United States v. Pascual Dionicio Jeronimo

398 F.3d 1149, 2005 U.S. App. LEXIS 3129, 2005 WL 418560

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 23, 2005
• Docket: 03-30394
• Status: Published

Opinions

Opinion by Judge GOULD; Dissent by Judge BERZON.

GOULD, Circuit Judge.

We consider whether a plea agreement is enforceable and effectively waives the right of appeal. We conclude that we are without jurisdiction to assess the merits of this direct appeal.

I

In July 2002, Pascual Dionicio Jeronimo (“Jeronimo”) faced a potential maximum sentence of thirty years imprisonment for various drug trafficking offenses when he entered into plea negotiations with the government. Through his former attorney, John Kolego (“Kolego”), Jeronimo reached a plea agreement on November 1, 2002, whereby the government agreed to dismiss some of his pending charges, recommend downward departure and a sentence at the low end of the applicable guideline range, refrain from seeking an upward departure, and reduce his maximum potential sentence to twenty years. In return, Jeronimo agreed to plead guilty to two counts of drug trafficking, admit to specific drug quantities, forfeit his interest in certain property, and to waive his rights to appeal and to collaterally attack the length of his sentence. Both Jeronimo and Kolego signed the plea agreement. Immediately above Jeronimo’s signature in capital letters was the following statement:

I HAVE READ OR HAD READ AND TRANSLATED TO ME IN SPANISH BY AN INTERPRETER, THIS AGREEMENT AND HAVE CAREFULLY REVIEWED EVERY PART OF IT WITH MY ATTORNEY.

I UNDERSTAND AND VOLUNTARILY AGREE TO IT AND PROMISE TO ABIDE BY EVERY TERM.

I VOLUNTARILY SIGN THIS AGREEMENT WITH THE FULL UNDERSTANDING OF ALL OF THE ABOVE.

At Jeronimo’s change of plea hearing, which also took place on November 1, 2002, the district court dutifully conducted a comprehensive plea colloquy with Jeroni-mo that embraced all disclosures and inquiries required by Rule 11 of the Federal Rules of Criminal Procedure.¹ Among these disclosures was the district court’s explicit advice to Jeronimo that “the maximum penalty [under his plea agreement was] 20 years in prison and a fine of up to $1 million.” Jeronimo in response assured the district court that he had discussed the federal Sentencing Guidelines with Kolego, and that he was satisfied with Kolego’s help. When asked if his plea was “freely and voluntarily made with a good understanding of the nature of the charges against [him] and the matters in [the] plea petition and plea bargain letter,” Jeronimo, said “yes.”

Before the court’s acceptance of the plea, the prosecutor interjected comments alerting Jeronimo that the government was planning to bring .his prior drug and felony assault convictions, as well as his status as an illegal alien and a prison escapee, to the court’s attention during sentencing. When the court asked Jeroni-mo if he understood that these facts would “likely affect [his] sentence,” Jeronimo responded “yes.” The court accepted his plea.

The United States Probation Office issued its Presentence Report and Sentencing Recommendation on December 10, 2002. Because of his previous convictions for felony assault and drug trafficking, Jeronimo was classified as a career offender with an applicable Sentencing Guidelines range of 151-88 months of imprisonment.

On March 6, 2003, Jeronimo moved through Kolego to withdraw his guilty plea on the grounds that “he[did] not believe that he was adequately advised as to the potential sentencing consequences prior to his change of plea and[did] not feel his plea was intelligently and knowingly made.” On March 17, 2003, Jeronimo filed a separate pro se “Motion to Withdraw Plea of Guilty Due to Inadequate and Fraudulent Representation By Legal Counsel” alleging that Kolego “on several occasions distorted facts as well as misled for the purpose of extracting a ‘Guilty’ plea.” He also alleged that Kolego “repeatedly changed and lied about possible sentences after [the] plea of ‘Guilty’ was entered.”

On May 27, 2003, Richard Fredericks (“Fredericks”) was appointed as Jeroni-mo’s new attorney. On August 14, 2003, Fredericks filed a Memorandum in Support of Motion to Withdraw Guilty Plea on Jeronimo’s behalf, asserting that Jeronimo was “deprived ... of the opportunity to make an intelligent and voluntary decision” because he allegedly pleaded in reliance on Kolego’s erroneous prediction that he would receive a sentence of 87 months.

