          United States Court of Appeals
                      For the First Circuit

No. 11-2399

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                         STEVEN CHAMBERS,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. William G. Young, U.S. District Judge]



                              Before

                   Howard, Selya and Thompson,

                         Circuit Judges.



     Raymond E. Gillespie on brief for appellant.
     Randall E. Kromm, Assistant United States Attorney, and Carmen
M. Ortiz, United States Attorney, on brief for appellee.



                          March 13, 2013
                SELYA,   Circuit    Judge.       Defendant-appellant        Steven

Chambers appeals from the district court's denial of his motion to

withdraw his guilty plea and to hold an evidentiary hearing in

connection therewith.        But professed ignorance is not always bliss

and, as we explain below, the district court did not err in denying

these motions.       By the same token, the defendant cannot make an end

run around a waiver of appeal provision to which he subscribed.

                The relevant facts are straightforward.           In October of

2009,     the    defendant   sold    cocaine    base   (crack    cocaine)    to   a

government cooperator as part of a controlled buy that took place

in   Roxbury,      Massachusetts.       A    federal   grand    jury    thereafter

returned an indictment charging the defendant with distributing

cocaine base.       See 21 U.S.C. § 841(a)(1).         The defendant initially

maintained his innocence.           On March 14, 2011, he shifted direction

and entered a guilty plea pursuant to a binding plea agreement (the

Agreement).        See Fed. R. Crim. P. 11(c)(1)(C).1

                Roughly seven weeks later, the district judge received a

letter from the defendant requesting leave to withdraw his plea

because he had felt "rushed, pressured and coerced."                   It was not

until some six months thereafter, however, that the defendant

actually filed a motion to vacate his guilty plea.                     Although he



      1
      A so-called "C-type" plea agreement is an agreement that, if
accepted by the court, binds both the parties and the court to act
in accordance with its terms.      See United States v. Rivera-
Martínez, 665 F.3d 344, 345 (1st Cir. 2011).

                                        -2-
requested an evidentiary hearing, he did not receive one; and in

due course the district court denied relief.

            The court proceeded to sentencing on November 21, 2011.

The Agreement bound the court to impose a term of immurement of not

less than 72 months but not more than 120 months.    Staying within

these parameters, the court sentenced the defendant to serve 90

months in prison.    This timely appeal ensued.

            In this venue, the defendant argues that his plea was

neither voluntary nor knowing because he did not realize at the

time he entered it that the sentencing guidelines were merely

advisory.   In an attempt to bolster this argument, he asserts that

during the change-of-plea colloquy the district court failed to

comply with Federal Rule of Criminal Procedure 11(b)(1)(M), which,

among other things, requires the court to ensure that the defendant

understands the court's obligation to calculate the guideline

sentencing range (GSR).     Before considering the merits of this

argument, we pause to iron out a potential wrinkle.

            The Agreement contains a waiver of appeal provision.

Such a provision forecloses appellate review of many claims of

error. See, e.g., United States v. Nguyen, 618 F.3d 72, 74-76 (1st

Cir. 2010); United States v. Gil-Quezada, 445 F.3d 33, 36-39 (1st

Cir. 2006).    But where, as here, a defendant enters a guilty plea

and agrees to waive his right to appeal, but then seeks to

challenge the district court's refusal to permit him to withdraw


                                 -3-
his plea, a reviewing court must "address the merits of [his]

appeal because his claim of involuntariness, if successful, would

invalidate both the plea itself and the waiver of his right to

appeal." United States v. Santiago Miranda, 654 F.3d 130, 136 (1st

Cir. 2011).   We start there.

          The defendant maintains that the court below erred in

denying his motion to vacate his guilty plea because he was not

aware of the advisory nature of the sentencing guidelines.      As a

result, he says, he was unable to pursue "his lawful right to seek

a variant sentence."

          This argument rests, in the first instance, on the

district court's ostensible failure to comply with the strictures

of Rule 11(b)(1)(M). While the defendant did not make this precise

argument below, he did argue more broadly that his plea was

involuntary and unknowing because he was unaware of the advisory

nature of the guidelines and thought that, unless he accepted the

plea bargain, a mandatory minimum sentence would apply.    For the

sake of argument, we assume, favorably to the defendant, that the

greater subsumes the lesser.    Accordingly, we put to one side the

government's insistence that the defendant's narrower contention is

forfeited and review that contention for abuse of discretion.    See

United States v. Doyle, 981 F.2d 591, 594 (1st Cir. 1992).

