          United States Court of Appeals
                      For the First Circuit


Nos. 15-1324
     15-1325

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

               ELVIN TORRES-ESTRADA, a/k/a Munecon,
                    a/k/a Irvin, a/k/a Irving,

                      Defendant, Appellant.


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

        [Hon. Juan M. Pérez-Giménez, U.S. District Judge]


                              Before

                     Lynch, Selya, and Lipez,
                          Circuit Judges.


     Ezekiel E. Cortez for appellant.
     Thomas F. Klumper, Assistant United States Attorney, Senior
Appellate Counsel, with whom Nelson Pérez-Sosa, Assistant United
States Attorney, Chief, Appellate Division, and Rosa Emilia
Rodríguez-Vélez, United States Attorney, were on brief, for
appellee.


                          March 25, 2016
                 LYNCH,   Circuit Judge.         Elvin Torres-Estrada pleaded

guilty      on    March   21,   2011,    to   two   conspiracies.       One   was   a

conspiracy        to   possess    with    intent    to     distribute   controlled

substances within 1,000 feet of public housing, between about 1995

and 2009.        That conspiracy was charged on September 28, 2009, with

a second superseding indictment filed on April 15, 2010.                        The

second conspiracy was to import five kilograms or more of cocaine

and one kilogram or more of heroin from the Dominican Republic,

between about March 2005 and July 2009.                     That conspiracy was

charged later, on February 9, 2011.

                 There is no need for an extensive discussion of facts.

We give only a brief overview to explain the context for the issues

of law.          At the time of the 2009 indictment and 2010 second

superseding indictment, Torres-Estrada was a fugitive.                   On June 7,

2010,       Torres-Estrada       was    arrested     and    ordered     temporarily

detained.        Attorneys Raymond R. Granger and Edward V. Sapone filed

a motion to appear pro hac vice on behalf of Torres-Estrada1 and

represented him at a July 27, 2012, bail hearing along with local

counsel Zelma Dávila Carrasquillo.                  On July 29, 2010, a local

Puerto Rico attorney, Ramón García García ("García"), filed a

notice to appear as counsel on behalf of Torres-Estrada along with



        1 According to Torres-Estrada, in late 2009 and early
2010, while he was a fugitive, he and an alleged co-conspirator
met with Granger and Sapone.


                                         - 2 -
Dávila Carrasquillo, Granger, and Sapone.                 Torres-Estrada says

that his counsel did not actually coordinate their representation.

             After   Granger    and   Sapone       received   a    plea     offer    on

September 20, 2010, from Assistant United States Attorney Timothy

Henwood, plea negotiations ensued with Granger, Sapone, and García

representing     Torres-Estrada.         According       to       Granger,    García

interfered with negotiations by, inter alia, making a counteroffer

for a sentence lower than what Torres-Estrada had authorized, and

communicating with the government without consulting with Granger

or Sapone.      On October 26, 2010, Granger, Sapone, and Dávila

Carrasquillo withdrew from representing Torres-Estrada.                      Granger

and Sapone's motion to withdraw stated that they were "lead

counsel" and that "Torres-Estrada has advised us that he no longer

wishes to utilize the services of our respective firms and has

requested that we move to withdraw as counsel of record."

             Plea negotiations over the indictment as to the first

conspiracy    failed,    with    negotiations        being    cut     off    by     the

government when it realized Torres-Estrada was involved with the

second conspiracy to import drugs from the Dominican Republic.

That conspiracy had been charged on February 9, 2011, and it is

clear the government cut off negotiations sometime before then.

The March 2011 plea agreement, which led to this appeal, covered

both conspiracies.      Torres-Estrada was sentenced to 288 months of

imprisonment    for    the     conspiracy     to    possess       with    intent    to


                                      - 3 -
distribute    various    controlled      substances,     concurrent       with    a

sentence of 120 months of imprisonment imposed for the importation

conspiracy.

                                        I.

             Torres-Estrada     makes    two    arguments     here   on    direct

appeal.     The first is that he is entitled to the benefit of the

government's plea offer made in the first round of negotiations,

though he had not accepted that offer.               In his brief, Torres-

Estrada argues that he is the victim of ineffective assistance

from García during plea negotiations and that Granger and Sapone

had a conflict of interest.       Cf. Missouri v. Frye, 132 S. Ct. 1399,

1408 (2012); Lafler v. Cooper, 132 S. Ct. 1376, 1384–85 (2012).

