United States v. Andruchuk

122 F.4th 17

• Court: Court of Appeals for the First Circuit
• Decided: November 25, 2024
• Docket: 23-1551
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 23-1551

UNITED STATES OF AMERICA,

Appellee,

v.

RONALD ANDRUCHUK,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary S. McElroy, U.S. District Judge]

Before

Rikelman, Selya, and Lynch, Circuit Judges.

Amy Barsky, with whom Fick & Marx LLP was on brief, for appellant. Lauren S. Zurier, Assistant United States Attorney, with whom Zachary A. Cunha, United States Attorney, was on brief, for appellee.

November 25, 2024 SELYA, Circuit Judge. When a defendant knowingly and

voluntarily waives his appellate rights in a plea agreement, we

customarily enforce that waiver. Here, however,

defendant-appellant Ronald Andruchuk argues that the district

court grossly erred in calculating the guidelines range and that

this error overcomes the validity of his knowing and voluntary

appellate waiver. We reject that argument, uphold the waiver, and

dismiss the defendant's related ineffective assistance of counsel

claim as premature.

I

We start by rehearsing the background and travel of the

case. Because this appeal follows 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 transcript of the disposition hearing. See United

States v. Staveley, 43 F.4th 9, 11 (1st Cir. 2022).

Over a five-month span in 2021, the defendant purchased

169 firearms while struggling with a drug addiction. During the

course of this purchasing spree, the defendant falsely attested on

required federal forms that he did not use illicit drugs.

The record reflects that the defendant shot his guns for

sport at his home in Burrillville, Rhode Island. But even though

the defendant's home was equipped with a gun range, his neighbors

complained that bullets sometimes flew dangerously close to their

- 2 - houses (including bullets that ricocheted off of one neighbor's

dwelling).

On February 24, 2022, Burrillville police officers

responded to a neighbor's complaint and, while standing in the

neighbor's driveway, witnessed bullets fly roughly four feet above

their heads. The defendant was arrested that day for violating a

state law that proscribed the firing of ammunition in a compact

area. See R.I. Gen. Laws § 11-47-50.

Meanwhile, a federal investigation was gathering steam.

The investigation had begun in the fall of 2021, when a federal

agent noticed the large volume of Andruchuk's firearms purchases

and became concerned that Andruchuk was involved in firearms

trafficking. On the day of the defendant's arrest, federal agents

searched his home pursuant to a warrant and found 219 unsecured

firearms strewn about the premises, including several firearms

capable of carrying more than fifteen rounds of ammunition. The

search party also found gun paraphernalia and over 25,000 rounds

of ammunition.

On March 23, 2022, a federal grand jury sitting in the

District of Rhode Island charged the defendant with two counts of

making a false statement during a firearms purchase, see 18 U.S.C.

§ 922(a)(6); two counts of making false statements on forms

required to be kept by federal firearms licensees, see id.

§ 924(a)(1)(A); and one count of possession of a firearm by an

- 3 - unlawful user of a controlled substance, see id. § 922(g)(3). On

January 18, 2023, the defendant entered a guilty plea to the two

counts of making a false statement during a firearms purchase and

the single count of possession of a firearm by an unlawful user of

a controlled substance. In exchange, the government agreed to

dismiss the remaining charges, to recommend a sentence at the low

end of the guideline sentencing range determined by the district

court, and to recommend an acceptance-of-responsibility credit

pursuant to USSG §3E1.1. As an integral part of this bargain, the

defendant agreed to surrender his right "to appeal the conviction

and sentences imposed by the Court, if the sentences imposed by

the Court are within or below the sentencing guideline range

determined by the Court."

The parties stipulated to certain facts regarding how

many firearms were involved in the offenses of conviction.

Otherwise, they made "no agreement as to which [o]ffense

[l]evel . . . applie[d]" and reserved all rights to argue and

present evidence on matters affecting the guideline calculations.

Moreover, the defendant vouchsafed that he "underst[ood] that the

Court alone makes all sentencing decisions, including the

application of the guidelines."

