Not for Publication in West's Federal Reporter

          United States Court of Appeals
                      For the First Circuit

No. 10-1858

                    UNITED STATES OF AMERICA,

                               Appellee,

                                    v.

                        NOEL ROSARIO-COLÓN,

                       Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF PUERTO RICO

       [Hon. Carmen Consuelo Cerezo, U.S. District Judge]


                                 Before

                    Boudin, Stahl and Howard,
                          Circuit Judges.



     Carlos M. Sánchez La Costa, by Appointment of the Court, on
brief for appellant.
     Nelson Pérez-Sosa, Assistant United States Attorney, Rosa
Emilia Rodriguez-Velez, United States Attorney, and Julia M.
Meconiates, Assistant United States Attorney, on brief for
appellee.



                             July 25, 2011
            STAHL, Circuit Judge.       Defendant-appellant Noel Rosario-

Colón pled guilty to aiding and abetting the impersonation of an

officer of the United States in violation of 18 U.S.C. §§ 2 and 912

(count one), interference with commerce by threats or violence in

violation of 18 U.S.C. §§ 2 and 1951 (count two), and carriage of

a firearm during a crime of violence in violation of 18 U.S.C. §§

2 and 924(c) (count three).          The district court sentenced him to a

term of twenty-four months' imprisonment to be served consecutively

to an undischarged sentence that he was then serving for a prior

criminal conviction in case number 06-270 (JAG), which involved

similar offenses.        Rosario-Colón appeals on the ground that his

counsel was ineffective in failing to argue that his term of

imprisonment should run concurrently, rather than consecutively, to

his undischarged sentence.           We affirm the judgment below without

prejudice     to    Rosario-Colón's     right     to   raise   his   claim   of

ineffective assistance of counsel on collateral review because a

collateral proceeding brought under 28 U.S.C. § 2255, and not a

direct appeal, is usually the proper vehicle for a claim of

ineffective        assistance   of     counsel,    particularly      when    the

evidentiary record is insufficient to evaluate the claim.                    See

United States v. García-Pastrana, 

, 388 (1st Cir. 2009)

(citing United States v. Genao, 

, 313 (1st Cir. 2002)).

            We recount the facts as stated during the change-of-plea

colloquy, the plea agreement, and the uncontested portions of the


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presentence investigation report. United States v. Ríos-Hernández,

__ F.3d __, No. 09-2545, 

, at *1 (1st Cir. June 2,

2011). On May 5, 2006, Rosario-Colón and two co-defendants dressed

in law enforcement tactical uniforms with holstered weapons and,

pretending to be federal agents, conducted a traffic stop in Puerto

Rico.1   They demanded and obtained $5000 from two Puerto Rican

citizens under the guise that the money being seized was part of a

federal money    laundering    investigation.      At   the time   of   the

incident, Rosario-Colón was a sergeant for the Commonwealth of

Puerto Rico Police Department.

          On October 13, 2009, pursuant to a negotiated plea

agreement, Rosario-Colón pled guilty to the three charged offenses.

The plea agreement provided for a total recommended sentence of 78

months based on a sentencing guideline range of 18 - 24 months for

counts one and two and a statutorily mandated consecutive sentence

of 60 months for count three.     The parties' calculations assumed a

Criminal History Category ("CHC") of I, although the agreement did

not stipulate to a CHC assessment.       The agreement also reserved to

the parties the right to argue whether the sentence should run

concurrently or consecutively to the sentence imposed in case

number 06-270.

          Before sentencing, the district court ordered the filing



     1
      The record does    not    indicate   where   in   Puerto   Rico   the
incident occurred.

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of simultaneous memoranda of law speaking to: (1) the assignment of

criminal history points to Rosario-Colón due to his conviction in

case number 06-270; and (2) whether, in view of the plea agreement,

the sentence imposed should run concurrently or consecutively to

his prior, undischarged sentence.              The government submitted a

memorandum of law that argued for a consecutive sentence, and it

subsequently     filed     a   supplemental    memorandum   asserting        that

Rosario-Colón should be assigned criminal history points. As noted

by the district court when it ordered the government to file the

supplemental memorandum, counsel for Rosario-Colón showed a "total

disregard"     for   the   court's    order,    having   failed    to   file    a

memorandum of law that addressed either issue.

