April 28, 1993

                      [NOT FOR PUBLICATION]

                  UNITED STATES COURT OF APPEALS

                      FOR THE FIRST CIRCUIT
                                           

No. 92-1761

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                        ALFREDO MALDONADO,

                      Defendant, Appellant.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MAINE

           [Hon. D. Brock Hornby, U.S. District Judge]
                                                     

                                           

                              Before

                     Torruella, Circuit Judge,
                                             
                  Coffin, Senior Circuit Judge,
                                              
                    and Boudin, Circuit Judge.
                                             

                                           

  Ralph J. Perrotta for appellant.
                   
  Margaret  D. McGaughey,  Assistant  United States  Attorney,  with
                        
whom Richard  S. Cohen, United  States Attorney, Jonathan  R. Chapman,
                                                                   
Assistant U.S. Attorney, and F. Mark Terison, Assistant U.S. Attorney,
                                          
were on brief for appellee.

                                           

                                           

     Per Curiam.  Appellant  Maldonado contends that his sentence
               

on a  drug distribution charge  was tainted by  false information

presented at his  sentencing hearing.   He claims  that both  the

prosecutor and  defense counsel should have  brought the problems

to the attention of the sentencing judge, and their failure to do

so  constituted,  respectively,  a  denial  of  due  process  and

ineffective assistance of counsel.  We affirm.

     This case arises  from a drug conspiracy that  extended from

the summer of  1990 through spring 1991,  involving Maldonado and

two  other individuals,  both  of whom  testified at  Maldonado's

sentencing hearing.   Their  testimony depicted Maldonado  as the

organizer or supervisor of  the endeavor.   They said he was  the

source of all the cocaine they sold and, at least for part of the

conspiracy period, he set the prices and controlled the proceeds.

The  two men also testified to the amounts of cocaine involved in

the  conspiracy, describing  both amounts  sold to  customers and

amounts delivered by or obtained through Maldonado. 

     The testimony on drug  amounts was not precisely consistent,

and  at times was confusing.   The district  court was satisfied,

however,  that  Maldonado  was  responsible  for  at  least  five

kilograms, the  lowest amount necessary to  trigger offense level

32  under the Sentencing Guidelines.  Based on the two witnesses'

testimony,  the  court  also   found  that  Maldonado  served  as

organizer or supervisor of  the conspiracy.  The court  sentenced

Maldonado to 121  months, the  shortest possible  term under  the

relevant guideline.

     Maldonado identifies three factual  flaws in his sentencing:

(1)  the  government  misrepresented   the  nature  of  its  plea

agreement with the  primary witness,  co-conspirator Lemieux,  by

stating that Lemieux's culpability was limited to the quantity of

drugs known  at the time of his indictment; (2) the court was not

apprised that, contrary to his statements at the hearing, Lemieux

had done extensive  drug dealing before  the conspiracy at  issue

here;  and (3)  the  court  also  did  not  know  that  Lemieux's

testimony at the hearing about the number of cocaine customers he

could identify by  name differed from  earlier statements he  had

given to authorities.

     Maldonado  asserts that  the lawyers'  failure to  alert the

district  court to  the true  circumstances may  have  caused the

court to overvalue Lemieux's  testimony and, therefore, to impose

a higher sentence.  Additionally, he criticizes defense counsel's

failure to impeach Lemieux's credibility on the quantity of drugs

dealt  during   the  conspiracy.    Maldonado   claims  that  the

prosecutor's  omissions  denied  him  due process  and  that  the

defense   attorney's  deficiencies  deprived  him  of  meaningful

representation by  counsel.  Consequently, he  maintains that his

sentence must be vacated.

