USCA1 Opinion
June 6, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1861
UNITED STATES,
Appellee,
v.
FRANCISCO PEREZ-REYNOSO,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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Francisco A. Perez Reynoso on brief pro se.
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Kevin G. Little on Anders brief for appellant.
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Per Curiam. Francisco Perez Reynoso pled guilty to
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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
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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
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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.
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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
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States v. Lopez-Pineda, 55 F.2d 693, 696 (1st Cir.), cert.
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denied, 116 S. Ct. 259 (1995). All of those factors indicate
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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
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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
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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
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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
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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
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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
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grant appellate counsel's motion to withdraw.
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