          United States Court of Appeals
                     For the First Circuit


No. 11-1927

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                        GLEN RIVERA-ORTA,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Aida M. Delgado-Colón, U.S. District Judge]



                             Before

                  Torruella, Selya and Howard,
                         Circuit Judges.



     Michael J. Tuteur, Nicholas J. Ellis, and Foley & Lardner LLP
on brief for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Julia M. Meconiates, Assistant United States
Attorney, on brief for appellee.



                        January 25, 2013
            SELYA, Circuit Judge.       Defendant-appellant Glen Rivera-

Orta pleaded guilty to a charge of conspiring to possess narcotics

with intent to distribute.          In due course, the district court

imposed sentence.     Although his plea agreement contained a waiver-

of-appeal provision, the defendant nevertheless attempts to appeal.

We enforce the waiver of appeal, reject a parallel ineffective

assistance    of    counsel    claim    as    unripe,         and     dismiss   the

improvidently filed appeal.

            Inasmuch as this appeal trails in the wake of a guilty

plea, we draw the facts from the plea agreement, the change-of-plea

colloquy,    the     unchallenged      portions          of     the    presentence

investigation      report   (PSI   Report),        and    the    record    of   the

disposition hearing.        See United States v. Calderón-Pacheco, 564

F.3d 55, 56 (1st Cir. 2009); United States v. Dietz, 950 F.2d 50,

51 (1st Cir. 1991).

            In December of 2007, federal agents arrested and charged

upwards of 120 individuals (including the defendant) for their

alleged participation in a sprawling drug-trafficking conspiracy.

The government      averred   that,    as   part    of    the    conspiracy,    the

defendant owned and operated a drug point for which he purchased

drugs wholesale; that he thereafter was responsible for repackaging

the contraband; and that he served, from time to time, as an

enforcer for the drug ring.




                                      -2-
           Immediately before his trial was to start, the defendant

agreed to plead guilty to the conspiracy charge, see 21 U.S.C.

§§ 841(a)(1), 846, 860, and the parties executed a nonbinding plea

agreement.      The district court accepted the ensuing plea and

ordered the preparation of a PSI Report.

           The guideline calculation, embodied in the plea agreement

and reiterated    in    the    PSI   Report,     was straightforward.        The

calculation started with a stipulated base offense level (30).                 It

then incorporated three upward adjustments, totaling six levels.

See USSG §2D1.1(b)(1) (possession of firearms); id. §2D1.2(a)(1)

(proximity to protected location); and id. §3B1.1(c) (leadership

role).     It   then    proceeded       to    apply   a   three-level   downward

adjustment.      See id. §3E1.1 (acceptance of responsibility).

Pairing   the   adjusted      offense    level    (33)    with   the   applicable

criminal history category (I) produced a guideline sentencing range

(GSR) of 135-168 months.

           At   the    disposition      hearing,      these   calculations   went

unchallenged.    Defense counsel acknowledged the defendant's status

as a drug-point owner, but claimed mitigating circumstances and

sought a sentence at the nadir of the GSR.1                   The district court



     1
       At one point prior to sentencing, the defendant moved pro se
for a downward departure, asserting that his role as a member in
the conspiracy was to act as "a small-time middle-man."        This
motion was never ruled upon explicitly, and the position asserted
in it appears to have been abandoned by the time that the district
court convened the disposition hearing.

                                        -3-
obliged, sentencing the defendant to 135 months in prison.      This

appeal followed.

          The defendant's principal claim is one of sentencing

error: he contends that the district court erred in imposing a two-

level enhancement for his supposed leadership role.        See USSG

§3B1.1(c). There is a threshold issue that must be resolved before

we can entertain this claim of sentencing error: the government

asseverates that the claim is foreclosed by the terms of the plea

agreement.

          The government's asseveration is driven by the fact that

the plea agreement contained a waiver-of-appeal provision.      That

provision memorialized the defendant's agreement that, as long as

the district court "accepts this Plea Agreement and sentences [him]

according to its terms, conditions and recommendations" — which it

did — the defendant "waives and surrenders his right to appeal the

judgment and sentence in this case."