At a hearing on his plea withdrawal motion, Jeronimo testified that he had many discussions with Kolego about “the merits of the plea offer” and the Sentencing Guidelines, and that his “understanding” based on these discussions was that he would receive a sentence of 87 months as Kolego “prediet[ed].” Jeronimo also testified that Kolego never raised the possibility of “career offender” sentencing during any of their discussions and that he would not have accepted the plea offer if he had known that he would receive a sentence of 151 months.

On cross-examination, Jeronimo continued to assert that he had “made a deal” with Kolego, stating: “I trusted in him ... and I signed for 87 months. When I realized that the sentence was longer, if I had realized, if I known that, I wouldn’t have sign[ed] it.” However, he conceded that he entered his plea with the understanding that his sentencing would be up to the judge, not Kolego. Jeronimo also admitted that “the deal that [he] made with his lawyer did not include what this judge was going to sentence [him] to”; that the government had warned him at his change of plea hearing that his prior convictions would be raised at sentencing, and the district court had observed that those facts would “likely affect the extent” of his sentence; that he had pleaded guilty with the understanding that he could receive a sentence of up to twenty years; and that he had received the benefit of his bargain because 151 months was less than twenty years.

In denying Jeronimo’s motion to withdraw his plea, the district court noted that Jeronimo’s argument that his defense attorney “blew the career offender issue” was “made without evidence from the attorney,” and that “even if that was the case ... a perfect attorney doesn’t exist.” This timely appeal followed.

II

We lack jurisdiction to entertain appeals where there was a valid and enforceable waiver of the right to appeal. United States v. Vences, 169 F.3d 611, 613 (9th Cir.1999) (“It would overreach our jurisdiction to entertain an appeal when the plea agreement effectively deprived us of jurisdiction.”). We review de novo whether a defendant has waived his right to appeal by entering into a plea agreement and the validity of such a waiver. United States v. Ventre, 338 F.3d 1047, 1051 (9th Cir.2003). A defendant’s waiver of his appellate rights is enforceable if (1) the language of the waiver encompasses his right to appeal on the grounds raised, and (2) the waiver is knowingly and voluntarily made. United States v. Joyce, 357 F.3d 921, 922 (9th Cir.2004); United States v. Martinez, 143 F.3d 1266, 1270-71 (9th Cir.1998).

A

We first must address the issue of whether Jeronimo’s waiver of his right to appeal precludes his challenge on direct appeal to the district court’s rejection of his request to withdraw his guilty plea, based on his assertion that fair and just reasons supported a change of plea. “Our analysis begins with the fundamental rule that plea agreements are contractual in nature and are measured by contract law standards.” United States v. Clark, 218 F.3d 1092, 1095 (9th Cir.2000) (internal citation and quotation marks omitted). This customary reliance on contract law applies to interpretation of an appeals waiver within a plea agreement, and we will generally enforce the plain language of a plea agreement if it is clear and unambiguous on its face. United States v. Nunez, 223 F.3d 956, 958 (9th Cir.2000); see also Martinez, 143 F.3d at 1271.

In Martinez, the defendant entered into a plea agreement with language similar to that here. The Martinez plea agreement provided that “[a]ny plea of guilty entered by Defendant pursuant to this agreement and any judgment and/ or sentence based thereon ... will not be the subject of legal challenge by Defendant.” 143 F.3d at 1270. In rejecting the defendant’s attempt to appeal his sentence on the grounds that the district court had misapplied the Sentencing Guidelines, we held that the defendant’s “waiver of any ‘legal challenge’ encompasses all appeals on all grounds except for a few narrow exceptions,² none of which apply here.” Id. at 1271. Similarly, in Nunez we held that an agreement stating that the defendant “knowingly and voluntarily waive[s] his right to appeal any sentence imposed by the Court” constituted an “unmistakable” waiver of the right to appeal. 223 F.3d at 958 (internal quotation marks omitted).

Here, Jeronimo’s agreement provides in pertinent part that:

By accepting the benefits of this agreement and if sentenced by the Court to a term of imprisonment of less than the statutory maximum of 20 years, Mr. Jer-onimo waives any and all rights to appeal, and all his waivable statutory rights to file a petition pursuant to 28 U.S.C. § 2255 challenging the length of his sentence.

This language plainly states that Jeronimo waived his right to appeal his sentence on any and all grounds in exchange for a sentence of less than twenty years and various other benefits under the agreement. Thus, based on Martinez and Nunez, we conclude that Jeronimo’s plea agreement clearly encompasses his right to bring the present appeal.

