author: WALLACH, Circuit Judge.

text:
    DELLEW CORPORATION, Plaintiff-Appellee v. UNITED STATES, Defendant-Appellant Tech Systems, Inc., Defendant
    2016-2304
    United States Court of Appeals, Federal Circuit.
    Decided: May 1, 2017

      Appeal from the United States Court of Federal Claims in No. l:15-cv-00808-MMS, Judge Margaret M. Sweeney.
    Adam K. Lasky, Oles Morrison Rinker & Baker LLP, Seattle, WA, argued for plaintiff-appellee. Also represented by Shaun Christopher Kennedy.
    Erin Murdock-Park, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellant. Also represented by Benjamin C. Mizer, Robert E. Kirschman, Jr., Allison Kidd-Miller.
    Before LOURIE, REYNA, and WALLACH, Circuit Judges.
   WALLACH, Circuit Judge.

Appellant United States (“the Government”) appeals the opinion and order of the U.S. Court of Federal Claims awarding attorney fees and costs to Appellee Dellew Corporation (“Dellew”) pursuant to the Equal Access to Justice Act (“the EAJA”), 28 U.S.C. § 2412(a), (d)(1)(A) (2012). The central question here is whether comments that the Court of Federal Claims made during a hearing and prior to the Government taking corrective action materially altered the relationship between the parties such that Dellew qualified as a “prevailing party” under the- EAJA. The Court of Federal Claims found its comments sufficient to confer prevailing party status on Dellew. See Dellew Corp. v. United States (Dellew ID, 127 Fed.Cl. 85, 89-95 (2016). We reverse because a strong comment by a trial court is not tantamount to a ruling on the merits or a court order.

Background

The parties do not dispute the facts material to the instant appeal. The U.S. Department of the Army (“the Army”) awarded a contract to Tech Systems, Inc. (“TSI”) for “logistics support services” at the Schofield Barracks in Hawai’i. Id. at 87 (citation omitted). Dellew filed a post-award bid protest against the Government in the Court of Federal Claims, alleging that the Army improperly awarded TSI a contract because (1) TSI did not accept a material term of the request for proposals when it refused to cap its proposed general and administrative rate, and (2) the contract awarded varied materially from TSI’s proposal. J.A. 53-56. Dellew also argued that the Army failed to perform an adequate cost realism analysis before awarding the contract to TSI. J.A. 56-57.

After the Government filed the administrative record and the parties briefed the merits, the Court of Federal Claims held oral argument. Dellew II, 127 Fed.Cl. at 87. During oral argument, the Court of Federal Claims provided “hint[s]” about its views favorable to Dellew on the merits, J.A. 65; see J.A. 70-71 (discussing cost realism), 79 (discussing the general and administrative rate), 112-13 (discussing change in material terms), and stated that it had drafted an opinion, J.A. 143-44. The Court of Federal Claims also repeatedly expressed its belief that corrective action would be appropriate. J.A. 126 (“I also would strongly suggest to the Army that they think about taking corrective action .... ”), 128 (“[A] corrective action should be taken in this case.... ”), 137 (similar), 139 (similar), 145-46 (similar). Indeed, the Court of Federal Claims encouraged the Army to “tak[e] corrective action now” so that it could avoid issuing “a needless ruling.” J.A. 126. The Court of Federal Claims set a schedule for the parties to provide a joint status report approximately ten days after the hearing, J.A. 152, 156-57, and explicitly agreed not to issue a decision until it received the report, J.A. 153. The Court of Federal Claims also left open the possibility of additional briefing. J.A. 68-69, 126.

In the Joint Status Report, the Government announced that the Army had determined that certain changes in conditions had occurred, resulting in a de-crease in the contract value and requiring an amendment to the solicitation. J.A. 163. As a result of these changed conditions, “as well as the discussions held at oral argument ..., the Army determined to take corrective action.” J.A. 163. The Army subsequently terminated the contract with TSI, and the Government filed a motion to dismiss Dellew’s protest as moot in light of the corrective action.

The Court of Federal Claims granted the Motion and dismissed Dellew’s action. Dellew Corp. v. United States (Dellew I), 124 Fed.Cl. 429, 432-33 (2015). In dismissing the action, the Court of Federal Claims declined Dellew’s invitation to “issue findings of fact and conclusions of law that [Dellew] is a ‘prevailing party’ ” because doing so would require the Court of Federal Claims to “issue an advisory opinion.” Id. at 432 n.2. Notwithstanding mootness, the Court of Federal Claims determined that it retained jurisdiction over the action. Id. at 432.

Dellew subsequently sought attorney fees and costs from the Government under the EAJA, and the Court of Federal Claims awarded Dellew a total of $79,456.76 in fees and costs. See Dellew II, 127 Fed.Cl. at 101. Relevant here, the Court of Federal Claims held that it made “numerous substantive comments during oral argument regarding the merits,” id. at 92, that “carried a sufficient judicial imprimatur to materially alter the relationship between [Dellew] and [the Government] such that [Dellew] qualifies as a prevailing party under the EAJA,” id. at 89. After surveying the relevant authorities, id. at 89-92, the Court of Federal Claims articulated four grounds for its decision, id. at 92-94. First, it explained that, at oral argument, it “clearly stated its view that” the Government would lose on the merits and “that it there-fore intended to rule in Del-lew’s favor with respect to th[e] issue[s].” Id. at 92. Second, it stated that it “made clear its view that the Army should take corrective action.” Id. at 93. Third, it determined that the Army’s corrective action was not voluntary. Id. at 94. Finally, it explained that its comments were made after the parties briefed the case and after it had drafted (though not issued) a written decision. Id. Taken together, the Court of Federal Claims held that the Government knew “how it intended to rule” and, thus, found it appropriate to confer prevailing party status on Dellew. Id. at 92.

The instant appeal followed. We possess subject matter jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).

Discussion

I. Standard of Review

We generally review the award of attorney fees and costs under the EAJA for an abuse of discretion. See Int’l Custom Prods., Inc. v. United States, 843 F.3d 1355, 1358 (Fed. Cir. 2016). However, “[t]he question of whether a party qualifies as a ‘prevailing party under the EAJA is a question of law” that we “review de novo.” Rice Servs., Ltd. v. United States, 405 F.3d 1017, 1021 (Fed. Cir. 2005) (citation omitted).

II. The Court of Federal Claims Improperly Awarded Attorney Fees and Costs to Dellew Under the EAJA

A. Legal Framework

“In the United States, parties are ordinarily required to bear their own attorney[] fees — the prevailing party is not entitled to collect from the loser.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 602, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). Described as the “American Rule,” that practice proscribes an award of attorney fees unless otherwise provided by statute. Id. Absent a waiver of sovereign immunity, a party may not recover attorney fees in suits against the Government. See Chiu v. United States, 948 F.2d 711, 714 (Fed. Cir. 1991).

The EAJA waives the sovereign immunity of the United States to enable certain parties to seek attorney fees and costs against the Government under certain circumstances. See Fidelity Constr. Co. v. United States, 700 F.2d 1379, 1385-86 (Fed. Cir. 1983). The EAJA provides that

a court shall award to a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action ... brought by or against the United States ... unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

28 U.S.C. § 2412(d)(1)(A) (emphasis added). The appeal hinges .on whether Dellew meets the definition of “prevailing party” under the EAJA.

Neither a statute nor a regulation defines “prevailing party” for EAJA purposes. However, the Supreme Court has held that “prevailing party,” as used in other statutes, means a party that obtains a “material alteration of the legal relationship of the parties.” Buckhannon, 532 U.S. at 604, 121 S.Ct. 1835 (internal quotation marks and citation omitted). The Supreme Court also explained that the change in the parties’ legal relationship must have a certain “judicial imprimatur,” id. at 605, 121 S.Ct. 1835, such as an “enforceable judgment ] on the merits” or a “court-ordered consent decree[],” id. at 604, 121 S.Ct. 1885 (citation omitted). It further held that a prevailing party does not include a party who obtained relief through “a defendant’s voluntary change in conduct.” Id. at 605, 121 S.Ct. 1835. We extended these principles to the EAJA, see Brickrwood Contractors, Inc. v. United States, 288 F.3d 1371, 1377-79 (Fed. Cir. 2002), and later explained that the Buckhannon “threshold can also be met by other court action ‘equivalent’ to a judgment on the merits or a court-ordered consent decree,” as long as “it carries sufficient judicial imprimatur to materially change the legal relationship of the parties,” Rice, 405 F.3d at 1026.

B. Dellew Is Not a Prevailing Party Under the EAJA

The Government contends that the Court of Federal Claims committed three errors in determining that Dellew qualifies as a prevailing party under the EAJA. See Appellant’s Br. 16-29. We agree with each of the Government’s arguments and address them in turn.

1. The Government Voluntarily Took Corrective Action

The first argument concerns the nature of the Government’s corrective action. The Court of Federal Claims held that “the Army did not voluntarily decide to take corrective action” because “[i]t only did so following ... the [Government's realization that the court was not swayed by its argument” and otherwise “understood how the court intended to rule.” Dellew II, 127 Fed.Cl. at 94, 95. The Government argues that, “[bjecause the Army acted without any corresponding court order requiring such action,” the Army voluntarily took corrective action such that the Court of Federal Claims could not have made the requisite change in the legal relationship between the parties. Appellant’s Br. 17; see id. at 17-19.