          A waiver of appellate rights in a criminal case, made

knowingly and voluntarily, is presumptively enforceable.         See

United States v. Nguyen, 618 F.3d 72, 74 (1st Cir. 2010).         We

employ a tripartite test in order to determine whether a waiver of

appeal should be enforced.   See United States v. Teeter, 257 F.3d

14, 24-26 (1st Cir. 2001).     To begin, we evaluate whether the

written plea agreement "contains a clear statement elucidating the

waiver and delineating its scope."     Id. at 24.   Next, we examine


                                -4-
whether the "district judge . . . question[ed] the defendant

specifically about [his] understanding of the waiver provision and

adequately inform[ed] [him] of its ramifications."                     Id.; see also

Fed. R. Crim. P. 11(b)(1)(N). If these criteria are not satisfied,

the waiver of appeal is rendered nugatory.

              The third step in the progression is in the nature of a

safety valve.       Even if the first two criteria are satisfied, we may

refuse to enforce the waiver of appeal if doing so would result in

a miscarriage of justice.        See Teeter, 257 F.3d at 25.

              In the case at hand, the defendant argues, albeit weakly,

that his waiver of appeal was neither knowing nor voluntary because

he   was    insufficiently    informed about            the   rights   that   he    was

surrendering.       This argument is undercut both by the language of

the plea agreement and by the transcript of the change-of-plea

colloquy.

              The plea agreement set forth the scope and terms of the

waiver of appeal with conspicuous clarity.                    And at the change-of-

plea hearing, the district court made a thorough inquiry into the

knowing and voluntary character of the plea agreement, including

the waiver-of-appeal provision.            In explaining that provision to

the defendant, the court made pellucid that "the waiver of appeal

means that you will accept my sentence if it is within [the agreed

upon] range, as the final sentence and you will not go to a higher

Court      asking   those   Judges   .    .    .   to    basically      review     what


                                         -5-
transpired, you will just accept the sentence because that is the

sentence that you stipulated to."              At the end of the hearing, the

court supportably found that the defendant was "competent to plead,

fully aware of his Constitutional rights and [the] consequences of

waiving the same," and had voluntarily entered into the plea

agreement    (including       the    waiver-of-appeal        provision)   after

discussions with counsel.

            No   more    is   exigible    to    warrant a    finding   that the

defendant knowingly and voluntarily waived his appellate rights.

The   waiver-of-appeal        provision        is,   therefore,   presumptively

enforceable.

            The defendant's fallback position is that his waiver of

appeal should not be enforced because doing so would work a

miscarriage of justice. In this context, "the term 'miscarriage of

justice' is more a concept than a constant."                Teeter, 257 F.3d at

26.   An inquiry into a miscarriage of justice claim requires us to

consider factors such as the character, extent, and impact of the

alleged error.     See id.      At a minimum, a miscarriage of justice

must "involve[] an increment of error more glaring than routine

reversible error."        United States v. Miliano, 480 F.3d 605, 608

(1st Cir. 2007).        The practical effect of this circumscription is

that the miscarriage exception is to be applied "sparingly and

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




                                         -6-
               The defendant asserts that the exception pertains here

because the role-in-the-offense enhancement was unfounded. As part

of his plea agreement, however, the defendant stipulated to the

application of the very enhancement about which he now complains.

During the change-of-plea colloquy, the district court confirmed

the defendant's agreement to this enhancement.2 A defendant cannot

agree to both an enhancement and its factual predicate, reiterate

that agreement in open court, and later repudiate it merely to suit

his later convenience.              We hold, therefore, that the defendant

waived any challenge to the imposition of the enhancement.                    See

United States v. Serrano-Beauvaix, 400 F.3d 50, 54 (1st Cir. 2005).

This       holding,   in   turn,     defenestrates    the   argument   that   the

enhancement spawned a miscarriage of justice.

               The defendant has one more shot in his sling.           He argues

that he received ineffective assistance of counsel in the court

below.       The crux of this argument is his assertion that his trial

counsel failed to advise him in a timely manner of a favorable plea

offer.

               The facts are alleged in the defendant's brief to be as

follows.        The defendant avers that on the morning that jury

selection      was    to   begin,    his   attorney   informed   him   that   the

government had tendered a plea offer, which envisioned a 96-month


       2
       The court also confirmed the defendant's admission of his
status as a drug-point owner within the conspiracy (the central
fact upon which the role-in-the-offense enhancement was premised).

