                Not For Publication in West's Federal Reporter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. 05-2131

                      UNITED STATES OF AMERICA,

                                 Appellee,

                                      v.

                      HARRY ARIZMENDI-SERRANO,

                         Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

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


                                   Before

                     Torruella, Lynch and Lipez,
                           Circuit Judges.



     Anita Hill Adames on brief for appellant.
     Nelson Pérez-Sosa, Assistant U.S. Attorney, Thomas F. Klumper,
Assistant U.S. Attorney, and Rosa E. Rodríguez-Vélez, United States
Attorney, on brief for appellee.



                            November 8, 2006
             Per    Curiam.       Harry         Arizmendi-Serrano         ("Arizmendi")

appeals from his drug-trafficking conviction on the sole ground

that he was deprived of his Sixth Amendment right to effective

assistance     of    counsel     in    connection         with     his    guilty   plea.

Specifically,       he   faults       his    trial       counsel    for     erroneously

calculating his criminal history category and, on the basis of that

miscalculation, erroneously advising him that he would be eligible,

via the "safety valve," U.S.S.G. § 5C1.2, to receive a sentence

below the statutory mandatory 10-year minimum that would otherwise

apply   to   his    offense.      Because         the    existing    record    here    is

sufficiently developed, we depart from our usual practice of

treating ineffective assistance of counsel claims raised for the

first time on direct appeal as premature and, instead, proceed to

consider     Arizmendi's      claim    on    its       merits.     United    States    v.

Natanel, 938 F.2d 302, 309 (1st Cir. 1991).

             "The touchstone for any ineffective assistance of counsel

claim is the two-part test laid down by the Supreme Court in

Strickland     v.    Washington,      466       U.S.    668   (1984).       First,    the

defendant must show that counsel's performance was deficient. . . .

Second, the defendant must show that the deficient performance

prejudiced the defense."          United States v. Colon-Torres, 382 F.3d

76, 85-86 (1st Cir. 2004) (quoting Hill v. Lockhart, 474 U.S. 52,

59 (1985)).        In the context of guilty pleas, "'[t]he second, or

"prejudice,"       requirement    .    .    .     focuses     on   whether    counsel's


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constitutionally ineffective performance affected the outcome of

the plea process.'"   Id. at 86 (quoting   Hill, 474 U.S. at 58-59).

To satisfy that second requirement, a defendant must "show 'a

reasonable probability that, but for counsel's errors, he would not

have pleaded guilty and would have insisted on going to trial.'"

Id. (quoting Hill, 474 U.S. at 59).

          We need not determine whether the first requirement is

satisfied here because Arizmendi has clearly failed to satisfy the

second, prejudice requirement.    Knight v. United States, 37 F.3d

769, 775 (1st Cir. 1994).     He does not argue that, absent his

counsel's error about his criminal history, he would not have pled

guilty and would have insisted on going to trial. Cf. Colon-Torres

(finding serious indicia of prejudice where defendant "is now

adamant that he wants to have the trial option").        Rather, he

alleges merely that the error deprived him of "giving consideration

to exercising the constitutional right to a jury trial."   However,

the record is clear that Arizmendi's last-minute decision to forgo

a jury trial was motivated not by his counsel's advice about his

eligibility for the safety valve but rather by the government's

stated intention, on the eve of trial, to file an information about

his prior conviction for a felony drug offense, which would have

doubled the length of his criminal sentence.1   Moreover, even after


     1
      See 21 U.S.C. §§ 841(b)(1)(A) (providing for a 20-year
mandatory minimum sentence if a person violates § 841(a) after a
prior conviction for a felony drug offense has become final);

                                 -3-
the presentence report found him ineligible for the safety valve

because he committed the instant offense while still on probation

for a prior offense, he made no attempt to vacate his guilty plea

as involuntary or unknowing.

            The other form of prejudice that Arizmendi asserts--that

"he could have received a more lenient sentence"--is patently

nonexistent.     The length of his sentence was driven by his prior

record and his refusal to cooperate, not by his counsel's advice.

Regardless of counsel's advice one way or the other, he was in fact

ineligible for the safety valve and would therefore have been

subject    to,   at   least,   the   same   ten-year   sentence   ultimately

imposed.    Indeed, if he had gone to trial, and the government had

filed the intended information, his sentence would have, at least,

doubled in length.

            Accordingly, we reject Azimendi's ineffective assistance

claim on its merits and affirm the judgment.              See 1st Cir. R.

27(c).




851(a) (prohibiting such an increase in the mandatory minimum
unless, before trial or entry of a guilty plea, the United States
files an information stating the previous convictions relied upon).

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