Count One."     There is a "settled

appellate rule that issues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are deemed

waived." United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

In any event, as best we can tell, Bennett is arguing that Judge

Hornby's findings are inconsistent with those of Judge Singal. But

that argument incorrectly is premised on the notion that Judge

Singal (in the first Rule 11 proceeding) "found that the elements

of the [criminal] statute were not met."   Judge Singal did not so

find; rather, he found that Bennett had not admitted such elements.

     3
      Specifically, Judge Hornby asked Bennett whether he had "any
plea agreement, written or verbal, with the prosecutor or any other
agreement about the sentence or about any of the other charges
here" and whether "anybody [had] made any promises to [him] to get
[him] to plead guilty to Count Two." (emphasis added). Bennett
answered "no" to both questions.

                               -16-
            Bennett's Eighth Amendment-based sentencing argument is

premised on "the error of the district court in not accepting the

plea to Count One, the government's breach of the plea agreement,

the district court's error in accepting the plea to Count Two and

in finding the defendant guilty on Count One."                  Because we have

rejected each and every premise on which Bennett relies, we find no

merit to this argument, which was in any event not raised below.

See United States v. McCormack, --- F.3d ---, 2004 WL 1244467 at *6

(1st Cir. 2004) (noting that a sentencing argument not raised below

is reviewed only for plain error).               Bennett also argues that he

should   have    been   (1)    awarded    an    acceptance-of-responsibility

adjustment because he "attempt[ed] to accept responsibility for

Count One . . . [and] did, in fact, accept responsibility by

pleading [guilty]       to    Count   Two";     and   (2)   granted    a   downward

departure       on   the      grounds      of     "the      totality       of   the

circumstances . . ., diminished capacity, hyper-sexual and hyper-

religious behavior, and fatigue."               Both of these arguments were

presented to –- and rejected by –- Judge Hornby at sentencing.4


     4
      Regarding the alleged acceptance of responsibility with
respect to Count One, Judge Hornby recited the relevant portions of
the first Rule 11 colloquy and then concluded as follows: "Clearly,
[Judge Singal] couldn't accept the plea. The defendant had denied
responsibility for having any kind of intent, even to harass or
intimidate his wife; he had nothing but pure love in his heart. He
did not accept responsibility then. He went to trial as was his
right, put the government to its proof." With respect to Count
Two, Judge Hornby determined that "the two counts have to be
ultimately considered together [and], while it's true that he did
plead guilty to Count Two, . . . given the overall offense conduct
that I'm analyzing under the guidelines, I do not find acceptance

                                        -17-
We cannot say that Judge Hornby clearly erred in refusing to adjust

the sentence based on acceptance of responsibility, see United

States v. Muriel, 111 F.3d 975, 982 (1st Cir. 1997) ("A defendant

who pleads guilty is not entitled to a downward adjustment for

acceptance    of   responsibility   as     a   matter   of   right[;]   .   .   .

[w]hether a defendant has accepted responsibility for the offense

is a fact-dominated issue, and therefore we review the district

judge's ruling for clear error." (citations omitted)), and we have

no jurisdiction to review his discretionary decision not to depart,

see United States v. Morrison, 46 F.3d 127, 130 (1st Cir. 1995)

(noting that, because a "refusal to depart cannot constitute an

incorrect application of the Guidelines, . . . no appeal lies from

a discretionary refusal to depart . . . [unless] the decision not

to depart is based on the sentencing court's assessment of its lack

of authority or power to depart" (citations and quotation marks

omitted)).

             Sixth, there was neither legal error nor a "demonstrable

abuse of discretion" in the denial of Bennett's motion to withdraw


of responsibility." See U.S.S.G. §3E1.1 (2002).
     Regarding the departure issues, Judge Hornby concluded that
(1) "the significantly reduced mental capacity was caused by [the
voluntary use of drugs and other intoxicants]"; (2) "the facts and
circumstances of the offense indicate a need to protect the
public"; (3) "the[se] circumstances . . . counsel against granting
a departure here [on the discouraged ground of] mental and
emotional conditions"; and (4) "under . . . the general catch-all
provision, I likewise find no reason to depart here, even if I had
the authority, [because] the guideline range is very appropriate
given the circumstances of what the defendant has done." See id.
§§5H1.3 and 5K2.13.

                                    -18-
his guilty plea to Count Two.             See United States v. Martinez-

Molina, 64 F.3d 719, 732 (1st Cir. 1995).               Insofar as Bennett's

argument in this regard is based on the other issues raised in his

appeal, we have nothing to add other than to note that we are in

complete agreement with Judge Hornby's careful analysis on this

point.     See supra.

             Finally, this court has held "with a regularity bordering

on   the     monotonous   that   fact-specific        claims    of   ineffective

assistance cannot make their debut on direct appeal of criminal

convictions, but, rather, must originally be presented to, and

acted upon by, the trial court."           United States v. Mala, 7 F.3d

1058, 1063 (1st Cir. 1993) (collecting cases).                  Absent the rare

occasion where, on direct appeal, the record is sufficiently clear

to   allow    reasoned    consideration    of   the    ineffective-assistance

claim, see, e.g., United States v. Natanel, 938 F.2d 302 (1st Cir.

1991),     "[t]he   preferable   vehicle    for   such    [a]    claim[]   is   a

collateral proceeding under 28 U.S.C. § 2255, in which the parties

and the district court can address factual matters relevant to the

issue," United States v. Genao, 281 F.3d 305, 313 (1st Cir. 2002)

(citation omitted).        Bennett's ineffective-assistance claim does




                                    -19-
not fall within the narrow exception;5 accordingly, he must pursue

it in the traditional fashion.

          Affirmed.




     5
      Among other problems, Bennett points to former counsel's
"failure to investigate all avenues proposed by the defendant" but
then neglects to identify any evidence in the record indicating
what, in fact, defendant had proposed or what, in fact, former
counsel had considered (and, perhaps, rejected).

                                 -20-
