                  Not for Publication in West's Federal Reporter
                 Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                         For the First Circuit


No. 01-1389

                               UNITED STATES,

                                   Appellee,

                                        v.

                                PAUL MOUNTS,

                         Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                      FOR THE DISTRICT OF MAINE


              [Hon. Gene Carter, U.S. District Judge]


                                     Before

                        Lipez, Circuit Judge,
                    Stahl, Senior Circuit Judge,
                     and Howard, Circuit Judge.


     Thomas Stylianos, Jr. on Anders brief and Motion to Withdraw
as Counsel.
     Paul Mounts on brief pro se.



                              January 7, 2003
          Per Curiam. Paul W. Mounts pled guilty to conspiring

to distribute and possess with intent to distribute cocaine and

cocaine   base,      in    violation    of    21    U.S.C.   §§   841(a)(1),

841(b)(1)(A), and 846.        The district court determined that the

applicable guideline imprisonment range under the sentencing

guidelines    was    360    months     to   life.     However,    the   court

concluded that because a drug quantity had not been charged in

the indictment or proven to the jury beyond a reasonable doubt,

under Apprendi v. New Jersey, 530 U.S. 466 (2000), the maximum

sentence Mounts could receive was 20 years.                  Therefore, the

court sentenced him to 240 months in prison and 5 years of

supervised release.         He filed a notice of appeal.          Appointed

counsel has filed a brief under Anders v. California, 386 U.S.

738 (1967), and Mounts has filed a pro se supplemental brief.

          I.        Challenge to Guilty Plea

          Two of the issues raised by Mounts are, in substance,

challenges to his guilty plea. First, he argues that he wanted

to go to trial but that his attorney and the government

attorney would not allow it.                 Second, he claims that the

government breached its promise that if he pled guilty and

testified at co-defendant Heidi Chaffee's trial, he would

receive a lenient sentence. These arguments are unsupported by

the record.

                                     -2-
           As to the first of these arguments, Mounts never

asked the district court to allow him to withdraw his guilty

plea.   Nor has he, even in the present filing, asserted his

innocence of the offense to which he pled guilty.           The plea

hearing was conducted in conformity with the requirements of

Fed.R.Crim.P. 11. During the plea colloquy, Mounts denied that

anyone had "threatened [him] or . . . attempted to force [him]

or induce [him] in any way to tender his plea of guilty."

           As to Mounts' second argument, at his plea colloquy,

he assured the judge that no one had made a promise to him as

to what sentence would be imposed.         "Such statements in open

court during a plea hearing 'carry a strong presumption of

verity.'" United States v. Martinez-Molina, 64 F.3d 719, 733

(1st Cir. 1995).   Mounts' plea was entered pursuant to a written

plea agreement which specifically stated that it did not

require the government to move for a downward departure under

U.S.S.G.   §   5K1.1.    Mounts   agreed   to   cooperate   with   the

government and the government agreed to recommend that Mounts

be sentenced on the basis of a drug quantity of 500 grams to

1.5 kilograms of cocaine base. Mounts acknowledged in the plea

agreement that "there are no other promises or agreements,

either express or implied, other than those contained in this

Agreement."    We reject Mounts' challenge to his guilty plea.

                                  -3-
               To the extent that Mounts is claiming ineffective

assistance of counsel, the factual record concerning Mounts'

allegations that his attorney misled him about the consequences

of pleading guilty or his right to proceed to trial is not

sufficiently developed to permit reliable review on direct

appeal.     See Lopez-Pineda, 55 F.3d at 697.            Our rejection of

Mounts' ineffective assistance claim is without prejudice to

his presenting that claim on collateral review under 28 U.S.C.

§ 2255.

               II.   Challenge to Sentence

               A. Evidence from Chaffee Trial

               Mounts argues in his pro se brief that the sentencing

court erred by increasing his sentence on account of evidence

from the Chaffee trial that he had abused Chaffee, who was his

fiancé    as    well   as   his   co-defendant.    "Fed.R.Crim.P.      32,

U.S.S.G. § 6A1.3 and the Due Process Clause of the United

States Constitution require that a defendant be apprised of the

information to be relied on in sentencing and an opportunity to

rebut such information." United States v. Berzon, 941 F.2d 8,

1     7 (1st Cir. 1991).    This requirement was satisfied here.        At

the    presentence     conference,    the   sentencing    judge   informed

Mounts that he would be relying upon information received at



                                     -4-
the Chaffee trial, "thus enabling [Mounts] to respond to it

before the sentence was set." Id. at 21.

           Under the terms of the plea agreement, the court was

precluded from using Mounts' own testimony at the Chaffee trial

in "determining the applicable guideline range," with certain

exceptions. See U.S.S.G. § 1B1.8.       To the extent that Mounts

alleges that the court violated that prohibition, the record

does not support such an allegation.         In any event, it is

clear that no prejudice resulted from the court's reliance upon

any evidence presented at the Chaffee trial.         The transcript

from the sentencing hearing reveals that the court relied upon

evidence from the Chaffee trial in deciding not to grant the

three-level reduction for acceptance of responsibility.           Had

Mounts   received   the   three-level   reduction,   the   applicable

guideline sentencing range would have been 262 to 327 months.

The sentence Mounts received (240 months) was well below that

range.

           B. Drug Quantity

           Mounts appears to argue in his brief that the drug

quantity employed by the district court in arriving at his

sentence was higher than the quantity calculated in the PSR.

The record belies that claim.

           C. Government's Failure to Seek a § 5K1.1 Departure

                                -5-
           The government stated at the sentencing hearing that

it had decided not to seek a § 5K1.1 departure because Mounts

had violated the law by attempting to smuggle cigarettes into

the prison where he was detained while awaiting sentencing.

The plea agreement specifically provided that the government

was not required to seek a § 5K1.1 departure. The government's

decision   not       to   seek   a   departure   was    not    based    on    any

constitutionally          impermissible     factors    and    was   rationally

related    to    a    legitimate      government      end.      Under    these

circumstances,        the   government's     "unbridled       discretion"      in

deciding whether to file a § 5K1.1 motion was not constrained.

See United States v. Sandoval, 204 F.3d 283, 285 (1st Cir.

2000).

           D. Supervised Release Term

           The sentencing court gave the parties advance notice

(at the presentence conference) of its intent to impose a five-

year supervised release term and there was no objection.                     That

term did not exceed the governing statutory limits. See United

States v. Cortes-Claudio, No. 01-2113, slip op. at 8 (1st Cir.,

Dec. 2, 2002).            The court included in its Memorandum of

Sentencing Judgment the following reasons justifying a five-

year supervised release term: protection of the public and

rehabilitation of the defendant. In the plea agreement, Mounts

                                      -6-
admitted to a drug quantity of 50 grams or more of cocaine

base.    The United States Sentencing Guidelines' supervised

release maximum corresponding with that drug quantity is five

years. See U.S.S.G. §5D1.2(a)(1).     Under these circumstances,

there is no non-frivolous argument that it was plain error for

the court to impose a five-year supervised release term. See

United States v. Duarte, 246 F.3d 56, 62 (1st Cir. 2001).

           Counsel's   motion   to    withdraw   is   granted   and

appellant's conviction and sentence are affirmed. See Loc.R.

27(c).




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