At the change-of-plea hearing, the defendant assured the

court that he had reviewed the plea agreement with his attorney

and that he was fully satisfied with "the counsel, representation

- 4 - and advice given to [him] by [his] attorney." In turn, the court

said that it would calculate the advisory sentencing guidelines

and consider those guidelines, in conjunction with the statutory

sentencing factors, to determine the defendant's sentence. It

explained that the defendant and his attorney would be able to

review a draft PSI Report and "challenge any of the reported facts

or the application of the guidelines recommended by the probation

officer" before the report was put into its final form.

The district court went on to explain with conspicuous

clarity: "In your plea agreement, you agree that you will waive

or give up your right to appeal the conviction and sentence imposed

by this Court if the sentence is within or below the advisory

sentencing guideline range determined by the Court." The defendant

confirmed that he understood the court's explanation. The court

then added: "[T]ypically people have the right to appeal, right,

but you're saying I give up or I waive my right to appeal my

conviction and my sentence as long as my sentence is within or

below that range." The defendant again confirmed that he was

changing his plea knowingly and voluntarily, that he understood

the waiver, and that he had no remaining questions or concerns.

A probation officer prepared a draft PSI Report. The

defendant and his counsel reviewed the draft and lodged nine

objections to it (all unrelated to the issues now on appeal).

Among other things, they clarified certain facts and objected to

- 5 - a proposed four-level enhancement under USSG §2K2.1(b)(6)(B) for

use or possession of a firearm in connection with another felony.

The objection to the enhancement relied on commentary to section

2K2.1 of the guidelines. See USSG §2K2.1, cmt. n.14. The

probation officer addressed every objection lodged by the

defendant. The final version of the PSI Report incorporated all

of the defendant's requested changes and omitted the challenged

enhancement.

The guidelines prescribe a base offense level (BOL) of

twenty when the offense of conviction involved a "semiautomatic

firearm that is capable of accepting a large capacity magazine."

USSG §2K2.1(a)(4)(B)(i)(I). Accordingly, the final version of the

PSI Report (to which the defendant did not object) set the

defendant's BOL at twenty. In support, the PSI Report noted that

— according to the case agent who saw the weapons seized — "there

were several firearms capable of carrying more than 15 rounds of

ammunition" amongst the 219 firearms seized and "[t]he offense

involved semi-automatic firearms capable of accepting a large

capacity magazine." Even so, the PSI Report did not contain any

specific description of any magazine found in the house. Nor did

the PSI Report mention Application Note 2 to section 2K2.1, which

offers a more specific definition of a "semiautomatic firearm that

is capable of accepting a large capacity magazine."

- 6 - The district court convened the disposition hearing on

April 17, 2023. Defense counsel confirmed that he had no

outstanding objections to the final PSI Report. The court adopted

the offense level calculations recommended in the PSI Report, which

began with a BOL of twenty and reached a climax — after taking all

adjustments into account — at level twenty-six. In conjunction

with the defendant's placement in criminal history category I,

this adjusted offense level yielded a guideline sentencing range

of sixty-three to seventy-eight months' imprisonment. The court

found this to be the applicable guideline sentencing range, and

the defendant did not object either to this finding or to any of

the court's other guideline calculations.

At sentencing, the government emphasized the sheer

volume of firearms and ammunition and offered photographs

depicting scores of guns and magazines of all kinds strewn about

the defendant's house. The government also proffered a list of

firearms and related paraphernalia seized from the defendant's

house, which included 25,390 rounds of ammunition weighing over

1,500 pounds. But the government offered no evidence indicating

that any specific magazine was capable of holding any specific

number of rounds.

The district court sentenced the defendant to the low

end of the guideline range that it had calculated: a sixty-three

month term of immurement. It reminded the defendant that he had

- 7 - waived his right to appeal a within-guideline sentence and that

such waivers were "generally enforceable." In an abundance of

caution, though, it explained that the defendant should speak to

his attorney if he felt "that [his] guilty plea was somehow

unlawful or involuntary or there's some other fundamental defect"

or that his waiver was otherwise "not valid." As provided in the

plea agreement, the district court dismissed the remaining

charges.