           A criminal defendant does not have an absolute right to

withdraw a guilty plea.   See United States v. Mercedes Mercedes,


                                 -4-
428 F.3d 355, 359 (1st Cir. 2005); United States v. Negrón-Narváez,

403 F.3d 33, 36 (1st Cir. 2005).          A previously tendered guilty plea

may   be   withdrawn   if    the   defendant      can     establish,   prior   to

sentencing, that a "fair and just reason" for doing so exists.

Negrón-Narváez,    403      F.3d   at     36   (quoting    Fed.   R.   Crim.   P.

11(d)(2)(B)).     In considering such a claim, an inquiring court

"should focus on whether any of Rule 11's core concerns have been

implicated, that is, whether the plea, when entered, was voluntary,

intelligent, and knowing."         Id.

            The plea in this case was not a one-sided bargain: in

exchange for it, the government agreed to refrain from filing an

information under 21 U.S.C. § 8512 and also agreed to cap any

sentence at a point significantly below the GSR that otherwise

might have been anticipated.3              Despite these concessions, the

defendant challenges the colloquy that accompanied his change of

plea.




      2
       A section 851 information carries with it the potential to
boost the defendant's offense level and, thus, increase his
sentence. See 21 U.S.C. § 851; see also Prou v. United States, 199
F.3d 37, 40 (1st Cir. 1999) (explaining the operation of this
provision).
      3
       To illustrate, the probation department calculated the
defendant's GSR, independent of the Agreement, as 151-188 months.
Moreover, the record reflects that the defendant would have faced
a GSR of 262-324 months had a jury convicted him after the
government filed a section 851 information.      In contrast, the
Agreement capped any possible sentence at 120 months.

                                         -5-
          His most specific challenge focuses on Rule 11(b)(1),

which   delineates   certain    requirements   applicable   to   plea

colloquies.   It provides in pertinent part:

          Before the court accepts a plea of guilty[,
          it] . . . must address the defendant
          personally in open court. . . . [and] inform
          the defendant of, and determine that the
          defendant    understands,    the    following:
          . . . the court's obligation to calculate the
          applicable sentencing-guideline range and to
          consider that range, possible departures under
          the   Sentencing    Guidelines,    and   other
          sentencing factors under 18 U.S.C. § 3553(a)
          . . . .

Fed. R. Crim. P. 11(b)(1)(M).

          The defendant concedes that the rule does not explicitly

require the district court to state to a defendant in haec verba

that the sentencing guidelines are advisory.     He urges, however,

that "the logical 'ramifications'" of the rule demand such a

statement.

          In terms, Rule 11(b)(1)(M) does not mandate a talismanic

statement, in formulaic language, as to the advisory nature of the

sentencing guidelines.   Because a district court need not follow a

precise script in ensuring the voluntariness of a defendant's

guilty plea, see United States v. Ward, 518 F.3d 75, 86 (1st Cir.

2008), we decline to read such a requirement into the rule.

          Nevertheless, Rule 11(b)(1)(M) does require the court to

put the guidelines into a meaningful perspective.    In the case at




                                 -6-
hand, the district judge's colloquy with the defendant satisfied

the imperatives of the rule.

             Relatedly, the defendant voices a more expansive plaint.

Refined to bare essence, this plaint boils down to the proposition

that he thought the guidelines were mandatory and therefore — but

for his plea — the district court could not have sentenced him

below the bottom of the GSR.     The record belies this proposition.

             During the change-of-plea hearing, the district court

explained the mechanics of the guidelines. The court also verified

that   the   defendant   understood   the   Agreement   and   its   various

provisions.     The court made it crystal clear that the defendant

could speak up if he did not understand anything and could change

his mind and stop the proceeding at any point before his plea was

accepted.     The court clarified that no mandatory minimum sentence

would apply regardless of whether the government filed a section

851 information.

             At the court's urging, the prosecutor explained the

various GSRs that might attach if the defendant decided to proceed

to trial.      To be sure, the defendant initially exhibited some

confusion about the sentence that the court could impose absent the

Agreement; but the court took pains to dispel that confusion.

Among other things, the court made pellucid that the sentencing

ranges were not mandatory and that it could impose a sentence below

the GSR if it thought such a sentence advisable.        Furthermore, the


                                  -7-
court emphasized that the ultimate sentencing decision was in its

sole discretion.