Precedent firmly weighs in the Government’s favor. It is undisputed here that the Government took corrective action before the Court of Federal Claims issued a written or oral ruling on the merits. See Dellew II, 127 Fed.Cl. at 92 (“In the case at bar, the court did not issue a written opinion on the merits. Nor did the court issue a consent decree based on an agreement between the parties. The court did, however, make numerous substantive comments during oral argument regarding the merits of the case and how it intended to rule....” (emphases added)). Irrespective of the Court of Federal Claims’s expectations about a future ruling or its impressions as to the Government’s motivation for taking the corrective action, an agency acts voluntarily if it takes corrective action before the Court of Federal Claims provides a written or oral ruling on the merits that changes the parties’ legal relationship. See Rice, 405 F.3d at 1027 (explaining that. an agency acts “voluntarily” if it undertakes “remedial action before any rulings by the Court of Federal Claims”). Voluntary action cannot provide a sufficient basis for a court to confer prevailing status on a party. See Buckhannon, 532 U.S. at 605, 121 S.Ct. 1835 (“A defendant’s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change.”). To hold otherwise would reanimate the catalyst theory that the Supreme Court rejected in Buckhannon. See id. at 601, 605, 121 S.Ct. 1835 (explaining that the “catalyst theory ... posits that a plaintiff is a ‘prevailing party’ if it achieves the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct” and rejecting that theory as inconsistent with precedent).

2. The Court of Federal Claims’s Comments Lacked Sufficient Judicial Imprimatur to Materially Change the Legal Relationship of the Parties

The second argument concerns the substance of the comments that the Court of Federal Claims made during the hearing. Because it stated its intent “to rule in Dellew’s favor” and emphasized that “the Army should take corrective action,” the Court of Federal Claims determined that its comments carried a sufficient judicial imprimatur to change the parties’ legal relationship. Dellew II, 127 Fed.Cl. at 92, 93; see id. at 92-94. The Government argues that the Court of Federal Claims’s comments did not carry a sufficient judicial imprimatur to materially change the legal relationship of the parties because they did not constitute “court-ordered relief.” Appellant’s Br. 19 (capitalization omitted); see id. at 19-22. Without the requisite imprimatur, the Government alleges that Dellew does not constitute a prevailing party under the EAJA. See id. at 19-22.

Our decision in Brickwood firmly resolves this aspect of the prevailing party question. There, we determined that comments about the merits made by the Court of Federal Claims during a hearing did not constitute sufficient grounds upon which to confer prevailing party status pursuant to the EAJA. See 288 F.3d at 1380-81. Absent an “oral judgment,” id. at 1381, we held that “the cited comments are clearly not sufficient to establish a judicial imprimatur and they do not constitute a ‘court-ordered change in the legal relationship’ of the parties as Buckhannon requires,” id. at 1380. Here, the Court of Federal Claims at most described how it “intended” to rule. Dellew II, 127 Fed.Cl. at 92. Indeed, the Court of Federal Claims encouraged, but did not require, the Army to take particular action. See, e.g., J.A. 126 (“I also would strongly suggest to the Army that they think about taking corrective action .... ”); see also J.A. 145, 147 (using “if’ and “when” to describe the scope of any potential Army corrective action). Moreover, the Court of Federal Claims offered the Government an opportunity for further briefing, leaving open how the case would proceed, and it explicitly postponed a ruling pending receipt of the Joint Status Report. See, e.g., J.A. 68-69, 150, 153. The Court of Federal Claims’s comments as a whole demonstrate that it did not require the Government to act in any manner; instead, it offered the Government an opportunity to take whatever corrective action it believed might be appropriate. Without more, the Court of Federal Claims’s comments did not carry a sufficient judicial imprimatur to change the legal relationship between the parties.

Apart from conflicting with precedent, the Court of Federal Claims adopted an unworkable standard that equates a nonbinding oral comment with a ruling. The Court of Federal Claims knows how to rule orally when the circumstances so require. See, e.g., Orion Tech, Inc. v. United States, 101 Fed.Cl. 492, 493 (2011) (stating that its decision “explains in more detail the oral rulings made by the court” in a prior hearing). In the absence of an oral ruling, experience teaches us that comments made from the bench do not always match the content of a later written opinion. For that reason, unless the issue on appeal concerns an oral ruling, we generally “rely on the court’s written opinion rather than its oral statement during a hearing.” Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1331 (Fed. Cir. 2004). To hold otherwise would require parties to divine the presiding court’s actual holding from the often messy entrails of spontaneous comments. That kind of divination has no support in a legal system which values predictability as a pillar of the rule of law.

3. The Court of Federal Claims Failed to Follow Relevant Precedent

The final argument concerns the legal authority relied upon by the Court of Federal Claims. Throughout its decision, the Court of Federal Claims relied substantially upon its decision in Universal Fidelity LP v. United States, 70 Fed.Cl. 310 (2006). See Dellew II, 127 Fed.Cl. at 91-92, 94-95. In Universal Fidelity, the Court of Federal Claims held that a preliminary order intending to enjoin a solicitation carried a sufficient judicial imprimatur to materially change the parties’ legal relationship and, thus, to confer prevailing party status on the plaintiff. See 70 Fed.Cl. at 314-16. The Government avers that the Court of Federal Claims improperly relied upon Universal Fidelity and failed to follow our binding precedent. See Appellant’s Br. 22-26.

The Court of Federal Claims erred in relying upon Universal Fidelity for two reasons. First, the Court of Federal Claims gave greater weight to Universal Fidelity than Buckhannon, Rice, and Brickwood. See Dellew II, 127 Fed.Cl. at 94-95 (“[T]he court concludes that there is good cause to extend the holding in Universal Fidelity [ ], which dealt with a written order, to the oral comments made in this case. In both cases: (1) the matter was fully briefed at the time the statements were made, (2) the court arrived at legal conclusions after considering the merits of

the parties’ positions, (3) the parties were made aware of those legal conclusions, and (4) defendant took corrective action after having been made aware of the court’s position.”). We reaffirm a well-known principle that the Court of Federal Claims failed to follow here: the Court of Federal Claims must follow relevant decisions of the Supreme Court and the Federal Circuit, not the other way around. See Coltec Indus., Inc. v. United States, 454 F.3d 1340, 1353 (Fed. Cir. 2006) (“There can be no question that the Court of Federal Claims is required to follow the precedent of the Supreme Court, our court, and our predecessor court, the Court of Claims.” (citation omitted)). Second, even if it had the same authoritative weight as decisions of superior courts, Universal Fidelity is distinguishable. Unlike here, the Court of Federal Claims in Universal Fidelity reduced its views of the merits to an order. See 70 Fed.Cl. at 311. For these reasons, the Court of Federal Claims improperly relied upon Universal Fidelity to find that Dellew qualified as a prevailing party under the EAJA.

Conclusion

We have considered the parties’ remaining arguments and find them unpersuasive. Accordingly, the Opinion and Order of the U.S. Court of Federal Claims awarding attorney fees and costs to Dellew under the EAJA is

REVERSED

Costs

Costs to the Government.

      . A cost realism analysis requires the Government to
      independently review[] and evaluate] specific elements of each offeror’s proposed cost estimate to determine whether the estimated proposed cost elements are realistic for the work to be performed; reflect a clear understanding of the requirements; and are consistent with the unique methods of performance and materials described in the offeror’s technical proposal.
      48 C.F.R. § 15.404-1(d)(1) (2015).

      . Although not defined by statute or regulation, “corrective action” in the bid protest context generally means “agency action, usually taken after a protest has been initiated, to correct a perceived prior error in the procurement process, or, in the absence of error, to act to improve the competitive process.” Appellant's Br. 2 n.1.

      . Of course, if precedent from the Supreme Court and our court does not answer the particular question presented, the Court of Federal Claims may rely upon its own decisions. Even then, "Court of Federal Claims decisions, while persuasive, do not set binding precedent for separate and distinct cases in that court.” W. Coast Gen. Corp. v. Dalton, 39 F.3d 312, 315 (Fed. Cir. 1994) (citations omitted).

      . Throughout its response brief, Dellew argues that the court should follow, inter alia, the Seventh Circuit’s decision in Palmetto Properties, Inc. v. County of DuPage. See Appellee’s Br. 18-55 (discussing 375 F.3d 542 (7th Cir. 2004)). The Seventh Circuit's decision does not control here because our decisions in Rice and Brickwood are dispositive, and we must follow them. See Deciders Corp. v. United States, 752 F.3d 949, 959 (Fed. Cir. 2014) (“[A] later panel is bound by the determinations of a prior panel, unless relieved of that obligation by an en banc order of the court or a decision of the Supreme Court.”).


source: Caselaw Access Project

author: SOUTER, Associate Justice.

license: Public Domain

text:
    HEARTS WITH HAITI, INC., and Michael Geilenfeld, Plaintiffs, Appellees, v. Paul KENDRICK, Defendant, Appellant. Hearts With Haiti, Inc., and Michael Geilenfeld, Plaintiffs, Appellants, v. Paul Kendrick, Defendant, Appellee.
    No. 15-2401, No. 16-1839
    United States Court of Appeals, First Circuit.
    April 27, 2017

      Russell B. Pierce, Jr., with whom Norman, Hanson & DeTroy, LLC, Portland, ME, was on brief, for Hearts With Haiti, Inc., and Michael Geilenfeld.
    Brent A. Singer, with whom Matthew M, Cobb and Rudman Winehell, Bangor, ME, were on brief, for Paul Kendrick.
    Before HOWARD, Chief Judge, SOUTER, Associate Justice, and STÁHL, Circuit Judge.

       Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation.

   SOUTER, Associate Justice.