This timely appeal followed.

II

The defendant builds his appeal largely around an

Application Note that was never cited in the proceedings below.

See USSG §2K2.1, cmt. n.2. The guidelines prescribe a BOL of

twenty where, as here, the offense of conviction involved a

"semiautomatic firearm that is capable of accepting a large

capacity magazine." USSG §2K2.1(a)(4)(B)(i)(I). Application Note

2 (the Application Note) defines "semiautomatic firearm that is

capable of accepting a large capacity magazine" as:

a semiautomatic firearm that has the ability to fire many rounds without reloading because at the time of the offense (A) the firearm had attached to it a magazine or similar device that could accept more than 15 rounds of ammunition; or (B) a magazine or similar device that could accept more than 15 rounds of ammunition was in close proximity to the firearm.

USSG §2K2.1, cmt. n.2.

- 8 - At sentencing, nobody mentioned the Application Note —

not the government, not the defendant, not the probation officer,

and not the district court. Thus, the government did not proffer

evidence and the district court did not find that any of the 219

firearms involved in the offense of conviction "had attached to

it" a magazine that could accept more than fifteen rounds. Nor

was there a proffer, let alone a finding, that any such magazine

"was in close proximity" to any of the firearms. The PSI Report

did, however, state that there were on the premises "several

firearms capable of carrying more than 15 rounds of ammunition."

Relatedly, the PSI Report confirmed that "[t]he offense involved

semi-automatic firearms capable of accepting a large capacity

magazine." Far from objecting to these statements, the defendant

assured the district court that the facts upon which the PSI Report

rested were not in dispute.

The government's failure to adduce specific evidence of

any large capacity magazine attached to or in close proximity to

a firearm is the wellspring from which each of the defendant's

arguments flows. None of these arguments was advanced below.

III

Against this backdrop, we turn to the threshold issue of

whether the defendant's appeal is foreclosed by his appellate

waiver. As a general matter, we have sanctioned the use of

appellate waivers in criminal cases. See United States v. Teeter,

- 9 - 257 F.3d 14, 23 (1st Cir. 2001). Such waivers may facilitate

plea-bargaining: "[a]llowing a criminal defendant to agree to a

waiver of appeal gives her an additional bargaining chip in

negotiations with the prosecution; she may, for example, be able

to exchange this waiver for the government's assent to the

dismissal of other charges." Id. at 22. Indeed, "in some cases

the government, without such a waiver, might not be willing to

plea-bargain at all." Id.

Even so, we have taken pains to erect sturdy guardrails

around the use of appellate waivers in criminal cases. See

Staveley, 43 F.4th at 13; Teeter, 257 F.3d at 23-26. A waiver of

appeal must be knowing and voluntary. See Teeter, 257 F.3d at 24.

And "if denying a right of appeal would work a miscarriage of

justice, the appellate court, in its sound discretion, may refuse

to honor the waiver." Id. at 25.

A

Our appraisal of whether an appellate waiver is knowing

and voluntary occurs in two stages. First, we determine whether

the plea agreement clearly sets forth the scope and terms of the

waiver. See id. at 24. Second, we determine whether the

sentencing court has paid particular heed to the waiver,

specifically discussing with the defendant his understanding of

the waiver provision and its ramifications. See Staveley, 43 F.4th

at 14; Teeter, 257 F.3d at 24.

- 10 - 1

In the case at hand, the defendant first takes aim at

the scope of his appeal waiver. He says that his appeal falls

outside the waiver's scope. We think not.

The waiver in the defendant's plea agreement states:

"Defendant hereby waives Defendant's right to appeal the

conviction and sentences imposed by the Court, if the sentences

imposed by the Court are within or below the sentencing guideline

range determined by the Court." The defendant invites us to read

this provision as "implicitly limited" to sentences "within or

below the sentencing guideline range correctly determined by the

Court" (emphasis supplied).

We decline the defendant's invitation. After all, the

word "correctly" does not appear in the text of the waiver

provision, and we must give the words actually used in a plea

agreement their plain and ordinary meaning. See United States v.

