March 22, 1993

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                           

No. 92-1304

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                       JOSE QUI ONES-PITA,

                      Defendant, Appellant.

                                          

No. 92-1305

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                      DOMINGO COTTO-GARCIA,

                      Defendant, Appellant.

                                          

                           ERRATA SHEET

      The  opinion of  this Court  issued on  March 16,  1993, is
amended as follows:

      Page  4,  line  3,  heading should  read:    APPELLANT JOSE
QUINO ES-PITA, instead of . . . QUINO ES . . .

March 17, 1993        [NOT FOR PUBLICATION]

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                           

No. 92-1304

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                       JOSE QUI ONES-PITA,

                      Defendant, Appellant.

                                          

No. 92-1305

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                      DOMINGO COTTO-GARCIA,

                      Defendant, Appellant.

                                          

          APPEALS FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

          [Hon. Jos  Antonio Fust , U.S. District Judge]
                                                       

                                           

                              Before

                       Breyer, Chief Judge,
                                          

                Torruella and Cyr, Circuit Judges.
                                                 

                                           

      Lydia Lizarribar-Masini for appellant Jos  Qui ones-Pita.
                             
      Gabriel Hern ndez-Rivera, by Appointment of the Court,  for
                              
appellant Domingo Cotto-Garc a.
      Jorge  E. Vega-Pacheco,  Assistant United  States Attorney,
                            
with whom  Daniel F. L pez-Romo,  United States Attorney,  was on
                               
brief for appellee.

                                           

                                           

          Per Curiam.  In  these appeals, which arise out  of the
                    

same facts, one  appellant challenges his sentence  and the other

challenges his guilty  plea.   Both challenges arise  out of  the

same count in  the common indictment: conspiracy to distribute at

least  five kilograms of cocaine.   Because we  find both appeals

meritless,  we affirm.    We discuss  our  reasoning as  to  each

appellant individually.

                  APPELLANT DOMINGO COTTO-GARCIA
                                                

          Appellant Cotto presents  us with a curious  claim.  On

the one hand, he asserts that he entered his plea voluntarily and

knowingly  as to all counts, including the count of conspiracy to

distribute  at least  five kilograms  of cocaine.   On  the other

hand, he maintains that he did not know his plea  would result in

a  sentence based  on a  conspiracy to  distribute at  least five

kilograms.   He contends,  therefore, that  he  should have  been

sentenced in accordance  with the amount  of cocaine he  actually

handled.   Appellant  essentially wishes  us  to leave  the  plea

agreement  intact,  but  remand  the  case  for  resentencing  in

accordance with a lower amount of cocaine.  We   cannot   do   as

appellant wishes.  

          Appellant specifically pled guilty  to a conspiracy  to

distribute five  kilograms of  cocaine, and expressly  refused to

seek  withdrawal  of  that  plea  at  oral   argument.    Indeed,

appellant's attorney plainly and repeatedly asserted the validity

of  that plea.   Thus, we are limited  to determining whether the

sentence  imposed pursuant  to that  plea was  improper.   As the

                               -3-

sentence fell  within the  applicable Sentencing  Guideline range

for appellant's crime, we conclude that it was entirely proper.

                   APPELLANT JOSE QUINO ES-PITA
                                               

          In  contrast to  appellant  Cotto,  appellant  Qui ones

seeks to withdraw his plea  as unknowing.  He claims that  at the

sentencing hearing,  he wished  to present evidence  negating the

factual  basis  for  the  plea.    Specifically,  he  sought  the

testimony  of appellant Cotto  to the effect  that the conspiracy

did  not  involve  five  kilograms.   Appellant  Cotto,  however,

invoked  his constitutional  right against  self-incrimination on

advice  of counsel,  and  the district  court  refused to  compel

Cotto's  testimony.   Appellant  claims that  the district  court

erred in doing so.  We find no error.

          Cotto's  right  to  claim  the  Fifth  Amendment  right

against self-incrimination  cannot be trampled upon  in appellant

Qui ones'  attempt to gain useful evidence.  See United States v.
                                                              

Zirpolo,  704 F.2d 23, 25-26  (1st Cir.), cert.  denied, 464 U.S.
                                                       

822 (1983);  United States v. Rodr guez, 706 F.2d 31, 36 (2d Cir.
                                       

1983).  The fact that Cotto already pled guilty to the conspiracy

charge did  not preclude him from claiming  the right.  The Fifth

Amendment  does not  require that  defendants face  such exposure

because they have already pled guilty.  So long as  the threat of

future prosecution exists, it is  clear that the Fifth  Amendment

protects  defendants  from   the  threat  of  self-incrimination.

Zirpolo,  704 F.2d at 25.   Cotto's testimony  could have exposed
       

him  to additional charges under both federal and state law.  The

                               -4-

district  court  did  not  err  in  refusing  to  compel  Cotto's

testimony.  There was no basis to withdraw the plea.

                            CONCLUSION
                                      

          Cases 92-1304 and 92-1305 are affirmed.
                                                

                               -5-