Hearts With Haiti, Inc., and Michael Geilenfeld brought this action against Paul Kendrick alleging defamation, false light invasion of privacy, and tortious interference with business relations. The claims were based on Kendrick’s public accusations that Geilenfeld sexually abused boys in an orphanage he personally operated in Haiti and that the abuse was enabled by Hearts With Haiti, a North Carolina corporation that raised funds for the orphanage. A jury found for the Plaintiffs with separate awards of damages totaling $14.5 million. Kendrick appealed. While the appeal was pending, Kendrick’s lawyer discovered a plausible argument that federal subject-matter jurisdiction was lacking. This court remanded the case to the district court to address Kendrick’s argument in the first instance, and the district court dismissed the action for lack of diversity jurisdiction. Hearts With Haiti, Inc. v. Kendrick, 192 F.Supp.3d 181 (D. Me. 2016). Now, the Plaintiffs appeal the dismissal, and Kendrick appeals with claims of trial error. We affirm the dismissal, thus resolving both appeals.

Federal subject-matter jurisdiction over this dispute is premised on diversity of citizenship, requiring the allegation in a case of domestic-citizen diversity that each plaintiff is a citizen of a different state from the defendant’s. See 28 U.S.C. § 1332(a)(1). “In order to be a citizen of a State within the meaning of the diversity statute, a natural person'must be both a citizen of the United States and be domiciled within the State.” Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989) (emphasis in original); accord D.B, Zwirn Special Opportunities Fund, L.P. v. Mehrotra, 661 F.3d 124, 126 (1st Cir. 2011) (“United States citizens who are domiciled abroad are citizens of no state[.]”). Domicile is “the place where [one] has his true, fixed home .and principal establishment, and to which, whenever he is absent, he has the intention of returning.” Rodriguez-Díaz v. Sierra-Martinez, 853 F.2d 1027, 1029 (1st Cir. 1988) (internal quotation marks omitted). The district court held jurisdiction wanting because it found that Geilenfeld was domiciled in Haiti and thus not a citizen of a state for the purposes of diversity jurisdiction. The trial court’s conclusion was not clearly erroneous. Bank One, Tex., N.A. v. Montle, 964 F.2d 48, 51 (1st Cir. 1992) (a district court’s determination of domicile is reviewed for clear error).

For more than two decades, Geilenfeld has lived in Haiti, where he owns property, is employed, pays taxes, and intends to be buried. In a pre-trial deposition, he described his “status in Haiti” as that of “permanent resident.” It is true, as the Plaintiffs point out, that Geilenfeld has connections to Iowa as well: he was born and raised there, holds an Iowa bank account and an Iowa driver’s license, is registered to vote in Iowa, and occasionally visits Iowa. But in reality these bare facts are inconsequential. Not long after graduating from high school, Geilenfeld left Iowa to engage in foreign missionary work for a Roman Catholic missionary order; the bank account is largely, if not exclusively, used as a conduit of funds to support his orphanage in Haiti; his only motor vehicle is jointly owned in Haiti; he has not voted in Iowa since 1972; and on his occasional visits to the state he stays in the guest room of a family friend, since he owns no Iowa real estate.

While the Plaintiffs try, on both legal and factual grounds, to minimize the significance of this latter evidence, their efforts are to no avail. Their legal argument is that the determination of state citizenship of a United States citizen within the meaning of § 1332(a)(1) should turn on one controlling fact: the state of voting registration. In an attempt to soften the radicalism of this proposal, they cite Shelton v. Tiffin, 47 U.S. (6 How.) 163, 12 L.Ed. 387 (1848), as suggesting as much. But Shelton’s discussion of the law of domicile expressly stops short of accepting the Plaintiffs’ position. Although the place of actually exercising the franchise was said to be dispositive, the Court viewed registration without voting as inconclusive: “acquiring a right of suffrage, accompanied by acts which show a permanent location, unexplained, may be sufficient.” Id. at 185. More to the point, of course, is the most recent expression of the Supreme Court’s understanding that state citizenship for purposes of diversity jurisdiction requires national citizenship plus state domicile, which we take to mean domicile as traditionally understood, Newman-Green, 490 U.S. at 828, 109 S.Ct. 2218; we read Newman-Green’s citation of Chief Justice Marshall’s opinion in Brown v. Keene, 33 U.S. (8 Pet.) 112, 115, 8 L.Ed. 885 (1834), see Newman-Green, 490 U.S. at 828, 109 S.Ct. 2218, as indicating that the later Court understood domicile as determined through the traditional multi-factual enqui-ry. Accordingly, this circuit has declined to invest the fact of voting registration with conclusive evidentiary significance on the question of domicile. See Bank One, 964 F.2d at 50.

The Plaintiffs’ second point calling for attention goes to the district court’s assignment of substantial weight to Geilen-feld’s long Haitian residence as an evi-dentiary fact running counter to the presumption that domicile endures once it is acquired. See id. (presumption favoring continuing domicile). The Plaintiffs’ argument is that a missionary moves to a foreign place to serve its people, not to further personal interests. They accordingly object to the district court’s emphasis on Geilenfeld’s personal choice to live in Haiti and operate his orphanage after leaving the religious order that first assigned him to work there but later sent him elsewhere. There is, however, no religious exception to the criteria of domicile, and because the individual’s intent is a primary subject of those criteria, there was no error in giving weight to Geilenfeld’s personal discretion to choose his missionary field as he saw fit, once he was free from the order’s authority to determine his residence by posting him to a particular mission.

Thus the district court did not clearly err in applying customary standards to conclude that Geilenfeld’s contacts with Iowa have been too limited to cast doubt on the sufficiency of the substantial evidence that Haiti is his domicile. As a stateless American citizen domiciled abroad, Geilenfeld did not satisfy the requirements of diversity jurisdiction.

On the assumption that Geilenfeld could not satisfy the jurisdictional state citizenship requirement, he and Hearts With Haiti request that we preserve diversity jurisdiction (and, with it, the jury award for Hearts With Haiti) by simply dismissing Geilenfeld from the suit, which the district court refused to do. See Fed. R. Civ. P. 21 (“On motion or on its own, the court may at any time, on just terms, add or drop a party.”); see also Newman-Green, 490 U.S. at 827, 109 S.Ct. 2218 (courts of appeals can dismiss parties, too). Doing so at the post-trial stage, however, would be unfair to Kendrick, as Geilen-feld’s presence in this action gave Hearts With Haiti a significant tactical advantage at trial. See Newman-Green, 490 U.S. at 838, 109 S.Ct. 2218 (advising courts of appeals to consider “whether the dismissal of a nondiverse party will prejudice any of the parties in the litigation,” including whether “the presence of the nondiverse party produced a tactical advantage for one party or another”); accord Gorfinkle v. U.S. Airways, Inc., 431 F.3d 19, 22-23 (1st Cir. 2005); Sweeney v. Westvaco Co., 926 F.2d 29, 41 (1st Cir. 1991).

Geilenfeld testified at trial about his appalling experience in a Haitian jail on accusation of sexual molestation, which was brought about in part by Kendrick’s defamatory campaign. The evidence detailed the horrific conditions of the incarceration and tended to show Geilenfeld as a person of exemplary integrity in his suffering. That testimony was admitted on the ground that it was relevant to Geilenfeld’s damages for defamation, but there was an undeniable risk that it would influence the jury’s determination of the issue common to both party’s claims, whether a man of Geilenfeld’s character would sexually abuse the youth he served. Although the jury was instructed to consider each plaintiff separately in reaching the verdicts, the tendency of the prison evidence to evoke sympathy for Geilenfeld and to portray him as unlikely to molest children supported the position of Hearts With Haiti that it had not ignored impropriety on Geilenfeld’s part. To allow the verdict for Hearts With Haiti to stand, then, would preserve an advantage that the organization has not shown would have been available to it in the absence of Geilenfeld’s efforts as a co-plaintiff presenting evidence of personal damages. See also Hearts With Haiti, 192 F.Supp.3d at 207-08 (stating that “[t]he plain fact is that this case would not have been the same case if Mr. Geilen-feld had not been a plaintiff,” and noting, in particular, Geilenfeld’s testimony regarding his “harrowing experience in Haitian jail”). Hence, we conclude that the district court did not abuse its discretion in declining to cure the jurisdictional defect by dismissing Geilenfeld from the action. See Perry v. Blum, 629 F.3d 1, 16 (1st Cir. 2010) (reviewing for abuse of discretion a district court’s decision on a motion to add or drop a party pursuant to Rule 21). We likewise decline to dismiss Geilenfeld as a plaintiff.

The district court’s judgment dismissing this action for lack of subject-matter jurisdiction, which we review in case No. 16-1839, is affirmed. We therefore do not reach the other claims of trial error raised in case No. 15-2401. That appeal is dismissed for lack of jurisdiction.


author: BARRON, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Miguel NIEVES-BORRERO, Defendant, Appellant.
    No. 15-2154
    United States Court of Appeals, First Circuit.
    May 1, 2017

      Luz M. Ríos-Rosario, San Juan, PR, for appellant.
    Jonathan L. Gottfried, Assistant United States Attorney, with whom Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States Attoméy, were on brief, for appel-lee.
    Before TORRUELLA, THOMPSON, and BARRON, Circuit Judges.
   BARRON, Circuit Judge.

This appeal requires us to review Miguel Nieves-Borrero’s challenge to the ,70-month prison sentence that he received after he pled guilty in the United States District Court for the District of Puerto Rico, pursuant to a plea agreement, to aiding and abetting a convicted felon in the possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 2. We affirm the sentence.

I.

In March of 2015, Nieves entered into a plea agreement with the government. In that agreement, the parties calculated that Nieves’ base offense level under the United States Sentencing Guidelines was 14, pursuant to U.S.S.G. § 2K2.1(a)(6). The plea agreement then calculated that the offense level should be reduced by two levels due to Nieves’ acceptance of responsibility, in accordance with U.S.S.G. § 3E1.1. The plea agreement thus set forth a total adjusted offense level of 12. The parties did not stipulate to a criminal history category (“CHC”) and made no reference to any prior convictions of Nieves’. The plea agreement noted that the recommended sentencing range under the Guidelines for a defendant with an offense level of 12 and a CHC of I is 10 to 16 months. U.S.S.G. Ch. 5, Part A. The plea agreement stipulated that “[t]he parties agree to recommend a term of imprisonment at the lower end of the applicable guideline range.”