O'farrill-López, 991 F.3d 45, 48 (1st Cir. 2021). The waiver in

this case is luminously clear: the defendant waives his right to

appeal any sentence "within or below the sentencing guideline range

determined by the Court." To add the word "correctly" to the

parties' agreement, as the defendant suggests, would transmogrify

the waiver's plain meaning and negate a portion of the benefit

conferred on the government by the waiver. See United States v.

Edelen, 539 F.3d 83, 85-86 (1st Cir. 2008) (noting that scope of

- 11 - nearly identical waiver "could not be clearer"); United States v.

Chandler, 534 F.3d 45, 49 (1st Cir. 2008) (holding that nearly

identical waiver language was "broad enough to bar an appeal that

challenges the application of the guidelines by the district

court"). Without question, then, this appeal lies within the scope

of the defendant's appeal waiver.1

Here, moreover, the waiver of appeal was knowing and

voluntary. The record as a whole — including the colloquies at

the change-of-plea hearing and at sentencing — makes manifest that

the defendant knowingly and voluntarily waived his right to appeal

any sentence that fell within the sentencing guideline range

determined by the court. See United States v. Thompson, 62 F.4th

37, 42 (1st Cir. 2023); United States v. Villodas-Rosario, 901

F.3d 10, 15, 17-18 (1st Cir. 2018). Not only was the text of the

appellate waiver clear, but the district court emphasized its

meaning at the change-of-plea hearing. The court explained to the

defendant, "[Y]ou agree that you will waive or give up your right

to appeal the conviction and sentence imposed by this Court if the

sentence is within or below the advisory sentencing guideline range

1 Swimming against the tide, the defendant relies on a pre- Chandler case, United States v. McCoy, 508 F.3d 74 (1st Cir. 2007). His reliance is mislaid: McCoy's waiver applied to sentences "within the guideline range," not sentences within the "guideline range determined by the Court." Id. at 78 & n.4. This linguistic difference readily distinguishes McCoy from the case at hand.

- 12 - determined by the Court." The defendant acknowledged that he

understood what the court was telling him.

The short of it is that the defendant was well aware of

what he was relinquishing when he took the benefit of the

negotiated plea and waived his right of appeal. It follows that

the appeal waiver was knowing and voluntary. See, e.g., Thompson,

62 F.4th at 39-42; Staveley, 43 F.4th at 14; Villodas-Rosario, 901

F.3d at 17-18.

B

This brings us to the defendant's principal argument:

that holding him to the letter of his appeal waiver would work a

miscarriage of justice. Invoking the miscarriage of justice

exception to excuse a defendant from the rigors of a valid appeal

waiver is contingent upon the defendant showing that some egregious

sentencing error occurred after he executed the waiver. See

Teeter, 257 F.3d at 25. The standard reflects that appellate

waivers are not intended to "leave acquiescent defendants totally

exposed to future vagaries (however harsh, unfair, or

unforeseeable)." Id. Rather, such waivers are meant to "bring

finality to proceedings conducted in the ordinary course." Id.

In keeping with the goal of promoting finality, we will

not find a miscarriage of justice when a garden-variety error is

unmasked. See United States v. Nguyen, 618 F.3d 72, 75 (1st Cir.

2010) ("Triggering the miscarriage of justice exception requires,

- 13 - at a bare minimum, an increment of error more glaring than routine

reversible error."). Were we to relax this standard, the exception

would swallow the rule. We think it clear beyond hope of

contradiction that should every reversible error constitute a

miscarriage of justice, a waiver of appeal would be a dead letter.

See Edelen, 539 F.3d at 87. Consequently, we apply the miscarriage

of justice exception "sparingly and without undue generosity."

Teeter, 257 F.3d at 26.

