
USCA1 Opinion

	




          June 27, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1022                                     UNITED STATES,                                      Appellee,                                          v.                                 EUGENIO JAMES PEREZ,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Raymond L. Acosta, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Marcos A. Ramirez Lavandero on brief for appellant.            ___________________________            Guillermo  Gil, United States Attorney,  Warren Vazquez, Assistant            ______________                           ______________        United States Attorney, and Jose A. Quiles-Espinosa, Senior Litigation                                    _______________________        Counsel, on brief for appellee.                                 ____________________                                 ____________________                      Per   Curiam.    Defendant,  Eugenio  James  Perez,                      ____________            pleaded guilty  to a  one-count indictment charging  him with            possession  with  intent  to  distribute  approximately  five            kilograms of  cocaine in violation of 21  U.S.C.   841(a)(1);            the  cocaine  actually  weighed  5.008  kilograms.    He  was            sentenced to  ten years  imprisonment, the  statutory minimum            set forth in    841(b)(1)(A)(ii); the court did not  impose a            fine.  This appeal ensued.                      While  the appeal  was pending,  defendant's court-            appointed counsel filed a brief in  accordance with Anders v.                                                                ______            California, 386 U.S. 738 (1967).  He requests that we dismiss            __________            the appeal as frivolous and allow him to withdraw.  Defendant            had  until May  2, 1994 to  file a supplemental  pro se brief            which he has not done.                      In the  Anders brief, counsel states  that upon his                              ______            review of the record there is no basis on which to attack the            change of plea or sentencing hearings --  both were conducted            in compliance with the  applicable rules.  See Fed.  R. Crim.                                                       ___            P.  11 and 32.  Counsel then  refers to two issues that might            deserve consideration by this court:  (1) the trial court did            not consider  the argument, made at  sentencing, that because            defendant was a minor participant, there should have been  an            additional downward departure under U.S.S.G.    3B1.2(b); and            (2) the  fact  that  the  amount of  cocaine  that  subjected            defendant to the ten-year  mandatory term of imprisonment set            forth in   841(b)(1)(A)(ii) (5 kilograms  or more of cocaine)            was only .008 of a kilogram.                      As for the  first issue, there is  no evidence that            the  court  ignored the  argument  except in  its  failure to            specifically mention it  when imposing the sentence.   In any            event,   counsel  and   defendant  only   offered  conclusory            statements that  defendant was a carrier.   Finally, assuming            that  the  cocaine   weighed  5.008  kilograms,  a   downward            departure  would have  run  afoul of  the ten-year  statutory            minimum.                      The question  of the  amount of cocaine  involves a            significant  change   in  the  sentencing  options  to  which            defendant  might have  been  subject.    If the  cocaine  had            weighed less than 5 kilograms, the statutory minimum drops to                    ____ ____            five  years.    See    841(b)(1)(B)(ii).    Defendant's  base                            ___            offense level  then changes  from 32 to  30.  See  U.S.S.G.                                                            ___            2D1.1(c)(7) (at least 3.5 kilograms but less than 5 kilograms            of cocaine;  level 30).   With the three-level  reduction for            acceptance of responsibility ordered by the sentencing court,            defendant's BOL would have been 27.  Combined with a Criminal            History Category of II, the guideline range would be 78 to 97            months.  Thus, defendant's sentence might have been less than            10 years.                      Although  defendant's  trial  attorney retained  an            expert  to weigh  the cocaine,  he never  filed  the expert's                                         -3-            report  (as ordered by the  district court) nor  did he raise            the issue at the sentencing hearing.  One possible reason for            this omission could be  that the expert, in fact,  found that            the cocaine weighed more than 5 kilograms.  We note only that            because a challenge  to counsel's failure to  file the report            or  mention the issue at sentencing  turns on matters outside            of the record,  we would  not consider it  on direct  review.            See, e.g., United States v. Arango-Echeberry, 927 F.2d 35, 39            ___  ____  _____________    ________________            (1st Cir. 1991) (such a claim may be brought in a 28 U.S.C.              2255  motion).   We,  of course,  express  no opinion  on the            merits  of such  a  claim.    The  bottom  line  for  present            purposes, however, is that there is absolutely nothing in the            record to  support an argument that the  cocaine weighed less            than 5 kilograms.                      The brief shows that counsel conducted the required            review and analysis of the case.  See Anders, 386 U.S. at 744                                              ___ ______            (counsel must  conscientiously examine the record  and file a            brief pointing to anything that conceivably could support the            appeal).    Upon  our  own  examination   of  all  the  trial            proceedings, we conclude that the appeal is indeed frivolous.            As  a  result, we  allow  counsel's  motion to  withdraw  and                               _____            summarily  affirm the  judgment of  the district  court under                       ______            Local Rule 27.1.                                         -4-