Prior to sentencing, but after the parties entered into a plea agreement, the Probation Office issued a pre-sentence report (“PSR”). The PSR set forth a base offense level of 26 for Nieves, which was higher than the base offense level that the plea agreement had set forth. The PSR used the higher figure because it noted that Nieves had two prior convictions, neither of which had been mentioned in the plea agreement. It then relied on these two prior convictions in calculating his base offense level pursuant to U.S.S.G. § 2K2.1(a)(l)(B), which provides for a base offense level of 26 where a defendant has previously “sustainfed] at least two felony convictions of either a crime of violence or a controlled substance offense.” The terms-“crime of violence” and “controlled substance offense” are defined in the commentary to U.S.S.G. § 4B1.2.

The first of Nieves’ prior felony convictions that the PSR identified as qualifying under- U.S.S.G. § 2K2.1(a)(l)(B) was for fourth-degree aggravated battery under Article 122 of the Puerto Rico Penal Code. See P.R. ■ Laws Ann. tit. 33, § 4750. The PSR specified that the conviction was “for conduct that qualifies as a crime of violence under USSG § 4B1.2.”

The PSR identified the second of Nieves’ qualifying. convictions under U.S.S.G. § 2K2.1(a)(l)(B) as one for attempt to possess with intent to distribute controlled substances, in violation of Article 406 of the Puerto Rico Controlled Substances Act. See P.R. Laws Ann. tit. 24, § 2406. The PSR specified that the conviction was “for conduct that qualifies as [a] controlled substances offense[ ] under USSG § 4B1.2.”

The PSR also applied a two-level enhancement to the offense level under U.S.S.G. § 2K2.1(b)(l) because Nieves’ present conviction was for conduct that involved five firearms, and applied a three-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. This resulted in a total adjusted offense level of 25 for Nieves. The PSR also specified that Nieves had a CHC of III. The PSR calculated that the resulting sentencing guidelines range was 70 to 87 months’ imprisonment. The PSR did not recommend a specific sentence. Nieves did not object to the PSR.

Following the issuance of the PSR, Nieves pled guilty to aiding and abetting a convicted felon in the possession of a firearm, in violation of 18- U.S.C. §§ 922(g)(1), 924(a)(2), and 2. At the sentencing hearing, the government recommended a sentence of 15 months’ imprisonment.

The District Court noted the discrepancy between the Sentencing Guidelines range set forth in the plea agreement and the one set forth in the PSR, and specifically referred to Nieves’ prior convictions specified in the PSR as qualifying offenses under U.S.S.G. § 2K2.1(a)(l)(B). Nieves did not object. The District Court then sentenced Nieves to 70 months’ imprisonment. Nieves now challenges his sentence on appeal.

II.

Nieves first challenges the classification of his prior convictions as ones that suffice to trigger the application of U.S.S.G. § 2K2.1(a)(l)(B). However, Nieves failed to raise this objection below. The government contends that, in consequence, Nieves has waived this challenge. See United States v. Turbides-Leonardo, 468 F.3d 34, 38 (1st Cir. 2006). Nieves responds that he merely forfeited it and thus that we must review it for plain error. See United States v. Plano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). We need not address whether or not Nieves’ failure to object to the PSR constitutes a waiver, because Nieves fails to demonstrate that plain error occurred. See United States v. Delgado-López, 837 F.3d 131, 135 n.2 (1st Cir. 2016) (declining to decide whether defendant waived or forfeited objection to PSR where objection was meritless in any case). And so we proceed to our reasons for rejecting the substance of his challenge.

A.

Nieves first contends that his conviction for fourth-degree aggravated battery under Article 122 of the Puerto Rico Penal Code, see P.R. Laws Ann. tit. 33, § 4750, cannot constitute a “crime of violence” under U.S.S.G. § 2K2.1(a)(l)(B), as defined in U.S.S.G. § 4B1.2. Under what is known as § 4B1.2’s force clause, a prior conviction constitutes a “crime of violence” if the conviction is “punishable by imprisonment for a term exceeding one year” and “has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 4B1.2(a)(l) (effective Nov. 1, 2014). In addition, under what is known as the guideline’s residual clause, a prior conviction constitutes a crime of violence if the conviction “involves conduct that presents a serious potential risk of physical injury to another.” IA § 4B1.2(a)(2). Nieves contends that the aggravated battery conviction cannot constitute a “crime of violence” under either clause.

With respect to the residual clause, Nieves contends that it is unconstitutionally vague under Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which held unconstitutional a similarly worded clause in the Armed Criminal Career Act, 18 U.S.C. § 924(e)(2)(B)(ii), see M. at 2557. But although the government makes no argument to the contrary in its brief, the Supreme Court, following the briefing in this case, squarely rejected the contention that Johnson invalidates the residual clause in the Sentencing Guidelines. See Beckles v. United States, — U.S. -, 137 S.Ct. 886, 890, 197 L.Ed.2d 145 (2017). Thus, we reject Nieves’ argument that, due to Johnson, his aggravated battery conviction cannot qualify under the residual clause. Cf. United States v. Thompson, 851 F.3d 129, at *2 (1st Cir.2017) (declining, after Beck-les, to be bound by the government’s pre-Beckles concession that Johnson invalided the residual clause in the Sentencing Guidelines).

Moreover, even if we were to set aside the residual clause and focus solely on the force clause, as the parties did in their briefs to us, Nieves still cannot show plain error. To determine whether a prior conviction counts as a crime of violence under the force clause, we must apply what is called the “categorical approach,” under which “[w]e look to the elements of the prior convictions as defined by the relevant statute” and compare those elements “to the elements of the crimes described in the guideline’s definition.” United States v. Castro-Vazquez, 802 F.3d 28, 35 (1st Cir. 2015). But, as the government points out, on its face, Article 122 does not appear to apply to mere offensive touching—which we have held sweeps too broadly to constitute a “crime of violence,” see United States v. Fish, 758 F.3d 1, 9 (1st Cir. 2014)—because Article 122 applies only where the defendant has injured another in a manner that “requires medical attention [or] specialized professional outpatient treatment.” P.R. Laws Ann. tit. 33, § 4750. And Nieves makes no argument as to how Article 122—despite applying only where an injury requires medical attention or- treatment—sweeps more broadly than the definition provided in the force clause. As Nieves fails to argue how the statute applies to conduct beyond that encompassed by the force clause—much less “point to his own case or other cases in which the state courts in fact did apply the statute” in such a manner, see Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007)— Nieves has not shown plain error.

B.

Nieves next contends that the District Court erred by finding that his other prior felony conviction qualified as a predicate offense under § 2K2.1(a)(l)(B). The PSR described that conviction as being for “[ajttempt to possess with intent to distribute controlled substances,” in violation of Article 406 of the Puerto Rico Controlled Substances Act. See P.R. Laws Ann. tit. 24, § 2406. Nieves does not contest this characterization of his prior conviction. He contends only that the conviction cannot constitute a “controlled substance offense” under U.S.S.G. § 4B1.2 because it was for attempt to possess controlled substances with intent to distribute. We do not agree.

The commentary to U.S.S.G. § 4B1.2 makes clear that a “controlled substance offense” “include[s] the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.” U.S.S.G. § 4B1.2 cmt. 1 (emphasis added). And while commentary to the Guidelines “must not be confused with gospel,” such commentary “is generally authoritative” where it is not “arbitrary, unreasonable, inconsistent with the guideline’s text, or contrary to law.” United States v. Duong, 665 F.3d 364, 368 (1st Cir. 2012) (citation omitted). We have, moreover, previously treated this particular commentary to § 4B1.2 as authoritative. See United States v. Piper, 35 F.3d 611, 617 (1st Cir. 1994) (relying on the commentary to § 4B1.2 in concluding that an Article 406 conviction for conspiracy to possess with intent to distribute over 100 kilograms of marijuana constitutes a controlled substance offense). Thus, Nieves fails to show plain error here as well.

C.

Nieves finally argues that the District Court erred in classifying the two prior felony convictions as qualifying ones under U.S.S.G. § 2K2.1(a)(l)(B) because the District Court merely relied on the PSR’s classification of those offenses and thus failed to fulfill what he contends was the District Court’s obligation to apply the categorical approach to determine whether those offenses were qualifying. But Nieves did not make this argument below, and, reviewing for plain error, see United States v. Dávila-González, 595 F.3d 42, 47 (1st Cir. 2010), we find none. Even if we were to assume that the District Court had such an obligation and failed to perform it, we have already explained that Nieves provides us with no basis for concluding that his prior convictions were not qualifying predicate offenses under the categorical approach. He thus cannot show that his substantial rights were affected by any error. See United States v. Davis, 676 F.3d 3, 9-10 (1st Cir. 2012) (holding that a defendant failed to show plain error—and specifically, that his substantial rights had been affected—because he could not show that any error in determining whether his prior conviction qualified as a predicate for the career-offender enhancement was prejudicial).

III.

Separately, Nieves contends that the District Court erred by failing to give sufficient weight to mitigating factors, as required by 18 U.S.C. § 3553(a). Specifically, Nieves argues that the District Court failed to consider that Nieves “suffers from mild retardation and ... went to school to a Special Education program until the 10th grade,” was raised by a single mother “in a struggling situation,” and has sought guidance and religion. But Nieves did not raise this objection below either, and so, here, too, our review is only for plain error. See Dávila-González, 595 F.3d at 47. We, again, find none.

