United States Court of Appeals For the First Circuit

No. 21-1842

UNITED STATES OF AMERICA,

Appellee,

v.

DAVID STAVELEY, a/k/a Kurt D. Sanborn, a/k/a David Sanborn, a/k/a Kurt Sanborn, a/k/a David Adler Staveley,

Defendant, Appellant.

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

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

Before

Thompson, Selya, and Gelpí, Circuit Judges.

Kara Hoopis Manosh for appellant. Lauren S. Zurier, Assistant United States Attorney, with whom Zachary A. Cunha, United States Attorney, was on brief, for appellee.

August 2, 2022 SELYA, Circuit Judge. In United States v. Teeter,

(1st Cir. 2001), and its progeny, this court has upheld

the general validity of appeal waivers in criminal cases. See

; see also United States v. O'farrill-López,

(1st Cir. 2021); United States v. Almonte-Nuñez,

(1st Cir. 2014); United States v. Nguyen,

(1st

Cir. 2010). Those decisions paint the backdrop for this appeal,

in which defendant-appellant David Staveley asks us to override an

appeal waiver and allow him to proceed with an appeal based on

what he alleges to be the ineffective assistance of his counsel

below. This entreaty runs headlong into the well-established Mala

rule, which instructs that a "fact-specific claim[] of ineffective

assistance [of counsel] cannot make [its] debut on direct review"

when the record is insufficiently "developed to allow reasoned

consideration of the claim." United States v. Mala,

(1st Cir. 1993).

In our view, the Mala rule must prevail. Thus, we hold

that ineffective assistance of counsel claims, not raised in the

district court and not within an exception to Mala, are inadequate

to overcome an appeal waiver. Consequently, we dismiss the appeal.

I

We briefly rehearse the background and travel of the

case. Because this appeal follows a guilty plea, we take the facts

from the change-of-plea colloquy, the unchallenged portions of the

- 2 - presentence investigation report (PSI Report), and the transcript

of the disposition hearing. See United States v. Lessard,

(1st Cir. 2022).

When the COVID-19 pandemic ravaged the nation, Congress

created emergency financial assistance programs to ameliorate the

economic consequences wrought by the crisis. See Coronavirus Aid,

Relief, and Economic Security Act,

Stat.

281 (2020). One of these programs — the Paycheck Protection

Program (PPP) — provided small businesses with funds necessary to

meet their employees' salaries and other operating expenses. See

§ 1102, 134 Stat. at 286-94.

In April of 2020, the defendant — along with a

co-conspirator — submitted several false and fraudulent loan

applications seeking PPP funds. Those applications were

ostensibly made on behalf of various entities, claiming that the

entities had several employees and large payrolls. In reality,

those entities — at the time the applications were made — either

had no employees at all or paid out no wages in the relevant time

frame.

After these machinations came to light, the defendant

was charged by criminal complaint in the District of Rhode Island.

The affidavit accompanying the complaint alleged in substance that

the defendant had committed bank fraud, see

, had

conspired to commit bank fraud, see

§§ 1344, 1349, and had

- 3 - perpetrated other federal crimes, see

(a) &

(conspiracy to make false statements to influence the

Small Business Administration); 18 U.S.C. § 1028A (aggravated

identity theft). While awaiting trial, the defendant was released

on personal recognizance and was later required to stay in home

confinement.

In disregard of the conditions of his release, the

defendant fled from the state. To avoid apprehension, he staged

a fake suicide and — while on the lam — used false identities and

stolen license plates. Those events led to an additional federal

charge for failing to appear in court. See id. § 3146(a)(1).

Approximately one year later, the defendant — who by

then had been charged by a grand jury — agreed to plead guilty to

conspiracy to commit bank fraud, see id. §§ 1344, 1349, and to

failure to appear in court, see id. § 3146(a)(1). His plea

agreement contained a waiver-of-appeal provision, which stated

that the defendant agreed to forgo his right to appeal the

convictions and sentences imposed so long as the sentences imposed

were within or below the guideline sentencing range (as determined

by the sentencing court). At the change-of-plea hearing, the

district court specifically addressed the waiver-of-appeal

provision and confirmed that the defendant understood its

significance.

- 4 - The district court convened the disposition hearing on

October 7, 2021. At that hearing, the sentencing court determined

the defendant's total offense level and criminal history category.

