USCA1 Opinion
June 27, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1022
UNITED STATES,
Appellee,
v.
EUGENIO JAMES PEREZ,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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Marcos A. Ramirez Lavandero on brief for appellant.
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Guillermo Gil, United States Attorney, Warren Vazquez, Assistant
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United States Attorney, and Jose A. Quiles-Espinosa, Senior Litigation
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Counsel, on brief for appellee.
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Per Curiam. Defendant, Eugenio James Perez,
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pleaded guilty to a one-count indictment charging him with
possession with intent to distribute approximately five
kilograms of cocaine in violation of 21 U.S.C. 841(a)(1);
the cocaine actually weighed 5.008 kilograms. He was
sentenced to ten years imprisonment, the statutory minimum
set forth in 841(b)(1)(A)(ii); the court did not impose a
fine. This appeal ensued.
While the appeal was pending, defendant's court-
appointed counsel filed a brief in accordance with Anders v.
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California, 386 U.S. 738 (1967). He requests that we dismiss
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the appeal as frivolous and allow him to withdraw. Defendant
had until May 2, 1994 to file a supplemental pro se brief
which he has not done.
In the Anders brief, counsel states that upon his
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review of the record there is no basis on which to attack the
change of plea or sentencing hearings -- both were conducted
in compliance with the applicable rules. See Fed. R. Crim.
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P. 11 and 32. Counsel then refers to two issues that might
deserve consideration by this court: (1) the trial court did
not consider the argument, made at sentencing, that because
defendant was a minor participant, there should have been an
additional downward departure under U.S.S.G. 3B1.2(b); and
(2) the fact that the amount of cocaine that subjected
defendant to the ten-year mandatory term of imprisonment set
forth in 841(b)(1)(A)(ii) (5 kilograms or more of cocaine)
was only .008 of a kilogram.
As for the first issue, there is no evidence that
the court ignored the argument except in its failure to
specifically mention it when imposing the sentence. In any
event, counsel and defendant only offered conclusory
statements that defendant was a carrier. Finally, assuming
that the cocaine weighed 5.008 kilograms, a downward
departure would have run afoul of the ten-year statutory
minimum.
The question of the amount of cocaine involves a
significant change in the sentencing options to which
defendant might have been subject. If the cocaine had
weighed less than 5 kilograms, the statutory minimum drops to
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five years. See 841(b)(1)(B)(ii). Defendant's base
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offense level then changes from 32 to 30. See U.S.S.G.
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2D1.1(c)(7) (at least 3.5 kilograms but less than 5 kilograms
of cocaine; level 30). With the three-level reduction for
acceptance of responsibility ordered by the sentencing court,
defendant's BOL would have been 27. Combined with a Criminal
History Category of II, the guideline range would be 78 to 97
months. Thus, defendant's sentence might have been less than
10 years.
Although defendant's trial attorney retained an
expert to weigh the cocaine, he never filed the expert's
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report (as ordered by the district court) nor did he raise
the issue at the sentencing hearing. One possible reason for
this omission could be that the expert, in fact, found that
the cocaine weighed more than 5 kilograms. We note only that
because a challenge to counsel's failure to file the report
or mention the issue at sentencing turns on matters outside
of the record, we would not consider it on direct review.
See, e.g., United States v. Arango-Echeberry, 927 F.2d 35, 39
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(1st Cir. 1991) (such a claim may be brought in a 28 U.S.C.
2255 motion). We, of course, express no opinion on the
merits of such a claim. The bottom line for present
purposes, however, is that there is absolutely nothing in the
record to support an argument that the cocaine weighed less
than 5 kilograms.
The brief shows that counsel conducted the required
review and analysis of the case. See Anders, 386 U.S. at 744
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(counsel must conscientiously examine the record and file a
brief pointing to anything that conceivably could support the
appeal). Upon our own examination of all the trial
proceedings, we conclude that the appeal is indeed frivolous.
As a result, we allow counsel's motion to withdraw and
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summarily affirm the judgment of the district court under
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Local Rule 27.1.
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