The District Court stated at sentencing that it was considering the § 3553(a) factors, and explicitly noted the following:

[T]he defendant is 28 years of age, has one child, has a 10th grade education, he abandoned school in the 11th grade. He was unemployed at the time of arrest, prior to that he was occasionally] employed doing odd jobs. The defendant is in good physical health. However, he submitted to mental health treatment as a child. He had learning disabilities and hyperactivity. He also received mental health treatment for anxiety as an adult under State custody.

The District Court did not refer individually to every mitigating factor Nieves now identifies. But the District Court did take the § 3553(a) factors into consideration. And, “[t]hough we' require consideration of the § 3553(a) factors, we do not require ... that each factor be individually mentioned.” United States v. Lozada-Aponte, 689 F.3d 791, 793 (1st Cir. 2012). Accordingly, no plain error occurred.

IV.

The sentence is affirmed.

      . On plain error review, Nieves must show (1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant’s substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings. United States v. Serrano-Mercado, 784 F.3d 838, 845 (1st Cir. 2015).


author: THOMPSON, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Diego FERNÁNDEZ-SANTOS, Defendant, Appellant.
    Nos. 15-2456 & 15-2462
    United States Court of Appeals, First Circuit.
    May 1, 2017

      Jose R. Gaztambide-Aneses for appellant.
    Mainon Schwartz, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá Almonte, Assistant United States Attorney, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, Senior Appellate Counsel, were on brief, for appellee.
    Before HOWARD, Chief Judge, DYK  and THOMPSON, Circuit Judges.

       Of the Federal Circuit, sitting by designation.

   THOMPSON, Circuit Judge.

Defendant-appellant Diego Fernández-Santos (“Fernández”) pled guilty to three charges stemming from his possession of guns and drugs while on supervised' release. He later moved to change his plea to not guilty, but the district court denied the motion and sentenced him to seventy-six months’ imprisonment on those three charges plus twenty-four months, to be served consecutively, for violating the terms of his supervised release. He now appeals the court’s denial of his motion to change his plea and the procedural reasonableness of his 100-month sentence. Finding no error on either score, we affirm.

FACTUAL BACKGROUND'AND PROCEDURAL HISTORY

Back in 2011, Fernández was convicted of possessing cocaine with intent to distribute. He was sentenced to time served and placed on supervised release. Fernández failed to comply with the terms of that supervised release, so law enforcement officers obtained a warrant for his arrest. Early in the morning of February 13, 2014, the officers approached his home to make the arrest, knocked on the door, and identified themselves. They got no response but heard movement inside, so they attempted to enter by force. But this took a little time, and as they were trying to get through the front door, someone rap out the back door carrying a red bag. Officers gave chase. The runner turned out to be Fernández’s twelve-year-old nephew, and the red bag contained drug paraphernalia, cocaine residue, zip-top bags with a fruit insignia (commonly used by drug dealers to brand their product), 9mm ammunition, and two firearm magazines.

Meanwhile, other officers got in the house and quickly apprehended a wet-handed Fernández, who was darting out of the bathroom and also trying to flee out the back door. Officers searched the house and found more drug paraphernalia, including cutting agents (used to increase the quantity of saleable drugs), torn “eight-ball” wrappings on top of the washing machine next to the bathroom (later found to contain trace amounts of cocaine), digital scales, and more fruit-branded zip-top bags. When asked if there was anything in the house that might harm an officer, Fernández said there was a gun hidden behind the washing machine, so the officers immediately recovered it.

On March 27, 2014, a grand jury indicted Fernández on three charges: (1) possession with intent to distribute a detectable amount of cocaine, in violation of 21 U.S.C. § 841 (“Count One”); (2) possession of a firearm in furtherance of the drug-trafficking crimes charged in Count One, in violation of 18 U.S.C. § 924(c)(1)(A) (“Count Two”); and (3) being a convicted felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (“Count Three”).

Fernández’s trial began on June 9, 2014. A jury got selected, the government and Fernández’s counsel made their opening statements, the pourt gave preliminary jury instructions about the three charges and their elements, and the government presented some of its evidence. The next day Fernández put a halt to the trial and changed his plea to guilty to all three charges.

At his change-of-plea colloquy, Fernán-dez stated that he had received a copy of the indictment and had discussed it with his counsel. Fernández further stated that he was satisfied with his counsel’s representation, understood the charges against him, committed the crimes charged, and was pleading guilty knowingly, voluntarily, and intelligently. The government recounted some of the evidence against Fernán-dez, who agreed with the government’s version of the facts. The district court accepted his guilty plea and set a date for sentencing.

Shortly after pleading guilty, Fernández was transferred from Puerto Rico to a prison in Georgia. Fernández claims he lost touch with his lawyer after the transfer. On September 10, 2014, three months after Fernández pled guilty to the charges, his attorney filed a motion to withdraw from the case. The district court opted to grant the motion in part—it appointed a new attorney to work with the original one. Then, on November 3, 2014, Fernán-dez’s original attorney sought the same relief and made a second motion to withdraw. This time, the district court granted it in full. That left Fernández’s new attorney as his sole defense counsel.

The ins and outs of the rest of the proceedings are important to understanding Fernández’s legal arguments on appeal, so we outline them now and save the details for later. First, working with his new attorney, on January 11, 2015, seven months after he pled guilty, Fernández moved to withdraw his guilty plea. After hearing from both sides, the court denied this motion, concluding that: Fernández pled guilty voluntarily, knowingly, and intelligently; Fernández’s claim of actual innocence was meager; and Fernández’s motion was not timely. Following this denial, on November 4, 2015, the district court sentenced Fernández to sixteen months to be served concurrently on Counts One and Three, and sixty months to be served consecutively for Count Two—a total of seventy-six months for the three charges. But that was not all. Remember that officers caught Fernández when they came to arrest him for violating the conditions of his supervised release imposed for his 2011 conviction. One of those conditions: “the defendant shall not commit another ... crime.” So, after Fernández pled guilty to the other crimes, the court found Fernán-dez had violated the conditions of his supervised release. For the violation, the court sentenced Fernández to an additional twenty-four months, to be served consecutively to his seventy-six month sentence, bringing Fernández’s total sentence to 100 months.

Fernández appeals, challenging the district court’s denial of 'his motion to withdraw his guilty plea and the consecutive nature of his violation sentence.

DISCUSSION

A. Motion to. Withdraw the Guilty Plea

Fernández first argues that the district court erred by denying Fernán-dez’s motion to withdraw his guilty plea. Of course, the government says the district court did no such thing. That “a defendant has no absolute right to withdraw a guilty plea” is a well-established maxim. United States v. Caramadre, 807 F.3d 359, 366 (1st Cir. 2015), cert. denied, — U.S. -, 136 S.Ct. 2455, 195 L.Ed.2d 266 (2016). A person wishing to do so after the court has accepted a plea but before sentencing bears the burden of showing a “fair and just reason for requesting the withdrawal.” Id. (quoting Fed. R. Crim. P. 11(d)(2)(B)). To determine whether a defendant has shown a “fair and just reason,” courts consider a number of factors under the totality of the circumstances, including

• “whether the original guilty plea was knowing, intelligent, and voluntary,”
• “the timing of the request,” and
• “whether the defendant is now eolor-ably asserting legal innocence.”

Id. (citation omitted). If these factors weigh in favor of allowing the defendant to withdraw his guilty plea, courts also consider any prejudice the government would face as a result. Id. We review a district court’s ruling on a motion to withdraw a guilty plea for an abuse of discretion. United States v. Merritt, 755 F.3d 6, 9 (1st Cir. 2014). Assessing each of Fernández’s arguments on each factor in turn, we conclude that the district court did not abuse its discretion in denying Fernández’s motion to withdraw his plea.

1. Knowing, Intelligent, and Voluntary Plea

On to Fernández’s first argument, that his guilty plea was not made knowingly, intelligently, and voluntarily. He gives us two reasons why, claiming: (1) he did not understand the charges against him, and (2) his original lawyer gave him ineffective assistance. As we explain, neither argument helps him here.

i. Understanding of the Charges

Fernández claims he did not understand the charges against him because the court explained the charges in “very general terms” and inadequately explained the mens rea the government would have to prove at trial. So, his plea was not knowing, intelligent, and voluntary. The government says the explanation of the charges was adequate. We agree.

Rule 11 requires the district court to “inform the defendant of, and determine that the defendant understands ... the nature of each charge to which the defendant is pleading,” Fed. R. Crim. P. 11(b)(1)(G), including “the elements of the charges that the prosecution would have to prove at trial,” United States v. Gandia-Maysonet, 227 F.3d 1, 3 (1st Cir. 2000). However, Rule 11 “does not require the court to explain the technical intricacies of the charges in the indictment.” United States v. Ramos-Mejia, 721 F.3d 12, 15 (1st Cir. 2013) (internal citations and quotation marks omitted). Ordinarily, “it is sufficient in a plea colloquy for a district court to ascertain that a defendant is aware of the nature of the charge[s] against him by reading the charge[s] in the indictment to the defendant and obtaining his competent acknowledgment that he understands the charge[s].” Id. (internal citations and quotation marks omitted).