Based on those determinations, the court found that the defendant's

guideline range suggested an aggregate sentence between fifty-one

and sixty-three months of incarceration.

The government argued for consecutive sentences

aggregating a within-Guidelines sentence of fifty-six months.

During the course of its argument, the government disputed the

defendant's claim that his post-traumatic stress disorder (PTSD)

stemmed from an alleged sexual assault while he had been in federal

custody for an earlier offense. It noted that the PSI Report

sketched an unclear picture of the factual basis for those

allegations.

Defense counsel rejoined that the appropriate sentences

would be time served with supervised release. He argued — among

other things — that the defendant's sentences should be mitigated

because the defendant had been diagnosed with PTSD. Although

acknowledging that the government had called into question the

underlying cause of that PTSD, he countered that he had provided

the district court with medical records substantiating the PTSD

diagnosis.

When mulling the sentencing factors, the district court

commented that "[t]he fact that serving time in prison for [the

- 5 - defendant] is more difficult because of the PTSD and the things

that [the defendant had] been through . . . is something that is

awful." Nevertheless, the court concluded that it was "also a

risk that [the defendant] knew [he] w[as] taking at the time that

[he] w[as] engaging in th[e] behavior." The court then imposed a

sentence of forty-four months for the conspiracy charge and a

sentence of twelve months for the failure-to-appear charge, to be

served consecutively. That aggregate sentence added up to a

within-Guidelines sentence. Finally, the court — pursuant to the

plea agreement — dismissed the other charges against the defendant.

Shortly after the disposition hearing, the defendant

sought and received court-appointed counsel pursuant to the

Criminal Justice Act. See id. § 3006A. The defendant's new

counsel then brought this timely appeal.

II

The defendant asserts — for the first time on appeal —

that his guilty plea (and, thus, his convictions and his aggregate

sentence) should be vacated because his then-counsel afforded him

ineffective assistance in derogation of his Sixth Amendment rights

both at the time he entered his plea and at sentencing. See U.S.

Const. amend. VI; see also Strickland v. Washington,

(1984); Hill v. Lockhart,

(1985) (applying

Strickland to claims of ineffective assistance in guilty-plea

context). As we explain below, this assertion blinks reality.

- 6 - Although "[t]he Sixth Amendment guarantees criminal

defendants the right to effective assistance of counsel," there is

no guarantee that a defendant can assert a violation of that right

for the first time on direct appeal of a conviction or sentence.

United States v. Chambers,

(1st Cir. 2013)

(alteration in original) (quoting Scarpa v. Dubois,

(1st Cir. 1994)). That admonition is doubly relevant where, as

here, a valid waiver-of-appeal provision may operate to preclude

the defendant's claims. Our inquiry begins with the threshold

issue: whether the waiver-of-appeal provision in the defendant's

plea agreement requires dismissal of the defendant's appeal.

A

We begin with first principles. In Teeter, we held that

a presentence waiver of appellate rights in a criminal case is

presumptively enforceable when it is made knowingly and

voluntarily. See Teeter,

. At the same time, we

rejected the notion that such waivers are invalid simply because

they are made before a defendant has any real "clue as to the

nature and magnitude of the sentencing errors" that may occur.

. Recognizing the "obvious dangers attendant to the

practice," though, we held that such waivers must "meet stringent

criteria" to ensure that they have been entered into knowingly and

voluntarily.

.

- 7 - We also held that "limits must be set on the effect that

can be given to [such waivers]."

. Although a knowing

and voluntary waiver of appellate rights is presumptively

enforceable, "no appeal waiver serves as an absolute bar to all

appellate claims." Garza v. Idaho,

(2019).

For instance, a waiver does not apply unless a "claim of error

falls within the scope of the waiver." O'farrill-López,

(citing Teeter,

); see Almonte-Nuñez,

. And because presentence appeal waivers are "made before

any manifestation of sentencing error emerges, appellate courts

must remain free to grant relief from them in egregious cases."

Teeter,

. "[I]f denying a right of appeal would

work a miscarriage of justice, the appellate court, in its sound

discretion, may refuse to honor the waiver."

With this foundation in place, we turn to the case at

hand. As an initial matter, the defendant appears to concede that

his appeal falls within the literal scope of the waiver-of-appeal

provision. He nonetheless argues, in broad strokes, that the

waiver of appeal is nugatory because he did not enter into his

guilty plea knowingly and voluntarily. As a fallback, he submits

that enforcement of the waiver would result in a miscarriage of

justice.

