               Not for Publication in West's Federal Reporter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. 04-1068

                             UNITED STATES,

                                Appellee,

                                     v.

                     ALCIDES GARCIA-MARCUCCI,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Salvador E. Casellas, U.S. District Judge]


                                  Before

                       Selya, Circuit Judge,
                   Stahl, Senior Circuit Judge
                    and Lynch, Circuit Judge.



     Alcides Garcia-Marcucci on brief pro se.
     H.S. Garcia, United States Attorney and Nelson Perez-Sosa,
Assistant U.S. Attorney, on brief for appellee.



                              July 5, 2005
            Per Curiam.       Appellant, Alcides Garcia-Marcucci,               pled

guilty to one count of conspiracy to distribute one hundred fifty

kilograms or more of cocaine in violation of 21 U.S.C. § 846 and

one count of laundering monetary instruments in violation of 18

U.S.C.    1956(a)(1).      He     now    appeals   both    his   conviction      and

sentence.

            Appellant first argues we should vacate his conviction

because    his    guilty   plea       was   rendered   involuntary      when     the

government breached its agreement to recommend the bottom of the

guideline range of 188-235 months and to refrain from "us[ing] any

information      concerning     his     alleged   leadership     to   enhance    the

sentence."       He further argues that the district court erred in

failing to bring about the disclosure of the terms of the agreement

during the change of plea hearing.

            As appellant is unable to establish there was a plea

agreement, both of these arguments fail.                  See United States v.

Riggs, 287 F.3d 221, 224 (1st Cir. 2002); see also United States v.

Saxena, 229 F.3d 1, 5 (1st Cir. 2000).                 Appellant concedes he

never entered into a written plea agreement with the government,

and the rules of the United States District Court for the District

of Puerto Rico require that such agreements be in writing.                       See

D.P.R. R. 418 (2002).           Moreover, the record evidence does not

support the existence of such an agreement.                The record supports

only that the government stipulated that it would seek an offense


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level of 38 and a criminal history category of I, would withdraw

its   851   notice,   and   would   "not   seek   any   enhancement   for   a

supervisory role or leadership capacity."           These stipulations do

not resemble the terms of the alleged plea agreement, and the

government complied with each of them.             To be sure, appellant

provides an affidavit in which he claims that his counsel promised

him that he would "receive at least the bottom of the guideline

range of 188 to 235 months" if he pled guilty.              As he did not

properly raise this factual claim before the district court,

however, he has forfeited any right to appeal on this ground.1          See

United States v. Argentine, 814 F.2d 783, 790 (1st Cir. 1987).

            Appellant further argues that even if there was no plea

agreement, his plea was involuntary because it was based upon his

counsel's false assurances that the government would recommend a

sentence at the lower end of the Guidelines range.              This claim

requires proof of facts outside the present record, as it centers

on alleged intimate discussions between him and his counsel.

Accordingly, it is not appropriate for direct appeal and will not




      1
      While appellant raised a somewhat similar issue in his
motion to set aside and/or withdraw guilty plea that he filed in
the district court, the district court never considered it,
choosing to hold the motion in abeyance while it determined whether
the defense counsel that filed the motion should be disqualified
due to conflict of interest. Ultimately, the court disqualified
the counsel, and subsequent defense counsel withdrew the motion at
the sentencing hearing.

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be considered.         See, e.g, United States v. Mala, 7 F.3d 1058, 1063

(1st Cir. 1993).

                 Lastly,     in     response     to   our   invitation        to   file

supplemental briefing on the subject, appellant raises a claim of

Booker error.         Appellant did not preserve this claim below, so we

review for plain error.2             See United States v. Antonakopoulos, 399

F.3d       68,   77   (1st   Cir.    2005).      Appellant's   claim     is    largely

identical to his involuntary plea claim and, therefore, fails for

the above stated reasons. Thus, he is unable to establish that the

Booker error affected his substantial rights.                  See id. at 78.

                 Accordingly, we affirm.




       2
        While appellant argued that the district court violated
Apprendi in connection with his erstwhile motion to withdraw his
plea, this does not suffice to preserve his Booker claim because he
later withdrew the motion.

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