Jeronimo contends that the waiver language only covers his right to appeal on the grounds that his sentence was improper or violated the terms of the plea agreement; he argues that we have jurisdiction because the waiver does not specifically preclude him from appealing on the grounds that the district court abused its discretion. However, we dismissed a similar argument in United States v. Schuman, 127 F.3d 815, 817 (9th Cir.1997), where the appellant asserted that a plea agreement providing that he “waive[d] ... any right to appeal or collaterally attack the conviction and sentence” did not preclude him from challenging the district court’s application of the federal Sentencing Guidelines because the agreement failed to “specifically address his statutory right to appeal” on that basis. There we stated: “We reject [the appellant’s] contention that the language of the plea agreement does not specifically contemplate the statutory right to appeal incorrect applications of the Sentencing Guidelines for it would render the waiver meaningless.” Id. Accordingly, while Jeronimo’s plea agreement does not specifically contemplate the possibility of an appeal based on the district court’s denial of a motion to withdraw, its broad language clearly bars him from bringing this appeal.

B

Having concluded that Jeronimo’s waiver included the appeal he now advances, we next consider whether his waiver was knowing and voluntary. We follow the rule that a waiver of the right to appeal is knowing and voluntary where the plea agreement as a whole was knowingly and voluntarily made. As we stated in Portillo-Cano:

[WJaivers of appeal must stand or fall with the agreement of which they are a part. If the agreement is voluntary, and taken in compliance with Rule 11, then the waiver of appeal must be honored. If the agreement is involuntary or otherwise unenforceable, then the defendant is entitled to appeal.

192 F.3d at 1250 (internal quotation marks and citation omitted).

At least on its face, the district court’s extensive Rule 11 colloquy with Jeronimo shows that Jeronimo’s plea was knowingly and voluntarily made. The district court properly advised Jeronimo of the nature of the drug charges against him, the consequences of conviction, and the constitutional rights he was waiving by pleading guilty. The district court also summarized each of the terms of Jeronimo’s plea agreement, including the appeal waiver provision, and informed Jeronimo that his maximum possible penalty under the agreement was 20 years imprisonment and a fine of $1 million. Noting that the government would bring “relevant facts” to its attention, the district court further advised Jeronimo that it could depart from the applicable Sentencing Guidelines ranges for various reasons and told him not to rely on sentencing predictions made by others because “the judge decides the sentence.”

Jeronimo responded by acknowledging that he had discussed the Sentencing Guidelines with Kolego, and assuring the district court that his plea was “freely and voluntarily made.” Finally, when the government warned that it would raise Jeroni-mo’s prior convictions and status as an illegal alien and prison escapee at sentencing, the district court asked Jeronimo if he understood that such facts would “likely affect [his] sentence,” and Jeronimo said “yes.”

Nonetheless, Jeronimo claims that his attorney’s failure to advise him of all the possible consequences of a guilty plea deprived him of the information necessary to render his plea — and the waiver of appeal contained therein — truly knowing and voluntary.³

To demonstrate ineffective assistance of counsel, a defendant must show: (1) that his counsel’s performance was deficient;. and (2) that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This test applies to challenges to guilty pleas based on ineffective assistance of counsel claims. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

We first consider whether counsel Kolego’s performance is shown to be deficient on the record before us. “A defendant who pleads guilty upon the advice of counsel may only attack the voluntary and intelligent character of his guilty plea by showing that the advice he received from counsel was not within the range of competence demanded of attorneys in criminal cases.” United States v. Signori, 844 F.2d 635, 638 (9th Cir.1988). Because of the difficulties in evaluating attorney performance in hindsight, courts considering ineffective counsel claims “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

Here, the main thrust of Jeronimo’s ineffective assistance of counsel claim is that his attorney’s failure to consider and inform him of the possibility that he might be sentenced as a career offender constituted a “misrepresentation” that justifies withdrawal of his plea.

A guilty plea cannot be “induced by ... misrepresentation.” Signori, 844 F.2d at 638 (quoting Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)). We have also held that a defendant who pleads guilty in reliance on his or her attorney’s “gross mischaraeteri-zation of the likely outcome” of his or her case may be entitled to withdraw the plea on ineffective assistance of counsel grounds. Iaea v. Sunn, 800 F.2d 861, 865 (9th Cir.1986); see also U.S. v. Michlin, 34 F.3d 896, 899 (9th Cir.1994) (“We have held that an erroneous prediction by a defense attorney concerning sentencing does not entitle a defendant to challenge his guilty plea, although an exception might be made in a case of gross mischar-acterization of the likely outcome.”) (internal quotation marks and citations omitted).