The common thread that runs through the defendant's

arguments is his allegation of ineffective assistance of counsel.

- 8 - The attorney who represented him below was — he says — asleep at

the wheel. But that allegation is not properly before us based on

our well-established Mala rule and, therefore, does not denature

the operation of the defendant's waiver.

To reach this conclusion, our starting point is whether

the waiver appears presumptively enforceable. Answering that

query will dictate how we evaluate the defendant's asseverational

array.

B

Under Teeter, we determine whether a presentence waiver

of appellate rights was entered into knowingly and voluntarily by

looking to the "text of the plea agreement and the content of the

change-of-plea colloquy" — the "critically important" sources for

a "determination of knowledge and volition." Teeter,

; see Nguyen,

. The waiver's scope must be clear

and definite. See Teeter,

; Nguyen,

.

The district court also must "question the defendant specifically

about [his] understanding of the waiver provision and adequately

inform [him] of its ramifications." Teeter,

; see

Nguyen,

. "If this appraisal shows that the waiver

was made knowingly and voluntarily," it is "presumptively

enforceable." Nguyen,

.

Here, the plea agreement and the transcript of the

change-of-plea colloquy make manifest that the defendant's waiver

- 9 - of appellate rights is presumptively valid. The plea agreement

"contains a clear statement elucidating the waiver and delineating

its scope." Teeter,

. Indeed, the defendant does

not argue to the contrary.

The change-of-plea colloquy reflects that the district

court's questioning anent the waiver was unimpugnable. The

adequacy of such an inquiry "depends on the specifics of the case,

including questions asked or statements made by the judge,

characteristics of the defendant, and evidence that the defendant

understood that he was waiving his right to appeal." United States

v. Morillo,

(1st Cir. 2018).

The court below twice inquired whether the defendant

understood that — by entering into the plea agreement — he would

be relinquishing the right to appeal the sentences to be imposed.

Though the district court did not refer specifically to his waived

right to appeal the convictions, it confirmed generally that

counsel had read and discussed the plea agreement with the

defendant and that the defendant understood the agreement's terms.

That line of questioning — in the circumstances of this case — was

satisfactory to "confirm the defendant's understanding of the

waiver and [his] acquiescence in the relinquishment of rights that

it betokens." Teeter,

n.7; see United States v.

Rodriguez-Monserrate,

(1st Cir. 2021).

- 10 - In an effort to blunt the force of this reasoning, the

defendant suggests that the court failed to comply with Federal

Rule of Criminal Procedure 11(b)(1)(N). That rule requires that

when a defendant seeks to waive his right to appeal a sentence

while pleading guilty, the district court "must inform the

defendant of, and determine that the defendant

understands, . . . the terms of any plea-agreement provision

waiving the right to appeal or to collaterally attack the

sentence." Fed. R. Crim. P. 11(b)(1)(N).

We have held that when a defendant challenges the

enforceability of an appeal waiver based on an unpreserved claim

of a Rule 11(b)(1)(N) violation, review is only for plain error.

See Rodriguez-Monserrate,

; Morillo,

.

And in this instance, the record is devoid of any semblance of a

Rule 11(b)(1)(N) error, plain or otherwise.

The alleged Rule 11(b)(1)(N) error is based on the

brevity of the court's questioning. The defendant insists that

the court should have asked more than once about his waiver. More

thorough inquiry was required, the defendant argues, because he

was not adequately prepared by counsel and was unaware that he was

giving up the right to direct appeal of any ineffective assistance

claim.

The defendant's arguments are groundless. When the goal

is to achieve a clear understanding, brevity can be a plus rather

- 11 - than a minus. Here, moreover, the district court's inquiry was

thorough, and the key question was twice repeated. And, finally,

the change-of-plea hearing was not the defendant's first rodeo —

he had previously pleaded guilty to federal fraud violations on

two unrelated occasions.

We add that nothing contained in the defendant's

briefing suggests that the "waiver deserved enhanced scrutiny."