          Before the district court ruled, both parties moved to

dismiss count three of the operative indictment, and the court did

so without prejudice.2         Then, after review of the government's two

submissions, the district court found that Rosario-Colón's criminal

history resulted in 3 criminal history points, a CHC of II, and a

revised advisory guideline range of 21 - 27 months.               It also held

that the issuance of a concurrent or a consecutive sentence was

within   its    sound      discretion.        Upon   consideration      of    the

government's arguments, the sentencing factors set forth in 18



     2
      A report and recommendation issued as to one of Rosario-
Colón's co-defendants precipitated the motions, in which it found
that the elements of count three at least partially contradicted
the elements of count two, warranting count three's dismissal.

                                      -4-
U.S.C. § 3553(a), and aspects related to the prior, undischarged

sentence, the court found that a fully consecutive sentence was the

most reasonable punishment.

            Sentencing      followed.          At   the     hearing,     counsel    for

Rosario-Colón reminded the court of the dismissal of count three

and    stated   that   he   and   his     client         agreed   on   the    sentence

recommended by the probation office and government. The government

then   requested   that     Rosario-Colón           be    sentenced     to   the   full

guideline range of     27 months and that it run consecutively to the

undischarged     sentence.        Upon    consideration           of   the   guideline

calculations and sentencing factors, the district court sentenced

Rosario-Colón to 24 months as to counts one and two, to be served

concurrently with each other and consecutively with the prior

sentence.

            On appeal, Rosario-Colón raises an ineffective assistance

of counsel claim based on his counsel's failure to argue for a

sentence concurrent with that in case number 06-270 despite the

plea agreement's contemplation of such argument and the district

court's order to submit a memorandum on the issue.                     To satisfy the

requirements of an ineffective assistance claim, a defendant must

show that: "(1) counsel's performance fell below an objective

standard of reasonableness, and (2) the deficient performance

resulted in prejudice to the applicant."                   West v. United States,

, 567 (1st Cir. 2011) (citing Strickland v. Washington,


                                         -5-


, 687 (1984)).

          Rosario-Colón has not yet presented his claim to the

district court, and, consequently, it is not ripe for review. This

circuit has "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 

, 1063 (1st Cir. 1993);

see also, e.g., United States v. Rivera-Gonzalez, 

,

644-45 (1st Cir. 2010); United States v. Torres-Oliveras, 

, 43 (1st Cir. 2009); cf. Massaro v. United States, 

(2003) (permitting ineffective assistance claims to be brought in

the first instance under § 2255).

          To be sure, we have recognized 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, 

, 309 (1st Cir. 1991); see also United States v. Wyatt, 

, 52 (1st Cir. 2009) (noting exception to rule when "trial

counsel's ineffectiveness is manifestly apparent from the record").

Despite Rosario-Colón's urgings, however, this case, does not fall

within the exception.   For example, from the record before us we

are left to speculate whether defense counsel's failure to argue

for a concurrent sentence was a strategic decision in view of the


                                -6-
dismissal of count three or, instead, an unintentional oversight.

Further, we are not properly positioned to analyze whether any

alleged deficiency prejudiced Rosario-Colón.          See 

("[I]t is the trial court, rather than the

appellate court, that is in the best position to assess whether

counsel's    performance,    if    it   was   in    fact    constitutionally

deficient, resulted in prejudice to the appellant's substantial

rights, as required under Strickland." (internal marks omitted)

(quoting United States v. Ofray-Campos, 

, 34 (1st Cir.

2008))).

            Thus, we affirm the judgment below without prejudice to

Rosario-Colón's     right   to    reassert    his   claim   of   ineffective

assistance of counsel in a separate proceeding brought under

28 U.S.C. § 2255.

            So ordered.




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