          United States Court of Appeals
                     For the First Circuit

No. 13-2145

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                        ANTHONY CARDOZA,

                      Defendant, Appellant.



          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

          [Hon. George Z. Singal, U.S. District Judge]



                             Before

                 Torruella, Kayatta, and Barron,
                         Circuit Judges.



     William S. Maddox on brief for appellant.
     Margaret D. McGaughey, Assistant United States Attorney, and
Thomas E. Delahanty II, United States Attorney, on brief for
appellee.




                          June 23, 2015
              Per Curiam. Anthony Cardoza entered a guilty plea on a

drug trafficking offense and received a sentence of 72 months at

a sentencing hearing on September 17, 2013.                      Cardoza raises an

ineffective      assistance          of     counsel      claim       challenging          his

conviction.       Cardoza      also       contends    that     his    case     should       be

immediately      remanded      for        resentencing    because         of   a     recent

retroactive amendment to the sentencing guidelines.

              Cardoza's     ineffective        assistance        of       counsel        claim

asserts a number of alleged errors his lawyer committed.                           But this

claim, as is often the case with such claims, involves fact-

specific issues ill-suited for resolution on direct appeal.                               See

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.").

We   therefore     "dismiss      the        claim    without     prejudice          to    its

reassertion,"     if    the    defendant        so    chooses,       in    a   collateral

proceeding.      United States v. Ofray-Campos, 534 F.3d 1, 34 (1st

Cir. 2008).

              Cardoza also separately challenges the sentence imposed

by the District Court.           After Cardoza was sentenced, the U.S.

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Sentencing    Commission   passed       Amendment     782   to   the    sentencing

guidelines.     See United States Sentencing Commission, Guidelines

Manual, App. C Supp., Amendment 782 (Nov. 1, 2014). That amendment

lowers the "base offense level" for most drug offenses, see id.,

and has been made retroactive by the Sentencing Commission, see

U.S.S.G. 11 § 1B1.10(d).              Cardoza argues that this amendment

entitles him to a sentence reduction, and he seeks an immediate

remand for re-sentencing.             The government does not oppose the

requested    reduction   but     it    contends      that   no   such   remand    is

necessary since Cardoza is not eligible for release until November

1, 2015, at the earliest.

             While   Cardoza's    appeal       was    pending,     however,      the

District Court purported to grant sua sponte an order modifying

the sentence on the basis of the amendment to the guidelines under

18 U.S.C § 3582(c)(2).         That order, issued on April 29, 2015,

purported to reduce Cardoza's term of imprisonment to 58 months.

Neither Cardoza nor the government informed us of this development,

which we were made aware of after the District Court provided a

supplement to the record to the clerk of the Court of Appeals.

             As we just recently made clear, a district court does

not have jurisdiction to enter a sentence modification order under

§ 3582(c)(2) while an appeal of that sentence is pending.                  United

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States v. Maldonado-Rios, ___ F.3d ___, 2015 WL 3652600, at *2

(1st Cir. June 15, 2015) ("Because [defendant's] appeal was pending

at the time the District Court ruled on his motion to modify the

sentence under § 3582(c)(2), we hold that the District Court lacked

jurisdiction to enter the order reducing the sentence.").      That

does not mean, however, that we need to resolve whether Cardoza is

entitled to the immediate remand for resentencing that he seeks.

And that is because, as we explained in Maldonado-Rios, Federal

Rule of Appellate Procedure 12.1 offers us an alternative and more

efficient means of proceeding in a case where a district court has

purported to issue a modification order that would -- if valid --

potentially moot the portion of the appeal that concerns the

sentence.   See id.

            That rule permits a district court faced with a motion

that it "lacks authority to grant because of an appeal that has

been docketed and is pending" to "state[] . . . that it would grant

the motion."      Fed. R. App. P. 12.1(a).    The movant must then

"promptly notify" the Court of Appeals' clerk of the district

court's ruling.    Id.   This Court can then, if it chooses, "remand

for further proceedings but retain jurisdiction."    Fed. R. App. P.

12.1(b).




                                 - 4 -
           Here, as in Maldonado-Rios, the District Court did not

"actually issue an indicative ruling."        2015 WL 3652600, at *3.

But it could "hardly have more clearly stated" what it would do if

faced with a § 3582(c) motion.     Id.    We will therefore treat the

District Court's April 29, 2015 order as if it were an indicative

ruling   under   Rule   12.1.   And,     having   done   so,   we   retain

jurisdiction and remand this case to the District Court so that it

may enter an order modifying Cardoza's sentence as it has indicated

it believes is warranted.       Once the District Court enters its

modification order, the government and the defendant shall notify

this Court within 14 days as to whether there is any reason why

the appeal should not then be dismissed.

           So ordered.




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