            The defendant told the court that he understood the

Agreement and acknowledged that he had the benefit of "an excellent

lawyer." He stated unequivocally that his reason for entering into

the Agreement was to avoid the GSR that probably would result if

the government were to file the section 851 information. After the

confusion    over   potential        sentencing        ranges       was    resolved,    the

defendant reiterated that he wished to proceed with his plea

because the capped ten-year maximum term of imprisonment limned in

the Agreement was attractive to him.

            Viewed against this background, the defendant's claim

that he misunderstood the advisory nature of the guidelines strikes

us — as it did the court below — as a piece of revisionist history.

An objectively reasonable appraisal of what transpired at the

change-of-plea hearing leaves no room to doubt that the defendant

understood    the   district        court's       statements.         Nothing      in   the

colloquy, fairly read, undermines the knowing and voluntary nature

of his plea.

            We think it telling that the defendant manifested a

strong   desire     to   avoid      the    higher      GSRs    that       the   prosecutor

outlined.      Equally     telling         is    the   defendant's          unconditional

acknowledgment      of   his     comprehension         of     the    district      court's

thorough     explanation       of    the        Agreement,     the        situation,    the


                                           -8-
guidelines, and the outcomes that might eventuate should he lose at

trial.   A defendant's statements during a change-of-plea colloquy

ought to be binding upon him in the absence of good cause to

disregard them. See United States v. Gates, ___ F.3d ___, ___ [No.

10-2163, slip op. at 24]; Santiago Miranda, 654 F.3d at 138.            The

defendant has not shown good cause here.

          To cinch matters, an examination of Rule 11's core

concerns fully supports a denial of the defendant's motion.            Such

an inquiry requires us to examine the totality of the circumstances

and to give weight to the timing of the attempted plea retraction,

the plausibility of the proffered reason for withdrawing the plea,

and the presence or absence of a claim of innocence.               Mercedes

Mercedes, 428 F.3d at 359.

          In   this   case,   it   was   within   the   district    court's

discretion to find that these factors, collectively, counseled in

favor of rejecting the attempt to withdraw the plea.               The time

factor is somewhat of a wash.      While there was a seven-month delay

between the defendant's guilty plea and his filing of a formal

motion to withdraw it, the defendant did indicate, within a matter

of seven weeks, that he was having second thoughts.         As we already

have explained, the proffered reason for revoking the plea is




                                   -9-
implausible.     And, finally, the defendant's motion did not embody

a claim of innocence.4

           We    have   said   before,   and    today   reaffirm,     that   "a

defendant's lament that he misjudged the consequences of his guilty

plea, without more, is not a fair and just reason for setting the

plea aside."     United States v. De Alba Pagan, 33 F.3d 125, 127 (1st

Cir. 1994).     It follows that a defendant may not "withdraw his plea

merely because he discovers long after the plea has been accepted

that his   calculus     misapprehended    the    .   . .    likely   penalties

attached to alternative courses of action."                  Brady v. United

States, 397 U.S. 742, 757 (1970).

           These tenets are dispositive here.              The district court

did not err in denying the defendant's motion to vacate his guilty

plea.

           Relatedly, the defendant assigns error to the district

court's refusal to convene an evidentiary hearing on his plea-

withdrawal request.       In such a situation, we review a district

court's denial of a motion for an evidentiary hearing for abuse of

discretion.      See Santiago Miranda, 654 F.3d at 137.              Appellate

review starts with the premise that "a [criminal] defendant is not


     4
       On appeal, the defendant optimistically suggests that the
record contains "an implicit assertion of legal innocence." This
suggestion appears to elevate hope over reason. See Gates, ___
F.3d at ___ [No. 10-2163, slip op. at 23-24].       The defendant
expressly admitted his guilt both in the Agreement and during the
change-of-plea hearing. His motion to vacate could have, but did
not, repudiate these admissions.

                                   -10-
entitled to an evidentiary hearing on every motion he chooses to

file." United States v. Gonzalez, 202 F.3d 20, 29 (1st Cir. 2000).

           In   connection   with    an    attempted   plea    retraction,    a

district court is required to grant a motion for an evidentiary

hearing only if, at a bare minimum, "the defendant alleges facts

which, if taken as true, would entitle him to relief."              Santiago

Miranda, 654 F.3d at 136 (internal quotation marks omitted).                 No

evidentiary hearing is needed if the defendant's allegations "are

contradicted by the record or are inherently incredible and to the

extent that they are merely conclusions rather than statements of

fact."   Id. at 137 (internal quotation marks omitted).