Morillo,

. The defendant does not, for example, claim

that he was an inexperienced youth, that he did not understand the

English language, or that the district court's statements were

contradictory. Instead, the defendant's arguments hint that the

court should have remediated the supposed ineffectiveness of his

own counsel or drilled down to lay bare what kinds of claims would

be barred by his waiver. No circumstances in the record suggest

the necessity for such granular detail. The district court was

entitled to rely on the defendant's representations that he was

satisfied with his counsel's handiwork, that he had reviewed the

terms of the plea agreement with his counsel, and that he

understood all of those terms. See Nguyen,

.

The short of it is that the court's questioning was

adequate and certainly clearer than questioning that we have

approved in other cases. See, e.g., United States v. De-La-Cruz

Castro,

(1st Cir. 2002) (upholding waiver

notwithstanding district court's somewhat confusing qualification

- 12 - that defendant could appeal "in some circumstances" (quotations

omitted)). No more was exigible.

C

This brings us to the defendant's principal reasons as

to why the waiver-of-appeal provision should not be enforced.

Those reasons are premised on his claims of ineffective assistance

of counsel concerning both his guilty plea and his aggregate

sentence.

But "[w]e have held with a regularity bordering on the

monotonous that fact-specific claims of ineffective assistance

cannot make their debut on direct review of criminal convictions."

Mala,

; see United States v. Padilla-Galarza,

(1st Cir. 2021); United States v. Tkhilaishvili,

(1st Cir. 2019); United States v. Santana-Dones,

(1st Cir. 2019). This so-called Mala rule is a

"prudential precept" based on practical realities. Padilla-

Galarza,

; see Mala,

. Defendants

bringing ineffective-assistance claims "must show, first, that

counsel's performance was constitutionally deficient and, second,

that the deficient performance prejudiced the defense." Mala,

(citing Strickland,

). Those showings

"typically require the resolution of factual issues that cannot

efficaciously be addressed in the first instance by an appellate

tribunal."

After all, it is the trial court that "has a

- 13 - superior vantage from which to 'assess both the quality of the

legal representation afforded to the defendant in the district

court and the impact of any shortfall in that representation.'"

Padilla-Galarza,

-94 (quoting Mala,

).

To be sure, not all ineffective-assistance claims come

within the reach of the Mala rule. We may consider such claims,

first brought on direct appeal, in those rare instances when "the

critical facts are not genuinely in dispute and the record is

sufficiently developed to allow reasoned consideration." United

States v. Miller,

(1st Cir. 2018) (quoting United

States v. Natanel,

(1st Cir. 1991)).

The defendant in this case seeks to avail himself of

this so-called Natanel exception. But this exception "is narrow,

and its applicability depends on the particular circumstances of

a given case." Padilla-Galarza,

. Contrary to the

defendant's importunings, his claims do not fit within the isthmian

confines of the Natanel exception. We explain briefly.

1

The defendant asserts — in spite of copious evidence

that he fully understood his plea agreement and was satisfied with

his representation — that he received ineffective assistance of

counsel in advance of the change-of-plea hearing, rendering his

guilty plea unknowing and involuntary. He avers that — through

fault of his counsel — he was unable to access the discovery

- 14 - materials while in pretrial custody before the hearing and was

generally unaware of the evidence supporting the prosecution.

Because he was not apprised of the evidence before agreeing to

plead guilty, his thesis runs, he could not have entered into the

waiver of appeal knowingly and voluntarily.

This claim is fact-specific and, thus, within the

heartland of the Mala rule. Consequently, it would be improvident

to address the defendant's one-sided version of the facts on direct

appeal.

The defendant acknowledges as much by conceding that the

record does not illuminate any issues regarding access to discovery

materials. Though he submits extra-record documents on appeal

purporting to show that he could not access the evidence while in

custody, those submissions are insufficient to ground his claim.

Crucially, the record is tenebrous as to whether

counsel's performance was constitutionally deficient. The

defendant admitted the government's factual proffer under oath.

What is more, he declared that he was satisfied with his attorney's

representation. To square these admissions against his nascent

claim that he was not seasonably provided with the evidence raises

factual questions not only as to the truth of the defendant's

claims but also as to whether counsel furnished him with other

information, guidance, or advice sufficient to remediate any

alleged inability to review the evidence in his case ahead of his

- 15 - plea. Given the limitations of the record on appeal, there is no

principled way that we can answer those questions with "only [the

defendant's] word as to what occurred." United States v. Torres-

Rosario,

(1st Cir. 2006).