Here, the district court certainly did at least this much. At the change-of-plea hearing, the district court confirmed that Fernández was competent to plead guilty (a finding he does not challenge on appeal) and wanted to plead guilty to the charges. The district court went on to describe the charges against Fernández, including a statement of the mens rea the government would have to prove on each charge. Fernández affirmed that he understood each charge. The district court also confirmed that Fernández had received the indictment and discussed it and his decision to plead guilty with his attorney. The government summarized the proof it would have presented on each charge if the trial had continued; Fernández said he agreed with the government’s version of what he heard and “that [is] what [he] did.” And as the government points out, Fernández was also present during jury selection and the first two days of his trial, where he heard the preliminary jury instructions explaining the charges against him, including the mens rea the government would have to prove in order to convict. The charges against Fernández were uncomplicated, and the court repeatedly, and accurately, explained them before accepting Fernández’s plea. Fer-nández gives us no credible or compelling reason to believe he did not understand the charges against him.

ii. Ineffective Assistance of Counsel

Alternately, Fernández attempts to convince us that he did not knowingly, intelligently, and voluntarily plead guilty via his claim that his lawyer “failed to represent him adequately and misguided him.” Pertinently, he alleges that his lawyer (1) pressured him into pleading guilty after convincing two defense witnesses not to testify, (2) may have failed to ask the government to produce test results showing that one of the seized pieces of evidence tested negative for cocaine, and (3) had a conflict of interest (though he gives no details about that alleged conflict). As a result, Fernández claims he was “wrongly induced” by his defense attorney into pleading guilty. The government argues, and so we .find, that Fernández’s claims cannot be pursued here on appeal.

In the plea-withdrawal context, a defendant arguing that he received ineffective assistance must show that his attorney’s performance fell below an objective level of reasonableness and that, but for this deficient performance, there is a reasonable probability he would not have pled guilty. Caramadre, 807 F.3d at 371. If an appellant’s claim “is confined to matters found in the record and can be determined without the need for additional fact finding,” we may consider it on direct appeal. United States v. Austin, 948 F.2d 783, 785 (1st Cir. 1991). Otherwise, “[fjairness to the parties and judicial economy both warrant that, absent extraordinary circumstances, an appellate court will not consider an ineffective assistance claim where no endeavor was first made to determine the claim at the district level.” United States v. Isom, 85 F.3d 831, 837 (1st Cir. 1996) (quoting Austin, 948 F.2d at 785).

The district court did not “determine the claim” below, ¾ suggesting instead that the claim should be addressed in a collateral proceeding under 28 U.S.C. § 2255. And here on appeal, Fernández makes only skeletal arguments and does not point to evidence in the record that would allow us to fairly consider his claim. Indeed, the only evidence he cites to support his allegations of witness-pressuring is a paragraph from his affidavit cursorily explaining that his original attorney “pressured [him to plead guilty] by forcing [his] mother and the owner of the weapon to desist from testifying.” Such brevity does not help him much.

Moreover, as far as we can tell, Fernán-dez did not raise either of his other allegations to the district court. Nor does he point to anything in the record to show whether his original attorney requested the lab results, or that his attorney had a conflict of interest. That means we cannot assess those claims now, either. Therefore, we dismiss Fernández’s ineffective-assistance-of-counsel claim without prejudice to his right to pursue it later under 28 U.S.C. § 2255. See United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993).

2. Timing

Seven months elapsed between Fernández’s guilty plea and his motion to withdraw it. Fernández claims the delay was not his fault—he lost contact with his first lawyer when he was moved from a prison in Puerto Rico to one in Georgia— so the district court abused its discretion by holding this delay against him in the plea-withdrawal calculus. The government points out that the transfer to Georgia only accounts for part of the delay, so Fernández’s motion to withdraw his guilty plea was still untimely. We think the government has the better argument.

The timing of a motion to withdraw a guilty plea is important, as we have said before, because it is “highly probative of motive.” United States v. Doyle, 981 F.2d 591, 595 (1st Cir. 1992). “While an immediate change of heart may well lend considerable force to a plea withdrawal request, a long interval between the plea and the request often weakens- any claim that the plea was entered in confusion or under false pretenses.” Id. We have previously found a delay of only thirteen days weakened a defendant’s motion to withdraw a guilty plea. United States v. Ramos, 810 F.2d 308, 313 (1st Cir. 1987).

In considering Fernández’s motion to .withdraw, the district court considered Fernández’s argument that he lost touch with his lawyer, but concluded this factor weighed against him nonetheless: after he was appointed substitute counsel, Fernán-dez still waited over two months to file his motion to withdraw. On appeal, Fernández gives no explanation for the additional delay. The district court’s conclusion on this factor was not an abuse of discretion. See Isom, 85 F.3d at 839 (two-month delay made withdraw untimely).

3. Legal Innocence

Finally, Fernández says he is legally innocent of the charges and puts forward a couple of arguments to support his claim. First, because police found only trace amounts of cocaine in his home (.025 grams), Fernández contends that this small quantity is insufficient to show he possessed cocaine with an intent to distribute. Second, because he is innocent of the distribution charge, it follows that he is innocent of possessing a gun in furtherance of that distribution charge—and to boot, he didn’t even own the gun.

A serious claim of innocence supports the conclusion that it would be fair and just to allow a defendant to withdraw a guilty plea. A “mere protestation of legal innocence cannot in and of itself be issue-determinative, for ‘[t]here are few if any criminal cases where the defendant cannot devise some theory or story which, if believed by a jury, would result in his acquittal.’ ’’ United States v. Kobrosky, 711 F.2d 449, 455 (1st Cir. 1983) (citation omitted). “Merely voicing a claim of innocence has no weight in the plea-withdrawal calculus; to be given weight, the claim must be credible.” United States v. Gates, 709 F.3d 58, 69 (1st Cir. 2013). A defendant must put forward “factual contentions” that create a “ ‘legally cognizable defense’ to the charges, [otherwise] ‘he has not effectively denied his culpability,’” and the district court may deny the motion to withdraw. Ramos, 810 F.2d at 312 (citation omitted). The government argues the district court was right to find that Femández’s innocence claims do not amount to a legally cognizable defense to the charges, so they did not amount to a fair and just reason to withdraw his guilty plea, either. We think so, too.

i. Possession with Intent to Distribute

First, contrary to Fernández’s protestations, the fact that only trace amounts of cocaine were found at Fernán-dez’s residence does not show that he is legally innocent of the possession-with-intent-to-distribute charge. We have explained that the amount of drugs is only one factor relevant to determining whether a defendant had an intent to distribute. United States v. Cortés-Cabán, 691 F.3d 1, 35-36 (1st Cir. 2012). Other relevant factors include “the purity of the drugs at issue, [] the quantity of cash on a defendant, [] the manner in which the drugs were packaged, [] the presence of drug paraphernalia, [ ] the lack of any evidence showing a defendant used or consumed the type of drug seized, [and] the presence of firearms.” IA at 36. Here, the district court found that Fernández had an intent to distribute drugs because of the presence of drug paraphernalia, including eight-ball wrappings, small zip-top bags bearing drug trafficking insignia, cutting agents, and digital scales; and the presence of a gun and ammunition. The district court also noted that a jury could infer from the fact that Fernández was caught “wet-handed” next to the torn eight-ball wrappers that he flushed a greater quantity of drugs before the police managed to get in the house.

Fernández’s arguments on appeal focus exclusively on the amount of drugs found in his home, but he has no rejoinder to the district court’s overall assessment of the distribution charge. Not only was Fernán-dez’s claim of innocence “not credible,” but it also “contradicted the change-of-plea colloquy in which he acknowledged that he committed the charged offenses.” Gates, 709 F.3d at 69. The court did not abuse its discretion in rejecting Fernández’s quantity-based defense.

ii. The Gun Possession Charge

That leaves Fernández’s second innocence argument: he is legally innocent of possessing a firearm in furtherance of a drug trafficking crime, he says, because he did not own the gun. But ownership is not an element of the charge of possessing a gun in furtherance of a drug trafficking crime. 18 U.S.C. § 924(c)(1); United States v. Negrón-Narváez, 403 F.3d 33, 40 (1st Cir. 2005); see United States v. Robinson, 473 F.3d 387, 399 (1st Cir. 2007) (possession requires that defendant “knowingly have the ability and intent to exercise dominion and control of the firearm or area where it is located”). So, this argument doesn’t create a legally cognizable defense, either.

4. Conclusion

In the end, none of the relevant plea-withdrawal factors weigh in Fernández’s favor. The Rule 11 colloquy provides strong evidence that Fernández pled guilty knowingly, intelligently, and voluntarily. United States v. Chambers, 710 F.3d 23, 29 (1st Cir. 2013). Fernández’s gripes about the explanation of the charges against him and his allegedly-ineffective counsel give us no reason to think otherwise. He moved to withdraw his plea two months after getting a new lawyer (and seven months after pleading guilty), so his timing weighs against him, too. Finally, his drug-quantity and gun-ownership arguments do not amount to a colorable claim of innocence, so these arguments do nothing to tilt the scales. Because none of these factors weigh in favor of granting Fernán-dez’s motion to withdraw his guilty plea, we do not have to address any prejudice the government might face if the motion were granted. See Caramadre, 807 F.3d at 366. The district court did not abuse its discretion in finding Fernández presented no fair and just reason to withdraw his plea, or in denying his motion.

B. Sentencing

We turn now to Fernández’s second claim on appeal, that the district court erred by imposing a consecutive sentence for violating his term of supervised release. Remember, at the time Fernández committed the three crimes we discussed above, he was on supervised release for a previous drug crime. After he pled guilty, Fernández, like we said, was sentenced to sixteen months, to run concurrently, for Counts One and Three (possessing cocaine with intent to distribute, and being a felon in possession of a firearm). He also got five years, to run consecutively to the sixteen-month term, for Count Two (possessing a firearm in furtherance of a drug trafficking offense under § 924(c)). The total sentence for the three Counts was seventy-six months. A half an hour later, he was sentenced a second time for violating the terms of his supervised release. The district court calculated a Guidelines range of twelve to eighteen months for the revocation sentence. But, the court gave Fernán-dez the statutory-maximum sentence—two years—to be served consecutively to his seventy-six-month term. It’s the consecu- - tive nature of the revocation sentence he takes issue with here.

