
USCA1 Opinion

	




          June 6, 1996          [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-1861                                    UNITED STATES,                                      Appellee,                                          v.                               FRANCISCO PEREZ-REYNOSO,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________               Francisco A. Perez Reynoso on brief pro se.               __________________________               Kevin G. Little on Anders brief for appellant.               _______________    ______                                 ____________________                                 ____________________                      Per Curiam.  Francisco Perez Reynoso pled guilty to                      __________            possession of cocaine with  intent to distribute in violation            of 46 U.S.C.  App.   1903(a)(b)(1) and (f) and  18 U.S.C.   2            and   was sentenced to 108  months in prison.   He then filed            this appeal.  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  has  moved  to            withdraw  as counsel.   Perez has filed  a separate appellate            brief  and other  materials challenging  his guilty  plea and            sentence.  Because the appeal presents no meritorious issues,            we affirm Perez's conviction and sentence and grant counsel's            motion to withdraw.           I.  Challenge to Guilty Plea                                              ________________________                      Perez contends, in substance,  that his guilty plea            was not voluntarily and knowingly entered.  He claims that he            never agreed  to plead guilty  in exchange  for a  government            recommendation  that he  receive  a ten-year,  rather than  a            seven-year, sentence.  He says in his appellate brief that he            did not know that his recommended sentence would be ten years            until  he was in the  plea hearing; in  a different appellate            submission,  he states that  he did not know  he faced a ten-            year sentence until he signed his plea agreement.  Perez also            claims that the government promised to recommend a seven-year            sentence if he cooperated and that his first counsel had been            negotiating a  seven-year plea agreement when  threats by his            co-defendants made him obtain her dismissal.                                         -2-                      We assess  those claims  in light of  the following            factors:  their plausibility, the timing of Perez's challenge            to his  guilty plea;  whether he  asserts his  innocence; and            whether his plea  was involuntary, in  derogation of Rule  11            requirements,  or otherwise  legally  suspect.    See  United                                                              ___  ______            States v.  Lopez-Pineda, 55 F.2d  693, 696 (1st  Cir.), cert.            ______     ____________                                 _____            denied, 116 S. Ct. 259 (1995).  All of those factors indicate            ______            that Perez's guilty plea should be sustained.                        The record does not support Perez's contention that            his  plea  was not  voluntarily  or knowingly  entered.   The            record shows that Perez knew the government would recommend a            ten-year sentence before he pled  guilty.  The plea agreement            he signed  before pleading guilty explicitly  stated that the                       ______            government would  recommend a  120-month sentence  (i.e., ten            years).   His attorney's alleged failure to tell him that the            recommended  sentence would  be ten  rather than  seven years            until right  before  he signed  the plea  agreement does  not            warrant invalidating  his subsequent  guilty plea.   Since he            knew by the  time of  the plea hearing  that his  recommended            sentence was ten  years, he  did not reasonably  rely on  any            earlier representation regarding a  seven-year recommendation            in  pleading guilty.  Finally, as the plea agreement and plea            hearing  transcript make  clear,  Perez knew  before he  pled            guilty  that the only terms and  conditions applicable to his            guilty  plea  were  those   contained  in  his  written  plea                                         -3-            agreement.   Thus,  he knew  that any  verbal representations            concerning  a seven-year sentence,  allegedly made in earlier            discussions between the government and his first counsel, did            not apply.                        Consideration  of  the  other  factors  cited above            shows  as well that Perez's guilty  plea should be sustained.            As noted, Perez never  asked the district court to  allow him            to withdraw his guilty plea; hence, his  present challenge is            very belated.   Moreover, he  does not assert  his innocence,            but only that he did not want to plead guilty  if he received            a ten-year sentence.  He has not alleged that his guilty plea            was  coerced; indeed, in his  plea agreement and  at his plea            hearing,  he stated  that it  was not  coerced.   He  has not            alleged  that he did not  understand the charges  to which he            pled  guilty.   Lastly,  the plea  hearing  was conducted  in            conformity with the requirements of Fed. R. Crim. P. 11.                      II.  Challenge to Sentencing                           _______________________                      On appeal,  Perez suggests  that  his base  offense            level should have been less than 31 for two reasons.  He says            that he was a minimal,  not just a minor, participant in  the            offense  to which  he  pled guilty.    See U.  S.  Sentencing                                                   ___            Guideline    3B1.2(a) & (b).   He also claims that mitigating            circumstances  warranted a lower base offense level.                        In part, Perez is  asking us to relieve him  of the            concessions  he made in his  plea agreement --  that his base                                         -4-            offense level would be 31, that he was a  minor (not minimal)            participant,  and that  no  further adjustments  to his  base            offense level would be made -- which we perceive no basis for            doing.  We also note that the sentencing transcript indicates            that Perez  had ample opportunity to  describe his mitigating            circumstances at sentencing and that the court was influenced            by his  allocution.   The court  imposed the lowest  sentence            possible  given  Perez's  sentencing  guideline  range  --  a            sentence  which was  twelve months  lower than the  one Perez            agreed to in his plea agreement.  Perez did not ask the court            to depart downward from the sentencing guideline range.                      We affirm  appellant's conviction and  sentence and                      ___________________________________________________            grant appellate counsel's motion to withdraw.            _____________________________________________                                         -5-