To determine whether enforcement of an appeal waiver

would work a miscarriage of justice, we consider a litany of

factors, such as the clarity of the error, its gravity and

character, its impact on the defendant, the government's interest

in enforcing the waiver, and the extent to which the defendant

acquiesced in the result below. See id. Taking this approach, we

have found a miscarriage of justice "when an error of significant

or constitutional dimension is clear." United States v. Del

Valle-Cruz, 785 F.3d 48, 56-57 (1st Cir. 2015) (finding miscarriage

of justice when supervised release condition imposed without

explanation prohibited parent from raising child); see United

States v. Ortiz-Vega, 860 F.3d 20, 28 (1st Cir. 2017) (finding

miscarriage of justice when district court refused to rule on

defendant's constitutional claim alleging ineffective assistance

of counsel); United States v. Santiago, 769 F.3d 1, 10-11 (1st

Cir. 2014) (finding miscarriage of justice when district court

- 14 - committed clear constitutional error by imposing part of sentence

outside of defendant's presence). We have also indicated that we

would find a miscarriage of justice if a court used

"'constitutionally impermissible factors (say, race or ethnicity)'

at sentencing," if the court imposed "a 'sentence exceeding the

maximum penalty permitted by law,'" or if the court imposed "a

sentence that 'violate[d] a material term of the plea agreement.'"

Villodas-Rosario, 901 F.3d at 19 (quoting Teeter, 257 F.3d at 25

nn.9-10).

With these benchmarks in place, we examine the

defendant's claim of error. He posits that a collective failure

to notice and act upon the Application Note artificially boosted

his guideline sentencing range and, thus, impermissibly elongated

the length of his sentence. If the Application Note had been

correctly applied, he suggests, his offense level would have been

much diminished and his guideline range would have been cut nearly

in half. In his view, this might have resulted in a sentence as

low as thirty-seven months.

The defendant, however, does not proffer that his

conduct fell short of meeting the criteria contained in the

Application Note. He complains only that the government did not

set forth sufficient evidence to prove that his conduct satisfied

those criteria. We find that this alleged error does not translate

into a miscarriage of justice.

- 15 - To begin, the defendant's plaint rings hollow when

considered in conjunction with his total acquiescence in the

district court's findings of fact and guideline calculations. See

Teeter, 257 F.3d at 26. The defendant conceded the accuracy of

all of the facts presented at sentencing, including those contained

in the final PSI Report. This means, of course, that he agreed

that "[t]he offense involved semi-automatic firearms capable of

accepting a large capacity magazine" including "several firearms

capable of carrying more than 15 rounds of ammunition." The

district court appropriately accepted those undisputed statements

as its findings of fact. See United States v. Ramirez-Ayala, 101

F.4th 80, 87 (1st Cir. 2024) ("[A] sentencing court may accept any

undisputed portion of the [PSI Report] as a finding of fact."

(internal quotation marks omitted)); see also Fed. R. Crim. P.

32(i)(3)(A).

What is more, the defendant emphasized that "[t]he facts

are really not in dispute" and, thus, "[t]he Court doesn't need to

make any factfinding determinations." The defendant's total

acquiescence robbed the government of any incentive to develop the

factual record with greater particularity by, say, informing the

court which of the many firearms involved in the offense satisfied

the definition contained in the Application Note. Cf. United

States v. Delgado-Sánchez, 849 F.3d 1, 6-7 (1st Cir. 2017)

(explaining that "a powerful case for waiver" is presented when

- 16 - defendant did not object at sentencing to conclusion in PSI Report

because it "lulls the prosecution and the sentencing court into

what will prove to be a false sense of security if he is later

allowed to do an about-face" (quoting United States v. Turbides-

Leonardo, 468 F.3d 34, 38 (1st Cir. 2006))).

Nor did the defendant take umbrage at any facet of the

district court's guideline calculations. To the contrary, the

defendant — like the government, defense counsel, and the probation

office — agreed that the offense level was properly calculated.

Cf. Sotirion v. United States, 617 F.3d 27, 38 (1st Cir. 2010)

(finding no miscarriage of justice when "all of the parties

involved, including the probation officer, the district judge,

defense counsel, and the government, failed to realize that [a

sentencing guideline] increase was inapplicable"). The

defendant's suggestion that his prior counsel may have overlooked

the Application Note is unsupported conjecture.