The latter part of this argument was modified at oral argument.

See infra note 2.       The other argument is that the district court

judge was required to recuse himself.

A.   Ineffective Assistance of Counsel

             Torres-Estrada executed a waiver of appeal as part of

his March 21, 2011, plea agreement.               The waiver states: "The

defendant hereby agrees that if this Honorable Court accepts this

agreement     and   sentences    [him]       according   to   its    terms       and

conditions, defendant waives and surrenders [his] right to appeal

the conviction and sentence in this case."               We find that he has




                                    - 4 -
waived his appeal of the ineffective assistance of counsel ("IAC")

claim.2

               As an initial matter, Torres-Estrada failed to address

the waiver of appeal clause in his opening brief, which would

ordinarily be enough to enforce that waiver.              See United States v.

Arroyo-Blas, 783 F.3d 361, 367 (1st Cir. 2015).                     In his reply

brief, Torres-Estrada first implies that he was caught by surprise

in learning that the government would attempt to enforce the

waiver.3       That was because as of October 14, 2014, it was the

written policy of the Department of Justice ("DOJ") not to enforce

waivers of appeal involving IAC claims under certain conditions.

The memorandum to which Torres-Estrada refers states, in relevant

part,       that   "[f]or   cases   in    which   a   defendant's    ineffective

assistance claim would be barred by a previously executed waiver,

prosecutors should decline to enforce the waiver when defense

counsel rendered ineffective assistance resulting in prejudice or




        2 At oral argument, Torres-Estrada's counsel conceded that
he had no claim of an actual conflict of interest against Granger
and Sapone.      Further, Torres-Estrada develops no argument
explaining how a potential conflict could have affected the 2010
plea negotiations, given that Torres-Estrada is seeking the plea
offer that Granger and Sapone received and were negotiating prior
to their withdrawal. We understand the remaining claim to be an
IAC claim against García, but not a conflict of interest claim.
        3 This reminds us of the film Casablanca, where Captain
Renault purports to be "shocked, shocked to find that gambling is
going on" in Rick's casino.


                                         - 5 -
when the defendant's ineffective assistance claim raises a serious

debatable issue that a court should resolve."

          The government, in turn, correctly reminds us that such

a policy, promulgated after the plea agreement in this case,

creates no rights in defendants and that courts typically play no

role in the prosecutorial choices made by the DOJ.               See, e.g.,

United States v. Craveiro, 907 F.2d 260, 263–64 (1st Cir. 1990).

          Torres-Estrada    next    points    to    the   district   court's

statement at sentencing that he could appeal the IAC issue.

Torres-Estrada does not argue that he was not fully advised of the

waiver of appeal clause when entering his plea. The district court

"judge's statement at sentencing," made nearly four years after

Torres-Estrada's   guilty   plea,    "does    not   serve   to   invalidate

[Torres-Estrada]'s earlier waiver."          Sotirion v. United States,

617 F.3d 27, 35 (1st Cir. 2010).      Interpretation of the waiver of

appeal clause is for the court of appeals, and the district court's

comments, at least under these circumstances, do not excuse Torres-

Estrada from compliance with the agreement he signed.            See United

States v. Gil-Quezada, 445 F.3d 33, 36–37 (1st Cir. 2006); United

States v. Teeter, 257 F.3d 14, 25 (1st Cir. 2001).

          Torres-Estrada attempts to use Sotirion to argue that

the government waived any argument that the waiver of appeal clause

can be enforced, based on the government's failure to respond to

the district court's statement at sentencing.               We reject the


                                   - 6 -
argument. In Sotirion, the court's discussion of government waiver

related to the government's failure to raise a procedural default

defense to a 28 U.S.C. § 2255 petition in the district court.                   617

F.3d    at   32.      Sotirion    held    that    the   government   waived     the

procedural default argument and then reached the merits of the

waiver of appeal argument.            Id. at 32–33.         As Torres-Estrada's

attempted direct appeal here does not come to us on review of a

§ 2255 petition and the question of government waiver in Sotirion

is distinct from what is before us, we decline to extend Sotirion's

holding.