                                           -7-
sentence.       The defendant indicated a willingness to accept this

offer, and his lawyer began to prepare the necessary paperwork.

Before any agreement could be firmed up, however, jury selection

began.     At the conclusion of the empanelment, the defendant's

counsel    advised   him    that   the   government     would   not    agree    to

recommend a sentence of less than 135 months.

            The    defendant's     complaint    about   the   quality    of    the

representation that he received is based on this sequence of

events.     He asserts that his lawyer delayed for an unreasonable

period of time before conveying the putative 96-month plea offer to

him; and that, had the offer been conveyed earlier, he would have

accepted it and entered into a firm agreement well before jury

selection began.

            "The Sixth Amendment guarantees criminal defendants the

right to effective assistance of counsel."              Scarpa v. Dubois, 38

F.3d 1, 8 (1st Cir. 1994).          In determining whether an attorney's

performance falls below the constitutional norm, a defendant is

required to show "that counsel's performance was deficient" and

"that     the   deficient    performance       prejudiced     the   defense."

Strickland v. Washington, 466 U.S. 668, 687 (1984).                 "A defendant

who alleges ineffective assistance of counsel must carry the devoir

of persuasion on both tiers of the Strickland test."                  Scarpa, 38

F.3d at 8-9.




                                      -8-
           Notwithstanding the constitutional provenance of the

right to effective assistance of counsel in a criminal case, a

defendant does not have an absolute right to advance such a claim

for the first time on direct review of a conviction or sentence.

"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).   Such a

claim will be entertained on direct review only in the rare

instance when "the critical facts are not in dispute and the record

is sufficiently developed to allow reasoned consideration of the

claim."   Id.

           In this case — as in most cases in which the claim of

ineffective assistance has not been presented to the trial court —

the record is not adequately developed to allow for reasoned

consideration of the claim.     Specifically, the district court

record lacks any evidence anent the details and timing of the

serial plea offers described by the defendant.      Similarly, the

district court record is barren of any explanations by either the

defendant's trial counsel or the prosecutor about the sequence and

timing of plea negotiations.3


     3
       This paucity of evidence is made starkly apparent by the
defendant's acknowledgment that he has thus far been "unable to
confirm the timing" of the government's putative 96-month plea

                                -9-
           To say more on this point would be supererogatory.

Where, as here, the district court record is so sparse as to be

unhelpful, "we have routinely dismissed the relevant portion of the

appeal without prejudice to the defendant's right to litigate his

ineffective assistance claim through the medium of an application

for post-conviction relief."        Mala, 7 F.3d at 1063. We follow that

praxis here and dismiss the defendant's ineffective assistance of

counsel claim without prejudice to his right to renew it, if he so

chooses, by means of a petition under 28 U.S.C. § 2255.4                  See,

e.g., United States v. Walker, 665 F.3d 212, 234 (1st Cir. 2011).

           There is one loose end.          The defendant suggests that we

can still consider his ineffective assistance of counsel claim in

connection   with   his    effort    to     vitiate   the   waiver-of-appeal

provision.   This suggestion lacks force.

           When, as in this instance, the merits of an ineffective

assistance of counsel claim cannot be adjudicated on the basis of

the   district   court    record,   the   law   requires    us   to   honor   an

otherwise enforceable waiver-of-appeal provision and dismiss the

defendant's appeal.      "If the rule were otherwise, a defendant who

secured the benefits of a plea agreement by, inter alia, knowingly

and voluntarily waiving the right to appeal could escape the fairly


offer.
      4
       We take no view of the merits of this claim, nor do we
express an opinion as to whether a 96-month plea offer was ever
discussed.

                                     -10-
bargained-for appeal waiver by the simple expedient of asserting an

ineffective-assistance-of-counsel claim that had no merit." United

States v. Oladimeji, 463 F.3d 152, 155 (2d Cir. 2006) (quoting

United States v. Monzon, 359 F.3d 110 (2d Cir. 2004)).

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

we dismiss the defendant's appeal.



Dismissed.




                               -11-