In all events, the record independently supports the

inference that the Application Note was satisfied. Photographs

introduced by the government display scores of firearms of all

sorts strewn in piles next to ammunition. All in all, there were

219 firearms and over 25,000 rounds of ammunition. And the record

remains devoid of so much as an assertion that — amongst all of

that ammunition — there was no magazine capable of accepting more

than fifteen rounds. We are left with no substantial reason to

- 17 - doubt that the defendant qualified for the guideline range imputed

to him — a circumstance that renders the impact of the asserted

error wholly speculative. See Teeter, 257 F.3d at 26; see also

O'farrill-López, 991 F.3d at 50 (finding no miscarriage of justice

when "impact of the challenged action on [the defendant] is wholly

conjectural").

To be sure, the defendant argues that the government

never proved that this jumble of guns and ammunition contained a

magazine capable of accepting more than fifteen rounds, either

attached or in close proximity to a semiautomatic firearm. But

under the circumstances of this case, the government's decision to

rest on the PSI Report may well be a result of the defendant's

stipulation to the facts. After all, the defendant's unconditional

acquiescence in the government's version of the facts and the

district court's guideline calculations left the government

without incentive to identify a specific qualifying magazine. On

this record, it is far from clear that the defendant did not

possess a qualifying magazine. To sum up, we conclude that the

district court — if it can be said to have erred at all — did not

clearly err in calculating a BOL of twenty. See Thompson, 62 F.4th

at 43; United States v. Rodriguez-Monserrate, 22 F.4th 35, 44 (1st

Cir. 2021); see also Teeter, 257 F.3d at 26.2

2The defendant also argues that the district court erred in not further reducing his BOL to six because he "possessed all

- 18 - The facts agreed to by the defendant satisfy the

requirement set forth in the plain text of the guidelines: that

the offense involved a "semiautomatic firearm that is capable of

accepting a large capacity magazine." USSG §2K2.1(a)(4)(B)(i)(I).

The unchallenged evidence before the court included photographs of

scores of guns lying next to piles of ammunition and a description

of the 219 guns and 1,500 pounds of ammunition seized. We discern

no clear or obvious error in the district court's calculation of

the guideline range.

To say more about this claim would be to paint the lily.

We hold that enforcing the defendant's waiver of appeal will not

work a miscarriage of justice.

C

We add a coda. The defendant is plowing barren soil in

arguing that the principles elucidated in Rosales-Mireles v.

United States, 585 U.S. 129 (2018), and applied in United States

v. Romero, 896 F.3d 90 (1st Cir. 2018), assure his victory. In

those cases, the sentencing courts had made plain errors — "that

ammunition and firearms solely for lawful sporting purposes or collection, and did not unlawfully discharge or otherwise unlawfully use such firearms or ammunition." USSG §2K2.1(b)(2). The defendant agrees that this sporting-purposes reduction would not apply if the BOL of twenty was properly calculated, and he does not argue that the failure to apply the reduction independently constitutes a miscarriage of justice. Because we conclude that the district court did not plainly err in applying the BOL of twenty, we need not reach the underlying issue.

- 19 - is to say, clear or obvious" errors — in their challenged guideline

calculations. Rosales-Mireles, 585 U.S. at 135 (double-counting

a single conviction in determining defendant's criminal history

score); see Romero, 896 F.3d at 92 (considering all prior

convictions for enhancement when only those that receive criminal

history points should be considered). Had there been plain error

here, this case might tell a different tale. See Teeter, 257 F.3d

at 25 (noting that plain error in sentencing is subset of

miscarriage of justice exception).

Here, however, the absence of any showing of clear or

obvious error defeats any claim of plain error.3 See United States

v. Olano, 507 U.S. 725, 734 (1993); United States v. Sansone, 90

F.4th 1, 8 (1st Cir. 2024). In the end, the defendant must honor

the waiver of appeal provision to which he subscribed.

