
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1858                                    UNITED STATES,                                      Appellee,                                          v.                               VALENTIN SEVERINO-NUNEZ,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Cyr and Stahl, Circuit Judges.                                           ______________                                 ____________________            Raymond Rivera on brief for appellant.            ______________                                 ____________________                                   August 14, 1996                                 ____________________                      Per Curiam.  Valentin Severino Nunez pled guilty to                      __________            aiding  and  abetting  others in  possessing  with  intent to            distribute approximately  540  kilograms of  cocaine and  was            sentenced to  a 90-month  prison term.  He appealed  from his            sentence.   Appellate  counsel  has now  filed a  brief under            Anders v. California, 386 U.S. 738 (1967), asserting the lack            ______    __________            of  any  meritorious  ground  for  appeal,  and a  motion  to            withdraw which he has  served on Severino.  Although  counsel            notified Severino of his right to  file a supplemental brief,            Severino has not filed any brief and the deadline has passed.            Because we  agree that  this appeal has  no merit,  we affirm            Severino's  conviction and sentence  and grant the  motion to            withdraw.                        The plea  hearing transcript  shows that  the court            conducted a colloquy which substantially conformed to Fed. R.            Crim.  P. 11  requirements  and  that  Severino  pled  guilty            voluntarily and knowingly.  Hence, his guilty plea was valid.            Cf. United  States v. Cotal-Crespo,  47 F.3d 1, 4  (1st Cir.)            ___ ______________    ____________            (guilty  pleas which violate  the "core concerns"  of Rule 11            must be set  aside), cert. denied, 116 S. Ct. 94 (1995).  Any                                 ____________            technical defect was harmless.  See id.; see Fed. R. Crim. P.                                            ___ ___  ___            11(h) (variances from Rule 11  procedures which do not affect            substantial rights are to be disregarded).                        Any  claim that Severino  should have  received the            lowest  possible   sentence,  i.e.,  87   months,  would   be                                         -2-            meritless.   The applicable sentencing guideline range was 87            to  108  months.    In the  plea  agreement,  the  government            promised to  recommend a sentence  at the "lower" end  of the            range,  which it did.  At sentencing, the court imposed a 90-            month sentence, which was unquestionably within the lower end            of  the  guidelines.    Even  if,  despite  the  government's            recommendation,  the court had chosen an even higher sentence            within the  guideline range, Severino would have no basis for            complaint.  In his  plea agreement, he acknowledged  that the            court  was   not   bound  by   the  government's   sentencing            recommendations.                        Moreover,  Severino  cannot  avail  himself of  the            additional two-level reduction in base offense level accorded            some defendants by Amendment 515 of the Sentencing Guidelines            since he was sentenced before the Amendment became effective.            In  United States  v. Sanchez,  81  F.3d 9,  12-13 (1st  Cir.                _____________     _______            1995), petition for cert. filed, -- U.S.L.W. -- (U.S. July 8,                   ________________________            1996) (No. 96-5082), we determined that  the Amendment is not            retroactive.                      We affirm  appellant's conviction and  sentence and                      ___________________________________________________            grant counsel's motion to withdraw.            ___________________________________                                         -3-