           As noted above, the defendant's importuning that his plea

was involuntary and unknowing is contradicted by the record.             The

district judge had everything that he needed in the paper record to

determine whether the defendant's guilty plea should be vacated.

Consequently, it was within his discretion to deny the defendant's

motion for an evidentiary hearing.

           The defendant's next claim of error is no more robust.

The Agreement contains a waiver of appeal provision. The defendant

concedes that his appeal falls within the literal scope of this

provision, but asserts that the waiver of appeal is nugatory

because the Agreement itself is invalid.               As a fallback, he

contends   that   enforcement   of    the    waiver    would   result   in   a

miscarriage of justice.


                                    -11-
            A waiver of appeal in a criminal case, entered knowingly

and voluntarily, is generally enforceable. See Nguyen, 618 F.3d at

74; United States v. Teeter, 257 F.3d 14, 24 (1st Cir. 2001).                    To

qualify, the waiver must be stated clearly and its scope must be

definite.       See Teeter, 257 F.3d at 24.        In addition, the district

court    must    "question    the    defendant     specifically    about    [his]

understanding of the waiver provision and adequately inform [him]

of its ramifications."        Id.     Even if these criteria are satisfied,

a waiver of appeal may be disregarded if enforcing it would cause

a miscarriage of justice.           Id. at 25.

            We need not tarry over the defendant's argument that the

waiver of appeal is nugatory because the Agreement is invalid.

While such an argument would have considerable bite if its premise

were correct, see United States v. Ortiz-García, 665 F.3d 279, 285

(1st Cir. 2011); Santiago Miranda, 654 F.3d at 136, we already have

defenestrated the defendant's claim that the Agreement itself is

invalid. The defendant's piggybacked claim of error is, therefore,

untenable.

            This leaves the defendant's more general asseveration:

that    enforcement    of    his    waiver   of   appeal   would   result   in   a

miscarriage of justice.            To determine whether a waiver of appeal

effects a miscarriage of justice, we consider "the character,

clarity, and gravity of the claim of error, its impact on the

defendant, any possible prejudice to the government that might


                                        -12-
accompany a refusal to honor the waiver, and the extent to which

the defendant can fairly be said to have acquiesced in the result."

Nguyen, 618 F.3d at 75.    The miscarriage of justice exception is

strong medicine. Consequently, it should "be applied sparingly and

without undue generosity."       Teeter, 257 F.3d at 26.   A showing of

garden-variety    error   will     not    suffice:   "[t]riggering   the

miscarriage of justice exception requires, at a bare minimum, an

increment of error more glaring than routine reversible error."

Nguyen, 618 F.3d at 75.

          To the extent that the defendant bases his miscarriage of

justice claim on his supposed misapprehension of the advisory

nature of the sentencing guidelines, our previous discussion is

dispositive.    What remains — his insistence that the government's

case against him "was less than overwhelming" — is nothing more

than empty rhetoric, debunked by the defendant's own admissions

during the change-of-plea colloquy.        The short of it is that the

defendant has not shown any error, let alone the glaring strain of

error needed to fuel a miscarriage of justice finding.

          There is one loose end. In advocating for the withdrawal

of his guilty plea, the defendant seems to suggest that he received

ineffective assistance of counsel.        Because the waiver of appeal

provision contains an explicit exception for challenges based on

ineffective assistance of counsel, we comment briefly on this

suggestion.    See United States v. McCoy, 508 F.3d 74, 77 (1st Cir.


                                   -13-
2007) (explaining that "[e]ven a knowing and voluntary appeal

waiver only precludes appeals that fall within its scope").

           The defendant's ineffective assistance claim (to the

extent that one exists) was not raised below.               Although "[t]he

Sixth   Amendment   guarantees    criminal     defendants    the   right    to

effective assistance of counsel," Scarpa v. Dubois, 38 F.3d 1, 8

(1st Cir. 1994), a defendant lacks "an absolute right" to bring

such a "claim for the first time on direct review of a conviction

or sentence," United States v. Rivera-Orta, ___ F.3d ___, ___ [No.

11-1927, slip op. at 9].

           "We   have    held   with   a   regularity   bordering   on     the

monotonous that 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. Mala, 7 F.3d 1058, 1063 (1st

Cir. 1993).   This principle governs here.

           We need go no further. For the reasons elucidated above,

we uphold the judgment of the district court; without prejudice,

however, to the right of the defendant, should he so choose, to

raise an ineffective assistance of counsel claim by way of a

petition for collateral review.        See 28 U.S.C. § 2255.



So Ordered.




                                   -14-