IV

The defendant argues — also for the first time — that he

received ineffective assistance of counsel below. He claims that

3The parties discuss at some length the relationship between the miscarriage of justice standard and the plain error standard. We agree that the miscarriage of justice analysis resembles the plain error analysis in the context of sentencing guideline disputes. See, e.g., United States v. Rodriguez-Monserrate, 22 F.4th 35, 46 (1st Cir. 2021) ("Because we have suggested that plain sentencing error is 'a subset' of the miscarriage-of-justice exception, we use the two standards interchangeably in this analysis." (quoting Teeter, 257 F.3d at 25)). But because this case does not require us to explicate the precise relationship between the two standards, we leave that question for another day.

- 20 - his counsel was ineffective for failing to raise the issue of the

Application Note. In his view, this ineffective assistance is

both an independent ground for relief and constitutes a miscarriage

of justice under Teeter. We cannot consider either argument on

the record before us.

Although the Sixth Amendment guarantees criminal

defendants the right to effective assistance of counsel, see Scarpa

v. Dubois, 38 F.3d 1, 8 (1st Cir. 1994), a defendant lacks an

absolute right to bring such a claim for the first time on direct

review of a conviction or sentence, see Staveley, 43 F.4th at 15.

"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."4

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

so-called Mala rule is a 'prudential precept' based on practical

realities." Staveley, 43 F.4th at 15 (quoting United States v.

Padilla-Galarza, 990 F.3d 60, 93 (1st Cir. 2021)).

To demonstrate ineffective assistance of counsel, a

defendant must make fact-specific showings that "counsel's

4 To be sure, there is an exception to this rule "where the critical facts are not genuinely in dispute and the record is sufficiently developed to allow reasoned consideration of an ineffective assistance claim." United States v. Natanel, 938 F.2d 302, 309 (1st Cir. 1991). The case at hand does not fit within the narrow confines of this exception.

- 21 - performance was constitutionally deficient" and "that the

deficient performance prejudiced the defense." Mala, 7 F.3d at

1063 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).

Those showings "typically require the resolution of factual issues

that cannot efficaciously be addressed in the first instance by an

appellate tribunal." Id.

This case aptly illustrates why we require claims of

ineffective assistance to be developed before the trial court.

For one thing, "the record is tenebrous as to whether counsel's

performance was constitutionally deficient." Staveley, 43 F.4th

at 16. We know nothing about the thinking behind counsel's

approach, so we cannot begin to make a reasoned decision about the

adequacy of his performance. For another thing, there is no

evidence that counsel's purported deficiencies prejudiced the

defense. The defendant has not alleged that the district court

erred in assigning him a BOL of twenty, much less provided evidence

to that effect. See id. This case falls squarely within the Mala

rule.

Where, as here, an ineffective assistance claim is based

on an undeveloped record, a piggyback claim that the ineffective

assistance caused a miscarriage of justice necessarily fails. See

Staveley, 43 F.4th at 17-18. To constitute a miscarriage of

justice, there ordinarily must — at a minimum — be some clear

error. But "the clarity of an alleged error — or its lack of

- 22 - clarity — is revealed only by measuring the appellant's argument

against the record." Id. at 18. When we lack a record by which

to measure the purported deficiency of counsel, "there is no

reliable way for us to tell whether and to what extent an

appellant's claim of unfairness is woven entirely out of strands

of speculation and surmise." Id.; see United States v.

Torres-Estrada, 817 F.3d 376, 379 (1st Cir. 2016) (refusing to

find miscarriage of justice based on ineffective assistance of

counsel claim "because even if we did not enforce the waiver of

appeal clause, we would decline to hear [the defendant]'s claims

on direct appeal"). Although ineffective assistance of counsel

can provide the basis for a miscarriage of justice exception, see

Ortiz-Vega, 860 F.3d at 28, it can do so only if we are equipped

to "review these allegations of ineffective assistance in a manner

sufficient to assess the enforceability of the defendant's

waiver," Staveley, 43 F.4th at 16. Here, we are not so equipped.

V

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

we dismiss the appeal; without prejudice, however, to the

defendant's right to bring, should he so elect, his ineffective

assistance of counsel claim in a collateral proceeding under 28

U.S.C. § 2255.

Dismissed.

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