     This appeal is unavailing  for a number of reasons.   First,

it  relies  in  substantial  part  on  documents  that  were  not

presented  to the  district court.   Maldonado's  contention that

information about  Lemieux's prior drug dealing  was omitted from

the sentencing hearing and that Lemieux testified  inconsistently

                               -3-

about  his  knowledge  of  customer  names  is  based  on   prior

statements Lemieux  gave to authorities.   None of  these unsworn

statements  was made a  part of  the record  below.   Rather than

asking this court to consider these interviews for the first time

on  appeal,  Maldonado  should  have brought  them  first  to the

attention of  the trial court, see  Eagle-Picher Industries, Inc.
                                                                 

v. Liberty Mutual Insurance Co., 682 F.2d 12, 22 &amp;  n.8 (1st Cir.
                               

1982),  presumably in  the form  of a  motion under  28 U.S.C.   

2255.1

     Were we to consider the interviews and rule on the merits of

his claims, Maldonado would fare no better.  The documents do not

evince  perjury  by Lemieux  or undermine  in  any other  way the

district court's  findings on  the amount  of drugs involved  and

Maldonado's  role.    The  testimony of  Lemieux  highlighted  by

Maldonado  reasonably is understood not as a denial of prior drug

dealing  but simply as confirmation of the date the conspiracy at

issue began.  See  Transcript of Sentencing Hearing (Tr.)  at 9.2
                 

As  for the  customer  names,  a  year's  lapse  in  time  and  a

                    

     1 We  recognize that  Maldonado's appeal  rests on  the fact
that these documents  were not presented  to the district  court.
To the extent the omission of the documents gives rise to a claim
of  ineffective  assistance  of  counsel,  however, Maldonado  is
obliged under  longstanding precedent to present  the claim first
to the district court.  See infra at 5-7.  The due process claim,
                                 
relying  as  it does  on the  alleged  deception of  the district
court, strikes  us as similarly inappropriate  for initial review
by this court.

     2 In fact, although the point was not developed, Lemieux was
asked by defense counsel whether he had been dealing drugs before
he became involved in  this conspiracy.  He answered  "yes."  See
                                                                 
Tr. at 27.

                               -4-

difference  in  the  questions   asked  account  for  the  slight

variations in Lemieux's statements.3

     Second, Maldonado's attempt  to create  controversy at  this

juncture  over the  nature  of Lemieux's  plea agreement  plainly

lacks substance.   Although the  government's characterization of

the agreement was muddled, the district court focused on the very

point  about  which Maldonado  is  concerned  -- the  discrepancy

between the  amounts of  cocaine that Lemieux  attributed to  the

conspiracy  in his testimony and the much smaller amount on which

he was sentenced.  See Tr.  at 85-88.  We are confident that  the
                      

court  understood  the  prosecutor  to say  only  that  Lemieux's

sentence likely was  based on the amount of  cocaine known to the

government at the time he was sentenced.  In any event, the court

had the agreement before it and was in no way deceived.

     Third, the claim of ineffective assistance of counsel is not

properly  before  us  as  we  ordinarily  do  not  consider  such

complaints when raised for the first time on direct  appeal.  See
                                                                 

United  States v.  Georgacarakos,  No. 92-1890,  slip  op. at  18
                                

(March 30, 1993);  United States v. McGill, 952 F.2d  16, 19 (1st
                                          

Cir. 1991).   This is not the "exotic exception" to the rule, see
                                                                 

McGill,  952  F.2d  at  19,  where  the  record  is  sufficiently
      

developed to  allow reasoned  consideration of  the claim by  the

appeals  court  in the  first instance.    Indeed, this  claim is

                    

     3 This case  does not involve allegations  of either delayed
disclosure   or  nondisclosure   of  Lemieux's   statements,  and
Maldonado's reliance  on United States  v. Osorio, 929  F.2d 753,
                                                 
758  (1st Cir. 1991) and United States v. Perkins, 926 F.2d 1271,
                                                 
1275 (1st Cir. 1991), is therefore misplaced.

                               -5-

particularly suited  to resolution by the  district court because

its  gist  is  that  that  court  was  led  astray  by  counsel's

performance. 

