      [NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

         United States Court of Appeals
                     For the First Circuit


No. 00-1495

                         UNITED STATES,

                           Appellee,

                                 v.

       EDWIN COTTO SANTIAGO, a/k/a SEALED DEFENDANT 8,
                 a/k/a EL GATO, a/k/a EL NINO,
               a/k/a EL LOCO, a/k/a EL PEQUENO,

                     Defendant, Appellant.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF PUERTO RICO

        [Hon. Héctor M. Laffitte, U.S. District Judge]


                               Before

                       Boudin, Chief Judge,
              Torruella and Selya, Circuit Judges.



     Ignacio Fernandez de      Lahongrais   on   Anders   brief   for
appellant.
     Edwin Cotto Santiago on   brief pro se.
     Guillermo Gil, United     States Attorney, Jorge E. Vega-
Pacheco, Assistant United      States Attorney, and Thomas F.
Klumper, Assistant United       States Attorney, on brief for
appellee.
                          July 10, 2001


    Per Curiam. Defendant’s counsel has submitted an Anders

brief and motion to withdraw, asserting that there are no

meritorious issues to be raised on appeal. See Anders v.

California, 386 U.S. 738, 744 (1967); 1st Cir. Loc. R.

46.4(a)(4).    Defendant Edwin Cotton Santiago has filed a pro

se brief claiming ineffective assistance of counsel and

sentencing error.    He seeks only to be re-sentenced, not to

withdraw his guilty plea.    As required by Anders, we have

conducted a full examination of the proceedings.    Based on

that examination, we conclude that this appeal is wholly

frivolous as it presents no issue having an arguable basis in

law or fact.

    This case was consolidated for purposes of briefing and

argument with five appeals by co-defendants and the government

has filed a single brief in all six appeals.    However, this is

the only case in which defense counsel has filed a motion to

withdraw and an Anders brief.    Accordingly, we are issuing a

separate opinion in this case.

    Santiago pled guilty to a single count of a multi-count

indictment charging him and twenty co-defendants with

conspiring “to possess with intent to distribute more than one

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kilogram of heroin, and to distribute more than one kilogram

of heroin,” in violation of 21 U.S.C. §§ 841(a)(1) & 846.        The

statutorily prescribed penalty for that quantity of heroin is

a mandatory minimum of ten years and a maximum of life

imprisonment.   After pleading guilty, Santiago filed a pro se

motion seeking dismissal of his indictment on double jeopardy

grounds, which the court denied.     The probation department

calculated a guideline sentencing range of 121 to 151 months,

as set forth in the presentence investigation report.

Santiago received a ten-year sentence (the statutory mandatory

minimum).

    In his pro se brief, Santiago indicates that he does not

seek to withdraw his guilty plea. In any event, we agree with

appellant’s counsel that the change-of-plea hearing covered

all of the necessary points.   Appellant’s counsel also

correctly concluded that there was no meritorious issue

pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000).        “By

its own terms, the holding in Apprendi applies only when the

disputed ‘fact’ enlarges the applicable statutory maximum and

the defendant’s sentence exceeds the original maximum.” United

States v. Caba, 241 F.3d 98, 101 (1st Cir. 2001).    Here, the

statutory maximum was dictated by Santiago’s guilty plea to a

count that specified a drug quantity of “one or more


                               -3-
kilograms” of heroin.    He received a sentence well below that

original maximum.

     Similarly, our review of the record indicates that the

district court did not err in denying Santiago’s motion to

dismiss his indictment on double jeopardy grounds.    We focus

only on the counts to which Santiago pled guilty “because in

the taking of pleas jeopardy ordinarily does not attach to

counts which are dismissed and on which no finding of guilt is

made.” United States v. Rivera-Feliciano, 930 F.2d 951, 954

(1st Cir. 1991).    Santiago pled guilty in the United States

District Court for the Eastern District of New York to one

count of conspiracy to import heroin (encompassing the time

period of the present conspiracy charge).    In this case,

Santiago pled guilty to one count of conspiracy to possess

with intent to distribute and to distribute heroin.     Those

offenses each contain an element not contained in the other.

See United States v. Gomez-Pabon, 911 F.2d 847, 861-62 (1st

Cir. 1990). Therefore, the Double Jeopardy Clause does not bar

this prosecution. See United States v. Dixon, 509 U.S. 688,

696 (1993).

     In his pro se brief, Santiago claims ineffective

assistance of counsel resulting in a sentencing error.       The

crux of his argument is that counsel was ineffective in


                                -4-
allowing him to agree to a guideline sentencing range (“GSR”)

of 121 to 151 months.     He argues that the stipulated facts

incorporated in the plea agreement supported a finding of a

drug quantity of only 375 grams of heroin, corresponding with

a base offense level (“BOL”) of 26.     That BOL would have

yielded a GSR of 70 to 87 months.     “We do not normally

consider ineffective-assistance- of-counsel claims on direct

appeal.” United States v. Natanel, 938 F.2d 302, 309 (1st Cir.

1991).   However, this case falls within the following

exception to that rule:

      [W]here the critical facts are not genuinely in

      dispute and the record is sufficiently developed to

      allow reasoned consideration of an ineffective

      assistance claim, an appellate court may dispense

      with the usual praxis and determine the merits of

      such a contention on direct appeal.


Id.

      Even if the applicable GSR should have been 70 to 87

months (an issue that we need not decide), the sentencing

guidelines would not permit imposition of a sentence below the

statutory mandatory minimum of 120 months. See U.S.S.G. §

5G1.1(b) (“Where a statutorily required minimum sentence is

greater than the maximum of the applicable guideline range,

                                -5-
the statutorily required minimum sentence shall be the

guideline sentence.”).   Santiago does not dispute that he has

more than one criminal history point, which precludes

application of the safety valve provision and imposition of a

sentence below the statutory minimum. See 18 U.S.C. § 3553(f).

Therefore, he cannot meet the prejudice prong of the

ineffective assistance of counsel test.     Santiago received the

lowest sentence permitted by statute for the count to which he

pled guilty.1

    Counsel’s motion to withdraw is granted and appellant’s

conviction and sentence are affirmed.     See 1st Cir. Loc. R.

27(c).




    1 The only sentencing error that we detect is in Santiago’s
favor. It appears that the district court erred in imposing the
statutory mandatory minimum sentence even though that sentence
was below the GSR. See U.S.S.G. § 5G1.1. We do not correct that
error, however, because the government did not deign to file a
cross-appeal.

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