We think it follows that we cannot review these

allegations of ineffective assistance in a manner sufficient to

assess the enforceability of the defendant's waiver. See United

States v. Chandler,

(1st Cir. 2008); see also

United States v. Edgar,

(10th Cir. 2003)

(declining to address ineffective-assistance claim related to

enforceability of waiver despite well-established rule that court

"will not enforce a waiver that is the product of ineffective

assistance of counsel"). Simply put, the connective tissue

necessary to make out the defendant's ineffective assistance of

counsel claim concerning his plea lies well outside the record on

appeal. That means, of course, that we cannot proceed to find the

waiver of appeal unenforceable on this ground.

2

The defendant's fallback position is that the

waiver-of-appeal provision should not be enforced by reason of the

miscarriage of justice exception to the appeal-waiver framework.

See Teeter,

. He complains that counsel should have

taken further measures to substantiate his claim that he was

assaulted while in federal custody to mitigate his sentence. In

- 16 - the defendant's view, enforcing the waiver to preclude this claim

would amount to a miscarriage of justice because the alleged error

is of constitutional dimension and occurred after he entered his

plea.

Once again, these allegations of ineffective assistance

are prematurely before us on direct review. They therefore afford

no foothold for refusing to enforce the waiver. On this record,

addressing the defendant's allegations of ineffective assistance

at sentencing would require us to "play[] blindman's buff." Mala,

.

For one thing, the record is not transparent on the

critical facts as to counsel's performance — the first element of

the Strickland test. The record reflects that defense counsel

made the district court aware of the PTSD diagnosis stemming from

the alleged assault. That counsel did not further substantiate

the assault allegations may well have been an informed choice.

There is little in the record to explain "why counsel acted as he

did." Torres-Rosario,

(emphasis in original). That

sort of "information [is] rarely developed in the existing

[appellate] record."

And absent such information, "it is

virtually impossible to assess what reasoning, if any, guided

counsel's actions." Tkhilaishvili,

; see Massaro v.

United States,

(2003) (explaining that "appellate

court[s] may have no way of knowing whether a seemingly unusual or

- 17 - misguided action by counsel had a sound strategic motive or was

taken because the counsel's alternatives were even worse").

For another thing, we are confident that the district

court would be in a better position to assess the second element

of the Strickland test: whether the defendant has shown "that

there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have

been different." Strickland,

. At the disposition

hearing, the district court acknowledged the defendant's PTSD "and

the things that [the defendant had] been through," which strongly

indicates that the court gave at least some credit to the

defendant's allegations of assault. In these circumstances, it

would be imprudent for us to guess whether additional

substantiation regarding the assault would or would not have

altered the court's decisionmaking calculus. Cf. United States v.

Ladd,

(1st Cir. 1989) ("[R]obes and gavels are

the tools of a jurist's trade — not tea leaves or crystal balls.").

We are especially reluctant to step into the district judge's shoes

when — as in this case — the arguments at issue were designed to

influence her discretionary weighing of the sentencing factors.

It would be both more efficient and more desirable for the district

judge, in the first instance, to say whether a different balance

would have been struck.

- 18 - Because the defendant's allegations of ineffective

assistance at sentencing cannot meaningfully be reviewed on the

existing record, they cannot underpin a miscarriage-of-justice

claim sufficient to upset an appellate waiver. We have said before

— and today reiterate — that it would be absurd to conclude that

the enforcement of a waiver would work a miscarriage of justice

when "we would decline to hear [the defendant's] claims on direct

appeal." United States v. Torres-Estrada,

(1st

Cir. 2016). If the simple fact that a defendant can muster claims

that might ordinarily be cognizable on appeal was enough to nullify

a valid waiver-of-appeal provision, then waiver-of-appeal

provisions would be little more than empty vessels. See United

States v. Edelen,

(1st Cir. 2008).

"Triggering the miscarriage of justice exception

requires, at a bare minimum, an increment of error more glaring

than routine reversible error." Nguyen,

. Thus, a

defendant will rarely, if ever, carry his burden of showing a

miscarriage of justice based on an ineffective assistance of

counsel claim falling within the Mala rule.

This makes perfect sense: whether the miscarriage-of-

justice exception applies is a fact-specific inquiry, involving a

multitude of considerations, such as "the clarity of the error,

its gravity, its character . . . , the impact of the error on the

defendant, the impact of correcting the error on the government,

- 19 - and the extent to which the defendant acquiesced in the result."