     Once  again, even if review  were appropriate, we would find

no constitutional error.  During cross-examination, trial counsel

appropriately focused on Lemieux's testimony regarding the amount

of cocaine and Maldonado's role in the conspiracy.  Maldonado, in

fact, acknowledges  that the attorney reasonably  "dealt with the

crucial  issue of quantity by accepting the veracity of that part

of Lemieux's testimony . . .  most favorable to his client . .  .

."   See Brief at 14  ("These arguments were certainly  valid . .
        

..").   But he goes on  to argue that a  more direct challenge to

Lemieux's testimony should  have been made based on the witness's

prior  statements  to  authorities.   Those  statements, however,

arguably lend support to  the government's calculation of cocaine

amounts.4    The decision  not  to utilize  them  therefore would

                    

     4 Our computations  show that the  grand jury testimony  and
reports filed by  two agents for the  Bureau of Intergovernmental
Drug Enforcement supported substantially more than the minimum of
five kilograms of cocaine found by the district court.
     Maldonado  relies in  particular on  Lemieux's statement  to
Agent  Kelly that Maldonado delivered  1/2 to 1  pound of cocaine
every  two weeks for about 32  weeks.  See App. at  9.  Using the
                                          
smaller estimate, Maldonado asserts that this produces only about
3.6 kilograms, and  that this amount is far less  than the lowest
quantity to which  Lemieux testified at the  hearing.  But in  so
arguing,  Maldonado is  reading  Kelly's memorandum  selectively.
The document also reports Lemieux's statement that  he made trips
to  Providence and New York to pick up approximately 4 additional
kilograms from Maldonado.  See App. at 9-10.
                              
     Maldonado  also  points  to Lemieux's  statements  to Agents
Kelly  and Small  concerning a  hiatus in  drug dealing  in early
1991,  contending that  the Small  report describes  a four-month
period from January through April while the Kelly report notes an
approximately two-month break.   We do not read the  memoranda as

                               -6-

indicate sound strategy.   See Isabel v. United States,  980 F.2d
                                                      

60, 65 (1st  Cir. 1992)  (quoting Barrett v.  United States,  965
                                                           

F.2d 1184,  1193 &amp; n.18  (1st Cir. 1992))  ("[W]e may not  find a

deficient  professional performance  in the  constitutional sense

unless the challenged decisions were not `plausible options.'").

     The other  document upon which Maldonado's claims rest is an

Immigration and Naturalization  Service investigative  memorandum

detailing Lemieux's prior  drug dealing activities.  At  the time

of  sentencing,  the  district  court knew  that  Lemieux  was  a

convicted drug dealer testifying as part of a plea agreement with

the  government.  We fail  to see how  the peripheral information

that Lemieux also had dealt drugs independently in the past could

have affected materially the district court's fact-finding on the

amount  of  cocaine  and  Maldonado's role  in  the  conspiracy.5

Maldonado  falls far  short  of demonstrating  that  "there is  a

reasonable  probability  that, but  for  counsel's unprofessional

errors,  the result of the proceeding would have been different."

Strickland v. Washington, 466 U.S. 668, 694 (1984).
                        

     Finally,  we note that, at bottom, this appeal is a creative

attempt  to challenge  as a  matter of  law the  district court's

unassailable factual findings that Maldonado was the leader  of a

                    

necessarily  inconsistent.   Small's  report  describes the  time
frame as  "between the months of January 1991 to the beginning of
April 1991," see App. at 4 -- which plainly excludes the month of
                
April and  thus could be read to mean only the two months between
                                                                 
January and April.

     5 Moreover,  as previously noted, Lemieux  did admit earlier
dealing.

                               -7-

conspiracy involving the distribution  of at least five kilograms

of cocaine.  In  our view, Maldonado received fair  treatment and

was represented by competent  counsel.  Accordingly, his sentence

is unchallengeable.

     Affirmed.
             

                               -8-