However, as a general rule, we do not review challenges to the effectiveness of defense counsel on direct appeal. United States v. McKenna, 327 F.3d 830, 845 (9th Cir.2003). Thus, in McKenna, we declined to review an ineffective assistance of counsel claim on direct appeal because we concluded, inter alia, that we could not evaluate the defendant’s claim that counsel should have filed various motions because the “record [wa]s ... not developed with respect to why [the defendant’s] attorneys felt that the motionsfthe defendant] wanted filed were not warranted by the evidence.” Id.

To similar effect i's our decision in United States v. Laughlin, 933 F.2d 786, 788-89 (9th Cir.1991), where a defendant whose probation was revoked brought an ineffective assistance claim on direct appeal and contended that his counsel’s performance during his revocation hearing was so constitutionally deficient as to merit a new hearing. We declined to address the defendant’s claim because “[t]he record contained] little more than generalized assertions of incompetency.” Id. at 789. We stressed that “[flormer defense counsel has had no opportunity to explain his actions” and that the defendant had not “established any foundation for demonstrating that the alleged errors actually prejudiced the outcome of the hearing.” Id.

The rationale for our general rule, as explained in United States v. Birges, 723 F.2d 666, 670 (9th Cir.1984), is that ineffectiveness of counsel claims “usually ... cannot be advanced without the development of facts outside the original record.” Stated another way, a “[c]hallenge [to effectiveness of counsel] by way of a habeas corpus proceeding is preferable as it permits the defendant to develop a record as to what counsel did, why it was done, and what, if any, prejudice resulted.” Laughlin,, 933 F.2d at 788-89.

We have recognized two extraordinary exceptions to this general rule: We have permitted ineffective assistance claims to be reviewed on direct appeal in the unusual cases (1) where the record on appeal is sufficiently developed to permit determination of the issue, or (2) where the legal representation is so inadequate that it obviously denies a defendant his Sixth Amendment right to counsel. United States v. Daychild, 357 F.3d 1082, 1095 (9th Cir.2004).

In these exceptional cases, the reason for our general rule is inapplicable because development of further evidence is unnecessary to assess whether counsel performed below the constitutionally required standard. See, e.g., United States v. Anderson, 850 F.2d 563, 565 n. 1 (9th Cir.1988). But neither of these exceptions apply here; as Jeronimo points out, the record contains no evidence from Kolego. Contrary to the dissent’s argument, we do not suggest that evidence from Kolego is required because he might have made a “strategic decision” not to inform Jeronimo about the career offender issue. Rather, such evidence is necessary because, on the current state of the record, we cannot determine whether Kolego in fact failed to inform Jeronimo about that issue at all. Jeronimo cannot, at this stage on direct appeal, make out an ineffective assistance claim.

In light of the scope of the record on this direct appeal, we cannot now conclude that Jeronimo has shown that his plea agreement, which included an unequivocal waiver of his appeal rights, was involuntary and unenforceable. Further, “we will not remand a case from direct appeal for fact-finding related to an ineffective assistance of counsel claim, but allow a defendant to pursue the issue in district court collateral proceedings.” United States v. Reyes-Platero, 224 F.3d 1112, 1117 (9th Cir.2000).⁴

III

We lack jurisdiction to entertain this appeal because the appeal waiver in Jeron-imo’s plea agreement is unambiguous and the record as it is currently constituted demonstrate that the agreement was no^ knowingly and voluntarily made.⁵

APPEAL DISMISSED.

1 . On November 1, 2002, Federal Rule of Criminal Procedure 11 provided in pertinent part:

(c) Advice to Defendant. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following:

(1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect of any special parole or supervised release term, the fact that the court is required to consider any applicable sentencing guidelines but may depart from those guidelines under some circumstances, and, when applicable, that the court may also order the defendant to make restitution to any victim of the offense; and

(2) if the defendant is not represented by an attorney, that the defendant has the right to be represented by an attorney at every stage of the proceeding and, if necessary, one will be appointed to represent the defendant; and

(3) that the defendant has the right to plead not guilty or to persist in that plea if it has already been made, the right to be tried by a jury and at that trial the right to the assistance of counsel, the right to confront and cross-examine adverse witnesses, and the right against compelled self-incrimination; and

(4) that if a plea of guilty or nolo contende-re is accepted by the court there will not be a further trial of any kind, so that by pleading guilty or nolo contendere the defendant waives the right to a trial; and

(5) if the court intends to question the defendant under oath, on the record, and in the presence of counsel about the offense to which the defendant has pleaded, that the defendant’s answers may later be used against the defendant in a prosecution for perjury or false statement; and

(6) the terms of any provision in a plea agreement waiving the right to appeal or to collaterally attack the sentence.

