                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-4321
                                    ___________

United States of America,                *
                                         *
             Appellee,                   * Appeal from the United States
                                         * District Court for the
      v.                                 * Southern District of Iowa.
                                         *
Julian Rico Aguilera,                    *      [UNPUBLISHED]
                                         *
             Appellant.                  *
                                    ___________

                            Submitted: January 5, 2001

                                Filed: March 29, 2001
                                    ___________

Before McMILLIAN, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                             ___________

PER CURIAM.

       Julian Rico Aguilera was indicted for conspiring to possess with intent to
distribute an unspecified amount of cocaine and methamphetamine, in violation of 21
U.S.C. § 846. Aguilera pleaded guilty, stipulating he had distributed at least 100
pounds of methamphetamine and 200 pounds of cocaine during the course of the
conspiracy. At the plea hearing, after Aguilera acknowledged the stipulated quantities,
the district court1 advised that he faced a statutory maximum term of life in prison. At
sentencing, Aguilera agreed that his base offense level should be based on the
stipulated quantities. He was sentenced to 295 months in prison and five years
supervised release.

       On appeal, counsel moved to withdraw pursuant to Anders v. California, 386
U.S. 738 (1967), raising issues related to whether he was ineffective for failing to
demand that certain alleged oral agreements be made part of the plea agreement.
Aguilera made a pro se argument regarding the alleged oral promises. Because the
record is undeveloped on these issues, we conclude this appeal does not warrant
departure from the general rule that ineffective assistance claims should be examined
first by the district court in a 28 U.S.C. § 2255 proceeding. See United States v.
Santana, 150 F.3d 860, 863 (8th Cir. 1998).

        Reviewing the case under Penson v. Ohio, 488 U.S. 75 (1988), we note the
indictment did not charge a specific drug quantity, and Aguilera was sentenced above
the twenty-year maximum prison term authorized under 21 U.S.C. § 841(b)(1)(C) for
conspiracies involving unspecified amounts of cocaine or methamphetamine. However,
we conclude neither the conviction nor the sentence is vulnerable under Apprendi v.
New Jersey, 120 S. Ct. 2348 (2000). Aguilera’s guilty plea and waiver of his right to
appeal (with exceptions not relevant to this issue) waived any challenge to the
indictment. Moreover, he stipulated to drug quantities authorizing a maximum term of
life in prison as part of his plea agreement, and was advised at his plea hearing that he
could receive a life sentence. See 21 U.S.C. § 841(b)(1)(A); United States v.
McIntosh, 236 F.3d 968, 975-76 & n.10 (8th Cir. 2001).




      1
       The HONORABLE CHARLES R. WOLLE, United States District Judge for
the Southern District of Iowa.
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      The judgment of the district court is affirmed. We grant counsel’s motion to
withdraw and deny as moot the government’s motion to dismiss the appeal.

      A true copy.

            Attest:

                     CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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