             And so, Torres-Estrada is left with an argument that his

assertions     meet     the     "miscarriage      of    justice"   exception     to

enforcement of waivers of appeal, as discussed in Teeter.                       257

F.3d at 25–26 & n.9.          However, Torres-Estrada explicitly says that

he "is not challenging his sentence or his guilty plea or the Rule

11 [of the Federal Rules of Criminal Procedure] inquiry at all,"

and that he "is not seeking to vacate his guilty plea."                  Further,

other than pointing to the DOJ policy and the district court's

statements at sentencing -- arguments that we have just rejected

--     Torres-Estrada     develops        no     argument   explaining    how     a

"miscarriage of justice" would result from enforcing the waiver of

appeal clause.

             In any event, we cannot conclude that there would be a

"miscarriage of justice" from enforcing the waiver of appeal clause


                                         - 7 -
because even if we did not enforce the waiver of appeal clause, we

would decline to hear Torres-Estrada's claims on direct appeal.

The record underlying Torres-Estrada's arguments "is . . . not

sufficiently   developed   to   allow   reasoned   consideration   of   an

ineffective assistance claim," and this is not the "rare case"

where we will "review an ineffective assistance claim on direct

appeal."   United States v. LaPlante, 714 F.3d 641, 648 (1st Cir.

2013); see United States v. Santiago-Rivera, 805 F.3d 396, 398

(1st Cir. 2015) (explaining that "our general rule" is that IAC

"claims must originally be presented to the district court as a

collateral attack under 28 U.S.C. § 2255" (quoting United States

v. Colón–Torres, 382 F.3d 76, 84 (1st Cir. 2004))); United States

v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993) ("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.").

B.   Recusal

           Finally, we reject the argument that the district court

judge erred when he denied Torres-Estrada's motion to recuse.

Torres-Estrada argues that at least one communication4 between the



     4    Torres-Estrada refers to "conversations,"          while      the
government contends that there appeared to be                only       one
"conversation."


                                 - 8 -
district court and the attorney for a government witness "created

an appearance of impropriety."         He points to emails between a

government witness and the witness's attorney that suggest that

the attorney had at least one communication with the district court

about the scheduling of a hearing in New York in a matter separate

from Torres-Estrada's case.5      Torres-Estrada filed a motion asking

the district court to determine whether the emails created an

appearance of partiality.    The district court issued an order and

opinion where it concluded that the emails did not create an

appearance of partiality, and the district court declined to recuse

itself.

           Under 28 U.S.C. § 455(a), a judge "shall disqualify

himself   in   any   proceeding   in   which   his   impartiality   might

reasonably be questioned."        28 U.S.C. § 455(a).      "We review a

ruling on a motion to recuse for abuse of discretion . . . ."

United States v. Pulido, 566 F.3d 52, 62 (1st Cir. 2009).       We "will

sustain the district court's ruling 'unless we find that it cannot

be defended as a rational conclusion supported by [a] reasonable

reading of the record.'"      Id. (alteration in original) (quoting

United States v. Vázquez-Botet, 532 F.3d 37, 47 (1st Cir. 2008)).

"Thus, an abuse of discretion will be found only if a reasonable


     5    We note that many of the facts relating to this claim
are in sealed filings, so we cannot detail them further. We have
reviewed these filings and considered them in reaching our
decision.


                                  - 9 -
reading of the record fails to support the conclusion that the

judge's impartiality was not subject to question."   In re Bulger,

710 F.3d 42, 45 (1st Cir. 2013).

          While "'in close cases doubts ordinarily ought to be

resolved in favor of recusal[,]' . . . [t]his is not a close case."

Pulido, 566 F.3d at 62 (quoting United States v. Snyder, 235 F.3d

42, 46 (1st Cir. 2000)).    Our review of the record leads us to

conclude that any communication the district court had with the

government witness's attorney did not call the district court's

impartiality into question, and the district court did not abuse

its discretion in deciding not to recuse itself.

                                 II.

          We affirm the court's decision not to recuse itself and

otherwise dismiss the appeal.




                                - 10 -