Fernández argues that his sentence is procedurally unreasonable and ■ should be vacated. The district court had the discretion to run the sentences concurrently, he claims, but it erred because it believed it was required to run his twenty-four-month revocation sentence consecutively. And the court’s error was prejudicial because his sentence “became [twenty-four] months longer” as a result of this mistaken belief. The government argues that the district court did not err because it knew it had the discretion to run the sentences concurrently, it just chose not to. Even if the district court erred, the government stresses that Fernández cannot show that his sentence was any longer as a result.

Fernández did not raise these arguments below, so we review them for plain error. Favorably to Fernández, even if we assume—without deciding—that the district court committed an error that was clear or obvious in imposing a consecutive revocation sentence, Fernandez cannot succeed. See United States v. Duarte, 246 F.3d 56, 61 (1st Cir. 2001) (bypassing first two prongs of plain-error review under similar circumstances). That is so because we find that Fernández has not shown that the error—if any—had any impact on his substantial rights. Resultantly, he cannot pass the plain-error test.

On the third prong of plain-error review, Fernández bears the burden of showing a “reasonable probability that the district court would impose a different” and “more favorable” sentence but for the error. United States v. Serrano-Beauvaix, 400 F.3d 50, 55 (1st Cir. 2005). Fernández posits that his overall sentence was twenty-four months longer because the revocation was imposed consecutively. But “[i]t is not enough for a defendant merely to argue that his sentence might have been different” if not for the error. United States v. Yeje-Cabrera, 430 F.3d 1, 19 (1st Cir. 2005) (quoting United States v. Sanchez-Berrios, 424 F.3d 65, 80 (1st Cir. 2005)). He must point to something in the record that indicates the district court might have acted differently if it did not harbor its mistaken belief.

The record gives us no reason to believe that things would have been different for Fernández but for the alleged error. Indeed, the district court recognized that the Guidelines-recommended revocation sentence for Fernández is twelve to eighteen months. (And Fernández concedes that the court’s calculation was correct.) Nevertheless, the judge chose to sentence Fernández to the statutory maximum of two years. See 18 U.S.C. § 3583(e)(3). The judge’s statement of reasons for giving Fernández the statutory-maximum sentence, over his lawyer’s request for a sentence at the lowest end of the range, shows he thought the maximum possible punishment was merited by Fer-nández’s crimes and criminal history. The district court explained that Fernández endangered the minors in his home and proved himself “unable to comply with the law,” so a statutory sentence was necessary to reflect “the nature and seriousness of the circumstances of the violation incurred by Mr. Fernández while on supervised release” and to “protect! ] the community from [Fernández’s] further crimes.” Even if the district court mistakenly believed the sentences had to run consecutively, its decision to impose the maximum sentence and its emphasis on the “seriousness” of the offense do nothing to show that the court would have acted differently but for its mistaken belief.

Fernández has not shown that the district court’s error, if any occurred, “affected [his] substantial rights.” Marchena-Silvestre, 802 F.3d at 200. So, he has not shown plain error. We affirm his sentence.

CONCLUSION

For all the reasons discussed above, we affirm the district court’s ruling and Fer-nández’s sentence, without prejudice to Fernández’s right to raise his ineffective-assistance-of-counsel claim in a collateral proceeding.

      . Fernández appeals after two days of trial and a guilty plea, so we take the facts from the change-of-plea colloquy, the unchallenged portions of the presentence investigation report, and transcripts of the trial and sentencing hearing. See United States v. Díaz-Bermúdez, 778 F.3d 309, 310 (1st Cir. 2015).

      . Fernández contends that abuse-of-discretion review applies to all of his withdrawal-related arguments on appeal. The government suggests that Fernández may have waived his argument that he did not understand the charges against him. Because Fernández’s claim is easy enough to dispose of on the merits, we proceed to do so. See United States v. Kinsella, 622 F.3d 75, 86 (1st Cir. 2010) (taking an analogous approach).

      . Specifically, the district court found that "assistance of competent counsel” does not factor into the plea-withdrawal analysis in this circuit, so his ineffective-assistance-of-counsel claims "would be more appropriately addressed pursuant to 28 U.S.C. § 2255.” United States v. Fernandez-Santos, 136 F.Supp.3d 160, 163 n.1 (D.P.R. 2015). To the contrary, this court has found that ineffective assistance of counsel may be a "fair and just reason” to withdraw a guilty plea, see Isom, 85 F.3d at 834, 837, or may render a plea unknowing or involuntary, see Austin, 948 F.2d at 786. But Fernández does not challenge this finding, so we do not address it any further.

      . Because Fernández claims his original attorney kept (presumably exculpatory) witnesses from testifying at trial, we take this to mean he thought his lawyer's trial performance was “so deficient that it compelled] [him] to plead under duress.” Caramadre, 807 F.3d at 371. But from Fernández’s bare-bones statement, we can’t assess whether or not that is true because we don’t know what the allegedly-pressured witnesses would have said on the stand, or how his lawyer's alleged meddling influenced his decision to plead guilty. (As we explain later, testimony that Fernández did not own the gun would not help him one whit.) Nor does the statement give us any basis to assess the usual touchstone in post-plea ineffective-assistance inquiries: his lawyer’s "overall performance in counseling [him] about whether to plead guilty.” Id.

      . Fernández also states that the district court improperly considered his motion to withdraw his plea because the court "disregarded and failed to investigate” his "colorable” conflict-of-interest claim. But, he does not show us where he raised the issue below, and we do not see how the court could have "disregarded” something never brought to its attention. This claim is a nonstarter. See Isom, 85 F.3d at 838 ("[T]he failure to ask the district court to convene an evidentiary hearing ordinarily spells defeat for a contention that one should have been held.” (quoting United States v. Tardiff, 969 F.2d 1283, 1286 (1st Cir. 1992))).

      . Fernández also points out that one of the pieces of evidence seized from his home tested negative for cocaine. However, when this point was raised before the district court, the government explained that the item at issue contained a cutting agent (so it was no surprise that it tested negative) and other items seized tested positive for the presence of cocaine. Fernández does not respond to this point or otherwise explain why the absence of cocaine from one piece of evidence shows that he is legally innocent, so we do not address this point any further.

      . As you may recall from our analysis of his ineffective-assistance-of-counsel argument, Fernández claimed that if not for his original lawyer’s meddling, the registered owner of the gun would have testified for Fernández. He does not, however, identify the owner or give us any hints about what the owner would have said (other than that he or she owned the gun in question). The district court dealt with Fernández's ownership argument at trial. When Fernández attempted to cross-examine a government witness about the owner of the gun, the court found that only "actual possession or constructive possession” were relevant because the charge "has nothing to do with ownership.” Fernández has barely pursued the issue since, so it may be waived: he mentioned the allegedly exonerating (yet anonymous) witness in passing in his motion to withdraw his plea, but not at the motion hearing or in his court-ordered supplemental brief on his innocence claim. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.”). But, the government does not press the point, so once again we proceed to dispose of the issue on the merits.

      . That means Fernández must show “(1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant's substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings.” United States v. Marchena-Silvestre, 802 F.3d 196, 200 (1st Cir. 2015) (quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).

      . Fernández’s sentencing arguments are murky. We think his point is that the court misunderstood its discretion to run his revocation sentence concurrently with his sentence for "counts one and three of the new indictment." If so, Fernández is wrong. The court’s last word on the subject: “the revocation must be consecutive to the 924(c) count. It need not be consecutive to the drug count, but it must be consecutive to the 924(c) count.” (The "drug count” is the sixteen-month sentence on Count One, which ran concurrently with Count Three.) The court didn't think the revocation had to run consecutively to Counts One and Three, so it didn’t misunderstand its discretion.
      But as we said, his arguments are murky. Earlier in his brief he claimed the district court had the discretion to run his revocation concurrently with "the new charges,” which include the § 924(c) sentence from Count Two. (Understood this way, his prejudice argument makes more sense: his sentence could only be "[twenty-four] months longer” because of the error if the error was thinking the twenty-four-month revocation had to be consecutive to all three Counts.)
      The district court thought the revocation had to be consecutive to Fernández’s § 924(c) sentence, but we aren’t so sure that’s an error. District courts normally have the discretion to run a revocation sentence concurrently. United States v. Carrera-González, 280 Fed.Appx. 11, 13 (1st Cir. 2008). But, 18 U.S.C. § 924(c)(l)(D)(ii) provides that “no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person.” See also United States v. Gonzales, 520 U.S. 1, 9-11, 117 S.Ct. 1032, 137 L.Ed.2d 132 (1997) (holding that a later-sentencing federal court must run a § 924(c) sentence consecutively to any other undischarged state or federal term). Fernández does not develop this argument at all. So, we don’t decide the issue.


author: HOWARD, Chief Judge.

text:
    UNITED STATES of America, Appellee, v. Raymond FUENTES-ECHEVARRIA, Defendant, Appellant.
    No. 16-1176
    United States Court of Appeals, First Circuit.
    May 1, 2017

      Derege B. Demissie, Cambridge, MA, and Demissie & Church on brief for appellant.
    Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá Al-monte, Assistant United States Attorney, Chief, Appellate Division, and John A. Mathews II, Assistant United States Attorney, on brief for appellee.
    Before HOWARD, Chief Judge, LIPEZ and THOMPSON, Circuit Judges.
   HOWARD, Chief Judge.

Raymond Fuentes-Echevarria challenges the procedural reasonableness of a forty-eight-month sentence imposed following his guilty plea for illegal possession of a machine gun. He also brings an ineffective assistance of counsel claim. After careful consideration, we affirm his sentence and dismiss his ineffective assistance claim without prejudice.