(d) Insuring That the Plea is Voluntary. The court shall not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The court shall also inquire as to whether the defendant's willingness to plead guilty or nolo contendere results from prior discussions between the attorney for the government and the defendant or the defendant’s attorney.

Rule 11 was amended in December of 2002.

2 . There are a few well-established exceptions to appeal waivers under our case law. For example, a waiver of appeal will not bar an appeal where the defendant's guilty plea was not taken in compliance with Rule 11 of the Federal Rules of Criminal Procedure. United States v. Portillo-Cano, 192 F.3d 1246, 1252 (9th Cir.1999) (holding that waiver of right to appeal will not preclude an appeal where defendant’s plea allocution did not conform to the requirements of Rule 11). We have also held that where a judge advises a defendant, without qualification, that he or she has a right to appeal, the defendant will be deemed to have such a right even though it was waived in the plea bargain. United States v. Buchanan, 59 F.3d 914, 917-18 (9th Cir.1995). Additionally, a defendant can appeal his or her sentence notwithstanding a waiver of the right to appeal where the sentence imposed violates the law, United States v. Littlefield, 105 F.3d 527, 528 (9th Cir.1997), or is not in accordance with the negotiated agreement. United States v. Bolinger, 940 F.2d 478, 480 (9th Cir.1991). However, we do not consider whether these exceptions apply here because they were not raised in Jeronimo's appeal.

3 . Effectiveness of counsel is a mixed question of law and fact, reviewed de novo. United States v. Alaimalo, 313 F.3d 1188, 1191 (9th Cir.2002).

4 . We leave open the possibility that Jeronimo might raise his ineffective assistance argument on federal habeas procedure, through a § 2255 motion, notwithstanding that Jeroni-mo's appeal waiver covered “all his waivable statutory rights to file a petition pursuant to 28 U.S.C. § 2255 challenging the length of his sentence.”

Although a defendant may waive the statutory right to file a § 2255 petition "challenging the length of his sentence,” we do not decide whether such language would necessarily encompass a claim challenging the knowing and voluntary nature of the plea agreement (and accompanying waiver of § 2255 rights). Further, we do not decide whether even an express waiver of all § 2255 rights could be enforced to preclude an ineffective assistance claim implicating the voluntariness of the waiver itself. See United States v. Pruitt, 32 F.3d 431, 433 (9th Cir.1994) (expressing "doubt” that plea agreement could waive such a claim, but declining to reach the issue).

Those of our sister circuits considering this issue have uniformly held that a waiver of § 2255 rights cannot be enforced against a petitioner challenging the waiver’s validity on ineffective assistance of counsel grounds. See United States v. White, 307 F.3d 336, 341 (5th Cir.2002) ("[A] waiver of appeal may not be enforced against a section 2255 petitioner who claims that ineffective assistance of counsel rendered that waiver unknowing or involuntary.”); United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir.2001) ("[W]e hold that a plea agreement waiver of postconviction rights does not waive the right to bring a § 2255 petition based on ineffective assistance of counsel claims challenging the validity of the plea or the waiver.”); DeRoo v. United States, 223 F.3d 919, 924 (8th Cir.2000) ("A defendant's plea agreement waiver of the right to seek section 2255 post-conviction relief does not waive defendant's right to argue, pursuant to that section, that the decision to enter into the plea was not knowing and voluntary because it was the result of ineffective assistance of counsel.”); Jones v. United States, 167 F.3d 1142, 1145 (7th Cir.1999) (permitting defendant to file a § 2255 petition despite cooperation agreement containing § 2255 waiver because "[¡justice dictates that a claim of ineffective assistance of counsel in connection with the negotiation of a cooperation agreement cannot be barred by the agreement itself — the very product of the alleged ineffectiveness”). However, because the issue is not squarely presented in this case on direct appeal, we leave for another day our assessment of whether a waiver such as made by Jeronimo can be challenged through a § 2255 motion questioning the validity of the waiver.