Teeter,

. In the end, the exception requires "an

error of significant or constitutional dimension [that] is clear."

United States v. Del Valle-Cruz,

(1st Cir. 2015)

(emphasis added).

Absent some footing in the record, we cannot determine

whether enforcing the waiver would result in a miscarriage of

justice. After all, the clarity of an alleged error — or its lack

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

against the record. See United States v. Santiago,

(1st Cir. 2014) (identifying "error" as "clear" based on review of

sentencing transcript and written judgment); United States v.

Rivera-López,

(1st Cir. 2013) (declining to

"speculate" regarding information "not before us on th[e] appeal"

in addressing claim of error). And without adequate indicia in

the record concerning the impact of an alleged error, there is no

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

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

of speculation and surmise. See O'farrill-López,

(rejecting miscarriage-of-justice argument because "impact of the

challenged action . . . [wa]s wholly conjectural").

Where, as here, the claimed error is a fact-specific

claim of ineffective assistance of counsel raised for the first

time on appeal and falling within the Mala rule, the requisite

- 20 - degree of clarity will almost always be lacking. See United States

v. Torres-Oliveras,

(1st Cir. 2009) (rejecting

reliance on miscarriage-of-justice exception based on ineffective

assistance of counsel where record inhibited assessment of whether

attorney's action was erroneous or "strategic" and whether the

"sentence would have been different"). The upshot, then, is that

when an ineffective assistance of counsel claim cannot be

adequately adjudicated based on the existing record, reliance on

that claim to show a miscarriage of justice will be fruitless.

To say more would be to paint the lily. Ineffective

assistance of counsel claims — not raised in the district court

and not within an exception to Mala — cannot overcome an otherwise

enforceable appeal waiver. So it is here: we conclude that the

defendant's allegations that he received ineffective assistance of

counsel fall within the Mala rule and, thus, cannot surmount his

waiver of appeal.

D

There is one loose end. Enforcement of a waiver-of-

appeal provision ordinarily requires dismissal of the appeal. When

an appellant asserts that counsel's ineffective assistance

invalidates his plea agreement, though, the claim usually may be

addressed notwithstanding a waiver-of-appeal provision in the plea

agreement. Rudimentary logic teaches that a waiver of appeal will

typically fall by the wayside when an appellant "challenges the

- 21 - validity of the plea itself." United States v. Ramos-Mejía,

(1st Cir. 2013) (citing Chambers,

); cf.

Teeter,

n.9 (suggesting that circumstances in which

"plea proceedings were tainted by ineffective assistance of

counsel" could warrant setting aside waiver based on miscarriage-

of-justice exception). If a plea agreement is invalid, then its

components — including any waiver-of-appeal provision — are

necessarily void as well. See Ramos-Mejía,

.

Here, however, a different outcome is required because

the ineffective-assistance claim that targets the plea is brought

for the first time on appeal and falls squarely within the Mala

rule. When an ineffective-assistance claim is raised for the first

time on direct appeal and does not trigger any exception to the

Mala rule, we have two options: we may either dismiss the appeal

without prejudice, thus allowing the defendant to bring his claim

in a collateral proceeding, see, e.g., Padilla-Galarza,

; or — under "special circumstances" — we may remand the claim

to the district court for an evidentiary hearing, United States v.

Vega Molina,

(1st Cir. 2005). Because no special

circumstances are apparent here, dismissal of both claims is the

appropriate remedy. The defendant may seek to address his "newly

minted ineffective assistance of counsel claim[s]" through "a

collateral proceeding brought in the district court under

." Padilla-Galarza,

. At that time, the

- 22 - district court also can address the defendant's piggybacked claim

that the ineffective assistance of his counsel regarding the

discovery materials undermined his guilty plea.

III

We need go no further. Waivers of appeal are important

tools in the plea-bargaining process. This case, however, is less

about waivers of appeal and more about the Mala rule: a "fact-

specific claim[] of ineffective assistance [of counsel] cannot

make [its] debut on direct review" when the record is

insufficiently "developed to allow reasoned consideration of the

claim." Mala,

. For the reasons elucidated above,

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

the defendant, should he so elect, to prosecute his ineffective

assistance of counsel claims in a collateral proceeding under

.

Dismissed without prejudice.

- 23 -