I.

On September 15, 2014, police officers stopped Fuentes, who was driving his Honda Accord in reverse in the middle of a street, near a known drug trafficking point in San Juan, Puerto Rico. While one officer issued a ticket to Fuentes, a canine trained to detect narcotics, accompanied by another officer, marked two separate locations on Fuentes’s vehicle. Fuentes fled the scene and was not arrested.

Officers subsequently sealed Fuentes’s vehicle, transported it to police headquarters, and obtained a search warrant. A subsequent search of the vehicle revealed a secret compartment near the center of the dashboard. From the compartment, officers seized a .40 Glock pistol modified to fire automatically, several gun magazines, and 108 rounds of ammunition. On September 18, 2014, a grand jury returned a sealed indictment charging Fuentes with illegal possession of a machine gun, in violation of 18 U.S.C. § 922(o) and § 924(a)(2).

Fuentes was arrested about a year later, in July 2015. He initially pled not guilty, and a trial was scheduled. But he ultimately moved to change his plea mere days before the trial was set to begin, and entered a straight plea—that is, without a plea agreement—to the sole charge in the indictment.

Fuentes’s Presentence Report (“PSR”), to which he did not object, indicated that his criminal history category was I, and that his Base Offense Level (“BOL”) was eighteen, pursuant to U.S.S.G. § 2K2.1(a)(5). However, because Fuentes accepted responsibility, his total offense level (“TOL”) was reduced to sixteen, see U.S.S.G. § 3.El.l(a), thus setting the applicable Guidelines Sentencing Range (“GSR”) at twenty-one to twenty-seven months. At the sentencing hearing, Fuentes recommended a bottom-of-the-GSR sentence of twenty-one months, while the government asked for sixty. After reviewing the facts of this case and expressing a heightened need for community deterrence, the judge sentenced Fuentes to forty-eight months’ imprisonment, followed by thirty-six months of supervised release.

On appeal, Fuentes challenges the reasonableness of his sentence on two grounds. He contends that the district court erred by failing to apply an additional one-level reduction to his TOL for acceptance of responsibility under § 3El.l(b). He also argues that the district court’s reliance on certain community factors did not justify the upward variance. Finally, Fuentes brings an ineffective assistance of counsel claim. We address each in turn.

II.

A. Sentencing Challenges

We review criminal sentences “under a deferential abuse-of-discretion standard.” United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008) (quoting Gall v. United States, 552 U.S. 38, 56, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). In applying this standard, we examine a sentence’s procedural and substantive reasonableness. United States v. Dávila-González, 595 F.3d 42, 47 (1st Cir. 2010). Here, Fuentes assigns only procedural errors to his sentence. See Martin, 520 F.3d at 92 (noting that “failing to calculate (or improperly calculating) the Guidelines range” is procedural); United States v. Narváez-Soto, 773 F.3d 282, 286-87 (1st Cir. 2014) (treating a challenge about purportedly impermissible sentencing considerations as procedural). Unpreserved procedural challenges engender plain error review. Dávila-González, 595 F.3d at 47. In these circumstances, we will reverse the district court only upon a showing “(1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant’s substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings.” United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)

First, Fuentes argues that while the district court appropriately reduced his TOL by two levels under U.S.S.G. § 3El.l(a) for acceptance of responsibility, it erred by not reducing the TOL by an additional level under § 3El.l(b). Section 3El.l(b) provides, in relevant part: “If the defendant qualifies for a decrease under subsection (a), the [BOL] determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government ... decrease the offense level by 1 additional level.” U.S.S'.G. § 3El.l(b) (emphasis added). The government did not make such a motion, and Fuentes did not request it either in opposition to the PSR or during sentencing.

We need not decide—as the government suggests—whether Fuentes waived or merely forfeited his challenge by failing to raise it below, as his claim falters on plain error review. See, e.g., United States v. Acevedo-Sueros, 826 F.3d 21, 24 (1st Cir. 2016). The district court did not commit an error, plain or otherwise, in not granting the additional reduction sua sponte. As we have previously held in Acevedo-Sueros, 826 F.3d at 24, not only does the plain text of § 3El.l(b) provide that the government must first make a motion for the reduction, but the relevant commentary for this section also emphasizes the government’s discretion to refuse to do so:

Because the Government is in the best position to determine whether the defendant has assisted authorities in a manner that avoids preparing for trial, an adjustment under subsection (b) may only be granted upon a formal motion by the Government at the time of sentencing.

Acevedo-Sueros, 826 F.3d at 24 (quoting § 3E.1.1(b) cmt. n.6). Accordingly, the district court did not err in not awarding the additional reduction.

Discerning no error on this front, we proceed to Fuentes’s next challenge, which he preserved below. Fuentes maintains that the court’s decision to impose a forty-eight-month variant sentence “lacked factual support,” because it was heavily premised on the court’s concern with “general violence” in the community. For instance, he points to the sentencing court’s statement that it was “sick and tired of violent crimes and guns.” He posits that the court went “too far” in “speculat[ing] about the lives of violent criminals,” at the expense of failing to consider facts specific to his case.

When a court imposes a variant sentence, “its reasons for doing so ‘should typically be rooted either in the nature and circumstances of the offense or the characteristics of the offender.’ ” United States v. Flores-Machicote, 706 F.3d 16, 21 (1st Cir. 2013) (quoting Martin, 520 F.3d at 91). While Fuentes is correct that the court had an eye towards community deterrence in fashioning his sentence, we have “repeatedly” explained that “[deterrence is widely recognized as an important factor in the sentencing calculus.” United States v. Diaz-Arroyo, 797 F.3d 125, 129 (1st Cir. 2015) (quoting Flores-Machicote, 706 F.3d at 23) (alteration in original);- see also 18 U.S.C. § 3553(a)(2)(B). Indeed, community context can “inform[] and contextualize! ] the relevant need for deterrence.” Flores-Machicote, 706 F.3d at 23. The district court did not abuse its discretion by allowing its assessment that there was an “arsenal [of weapons] out there in the streets” to bear on its conclusion that a strong deterrent was warranted in this case.

Although “[i]t is possible for a sentencing judge to focus too much on the community and too little on the individual,” id. at 24, that did not happen here. The sentencing court identified several case-specific factors, beyond the need for general deterrence, to support its view that Fuentes’s offense was “out of line with a heartland case” for which the calculated GSR would have been appropriate. Among these were the fact that Fuentes’s modified firearm was housed in a secret compartment, and that it was found with extended magazines and 108 rounds of ammunition, some of which was suitable for an AK-47 rifle. Moreover, the court found it significant that Fuentes’s traffic stop occurred near a known drug trafficking area, and that he fled the scene. The sentencing judge’s discussion of these case-specific facts blunts Fuentes’s claim that community factors improperly shaded his variant sentence.

B. Ineffective Assistance of Counsel Claim

Finally, we decline to address Fuentes’s claims that his counsel was ineffective for failing to ask for the additional one-level reduction in Fuentes’s TOL and for apparently “conce[ding] that [Fuentes] had no other purpose than to use the weapon to commit crimes.” Unless counsel’s prejudicially deficient performance is “manifestly apparent from the record,” we do not entertain ineffective assistance claims on direct appeal. United States v. Rivera-Gonzalez, 626 F.3d 639, 644 (1st Cir. 2010) (quoting United States v. Wyatt, 561 F.3d 49, 52 (1st Cir. 2009)). Such an “extraordinary circumstance[ ]” is not apparent in the record before us. United States v. Hicks, 531 F.3d 49, 55 (1st Cir. 2008) (quoting United States v. Martins, 413 F.3d 139, 155 (1st Cir. 2005)). Thus, we dismiss this claim without prejudice, leaving Fuentes free to raise it in a collateral proceeding under 28 U.S.C. § 2255.

III.

For the foregoing reasons, we affirm Fuentes’s sentence and dismiss his ineffective-assistance claim without prejudice.

      . We draw these facts-—to which Fuentes did not object—from the change-of-plea colloquy and transcript of the sentencing hearing.

      . Although there are some exceptions to the government-motion requirement, see United States v. Beatty, 538 F.3d 8, 14-15 (1st Cir. 2008), Fuentes does not assert that they apply here, nor does the record suggest that they would.

      . Fuentes also makes a cursory reference to the court’s "incorrect finding” about his "drug abuse,” which was considered in connection with his supervised release conditions. However, he only develops a challenge to his incarcerative sentence on appeal, so any argument to this effect is waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

      . Fuentes’s attempt to liken his case to United States v. Ofray-Campos, 534 F.3d 1, 43 (1st Cir. 2008), falls short. In that case, we vacated an above-Guidelines sentence that exceeded the top of the recommended GSR by twenty-four years and was the statutory maximum for that offense. Not only was the variance here vastly more limited—Fuentes's sentence was twenty-one months above the GSR maximum of twenty-seven months and well under the statutory maximum of ten years, see 18 U.S.C. § 924(a)(2)—but the district court’s explanation here was much more particularized and persuasive than was the explanation in Ofray-Campos. 534 F.3d at 43-44.

      .To the extent that Fuentes advances a substantive reasonableness challenge, it also fails. The district court articulated a "plausible rationale” and "defensible result.” Martin, 520 F.3d at 98; see also, e.g., Flores-Machicote, 706 F.3d at 22, 25 (affirming a five-year sentence that exceeded the GSR maximum of forty-one months when the offense conduct involved a "high-caliber weapon with a large-capacity magazine”); Diaz-Arroyo, 797 F.3d at 130 (upholding a forty-eight-month variant sentence as reasonable in light of “the defendant’s checkered criminal history and the community’s burgeoning problems with violent crime linked to the illegal possession and use of firearms”).