
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-1173                                                UNITED STATES,                                      Appellee,                                          v.                                    VITAL SAUANE,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                 [Hon. Francis J. Boyle, Senior U.S. District Judge]                                         __________________________                                 ___________________                                        Before                              Torruella, Selya and Cyr.                                   Circuit Judges.                                   ______________                                 ___________________               David A. Cooper and Cooper & Sanchez on brief for appellant.               _______________     ________________               Edwin J. Gale,  United States Attorney,  Margaret E.  Curran               _____________                            ___________________          and  Lawrence D.  Gaynor, Assistant  United States  Attorneys, on               ___________________          brief for appellee.                                  __________________                                    July 27, 1994                                  __________________                      Per Curiam.  Defendant contends that the government                      __________            breached  its agreement to recommend a prison sentence at the            low end  of the "applicable sentencing  guideline range" when            it recommended a  60-month sentence, the  statutory mandatory            minimum penalty under 21 U.S.C.    841(b)(1)(B), instead of a            46-month  sentence, the  bottom  of offense  level  23.   The            government  did  not  violate  the  plea  agreement.    Under            U.S.S.G.   5G1.1(b), "[w]here a  statutorily required minimum            sentence  is  greater  than  the maximum  of  the  applicable            guideline  range, the  statutorily required  minimum sentence                              ___________________________________________            shall  be the  guideline sentence."    (Emphasis added.)   In            _________________________________            other  words,   under  U.S.S.G.     5G1.1(b),  the  statutory            mandatory minimum sentence  became the "applicable  guideline            sentencing  range,"  a  "range"  consisting  of  one  number.            Consequently,  in  recommending   the  statutorily   required            minimum  sentence, the  government did  not violate  the plea            agreement.   We note,  moreover, that the  government pointed            out  at the plea hearing -- and the defendant acknowledged --            that defendant faced a minimum five-year prison term.                      Defendant  claims the  record  does  not show  that            defendant  understood the  plea  agreement.   On the  present            record,  we   disagree.     Defendant  was  assisted   by  an            interpreter at the change of plea hearing.  Counsel indicated            he had conferred with  defendant several times about pleading            guilty  and had  discussed the  process with  him  at length.                                         -2-            Defendant stated that he had read, understood, and signed the            plea  agreement, and he acknowledged that he was subject to a            minimum of five years in prison.   He also said he understood            that  the guideline  sentence could  not be  determined until            after the pre-sentence report was completed.  On this record,            defendant's claim  that, at the  time of pleading  guilty, he            understood   he  would   receive  a   46-month  sentence   is            unsupported.                      Any  claim  of  ineffective assistance  of  counsel            premised on counsel's having  promised a 46-month sentence or            having  improperly coached defendant on how to respond at the            plea  colloquy is not cognizable on direct appeal as it would            require proof of  facts outside the  present record.   United                                                                   ______            States  v.  Mala, 7  F.3d 1058,  1063  (1st Cir.  1993) (fact            ______      ____            specific  claims  of ineffective  assistance of  counsel must            first  be presented  to the  district court  -- usually  in a            section 2255 petition -- before being considered on appeal).                      We  have  fully  reviewed  the record  and  all  of            defendant's  arguments  and  find  no basis  to  disturb  the            judgment.  Appellant's  request for new counsel and  for oral            argument are denied.                      Affirmed.                      ________                                         -3-