5 . The dissent contends that we do not address whether Jeronimo’s plea "was knowingly and voluntarily made in light of his lawyer's representations." We disagree. We reviewed whether the plea was knowing and voluntary in light of the district court's plea colloquy. Because that colloquy was a model of what needs to be reviewed under Rule 11, the plea was not unknowing or involuntary on its face. The dissent incorrectly urges that we cite no authority,-for the statement that the plea was knowing and voluntary on its face because it satisfied Rule 11. We quoted from Portillo-Cano the rule that a waiver must be honored when the plea agreement is voluntary and taken in compliance with Rule 11. 192 F.3d at 1250. Because the point of Rule 11 is to ensure that a plea is knowing and voluntary, Rule 11 also is authority for our decision. See Fed.R.Crim.P. ll(c)-(d) (2001) (provisions entitled "Advice to Defendant” and "Insuring That the Plea is Voluntary”); Fed.R.Crim.P. 11 advisory committee’s note, 1975 Enactment (amended Rule 11(c) and (d) outline advice the court must give the defendant and "the steps that the court must take to insure that a ... plea has been voluntarily made.”). More precedents might be considered, see, e.g., McCarthy v. United States, 394 U.S. 459, 465, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969) (Rule 11 "is designed to assjst the district judge in making the constitutionally required determination that a defendant's guilty plea is truly voluntary”); United States v. Youpee, 419 F.2d 1340, 1344 (9th Cir.1969) ("Rule 11 precludes a judge from accepting a defendant's plea of guilty without 'first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea.' ”), but they lead to the same conclusion; A colloquy satisfying Rule ll’s requirements will lead to a plea being considered knowing and voluntary, unless some misrepresentation or gross mischar-acterization by counsel has tainted the plea. See Section II.B. If Jeronimo's counsel made erroneous predictions, that would be insufficient under our precedents to render his plea unknowing or involuntary, unless Jeronimo could establish that his counsel made misrepresentations or gross mischaracterizations. See id.

The unavoidable problem with the dissent's argument is that the record contains no evidence of such misrepresentation or gross mis-characterization by counsel Kolego. The dissent urges that we ignore Jeronimo’s hearing testimony and are "plain wrong” in suggesting that "there is no record on the issue” of ineffectiveness. We did not ignore Jeroni-mo’s testimony, and have not said that there is no record, but more precisely that the record is inadequate as it now stands in light of Jeronimo's comprehensive plea colloquy and the absence of evidence of his counsel's position. For while Jeronimo testified that he understood he had a "deal” with Kolego for a lesser sentence, he did not give evidence of any misrepresentation or gross mischaracteri-zation by Kolego, and in his colloquy he acknowledged that he understood the judge would set die sentence regardless of what Kolego might have predicted. This is why the case cannot yield immediate relief, although Jeronimo may seek relief through habeas proceedings if he can marshal supportive evidence.

The dissent also argues that ineffective assistance was raised and litigated in the district court, as a reason not to defer to collateral proceedings. But the issues whether there were misrepresentations or gross mischarac-terizations were not litigated. They were not even raised explicitly. Instead, Jeronimo's new counsel at the plea withdrawal hearing said that he was "not telling the court that [Jeronimo] was tricked by [former counsel Kolego],” and Jeronimo's testimony was only that he understood he had a deal with Kolego for a lighter sentence and that he had been unaware of the possibility of career offender sentencing.

The dissent's reliance on Signori is unpersuasive. In Signori, we rejected an ineffective assistance claim on direct appeal because although the defendant had submitted nothing more than his "unsworn contention ... that he had been misled by counsel," his original counsel had submitted a sworn affidavit specifically denying each of the defendant's allegations. 844 F.2d at 639. By contrast, here we have nothing from Jeronimo or his former counsel to illuminate "what counsel did, why it was done, and what, if any, prejudice resulted.” Laughlin, 933 F.2d at 788-89. While there is Jeronimo's testimony on what he thought his sentence per a "deal” with counsel would be, there is no evidence in the record that counsel misled him or grossly mischaracterized the sentence he would receive. Nor is there evidence from counsel to prove the converse, as in Signori.

The dissent's argument that we should remand for fact-finding runs contrary to our circuit's precedent that the proper procedure is not to remand but to let Jeronimo develop his argument in collateral proceedings. See Section II.B.