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United States v. Collins, 97-1186 (1997)

Court: Court of Appeals for the First Circuit Number: 97-1186 Visitors: 8
Filed: Nov. 13, 1997
Latest Update: Mar. 02, 2020
Summary: ___________, Stahl and Lynch, Circuit Judges.to a crime involving crack cocaine.with conspiring to possess and to distribute cocaine.guilty to conspiring to distribute cocaine base), cert.practice is not to consider such claims on direct appeal. We grant appellate counsel's motion to withdraw.
USCA1 Opinion












[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________


No. 97-1186

UNITED STATES,

Appellee,

v.

JOHN R. COLLINS,

Defendant, Appellant.

____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge] ___________________

____________________

Before

Torruella, Chief Judge, ___________
Stahl and Lynch, Circuit Judges. ______________

____________________

Robert R. Andrew on brief for appellant. ________________


____________________

November 12, 1997
____________________




















Per Curiam. John Collins appeals from his ___________

conviction and sentence for conspiring to possess with intent

to distribute and to distribute cocaine in violation of 21

U.S.C. 841(a), 841(b)(1), and 846. Appellate counsel has

filed a brief under Anders v. California, 386 U.S. 738 ______ __________

(1967), and a motion to withdraw. Counsel notified Collins

of his right to file a supplemental brief, but Collins has

not done so. After fully reviewing the record, we agree that

there is no meritorious ground for appeal, and so we affirm,

with the qualification noted further below.

Collins pled guilty at a plea hearing which

conformed substantially to Fed. R. Crim. P. 11 requirements.

He agreed with a prosecution version of the evidence which

made clear that there was a factual basis for his guilty plea

and which confirmed that he knew that he was pleading guilty

to a crime involving crack cocaine. Consequently, the

district court properly accepted his guilty plea and

sentenced him for conspiring to possess and to distribute

crack cocaine, even though the information charged him only

with conspiring to possess and to distribute "cocaine." See ___

United States v. Bush, 70 F.3d 557, 562 (10th Cir. 1995) ______________ ____

(rejecting claim for resentencing or withdrawal of guilty

plea to cocaine base offense on ground of ambiguous

indictment for conspiring to distribute "cocaine and/or

cocaine base" where the defendant's admissions in his plea



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agreement and at the plea hearing showed his intent to plead

guilty to conspiring to distribute cocaine base), cert. _____

denied, 116 S. Ct. 795 (1996). ______

The Anders brief also asserted that trial counsel ______

had represented Collins ineffectively, but our general

practice is not to consider such claims on direct appeal.

See United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993), ___ _____________ ____

cert. denied, 511 U.S. 1086 (1994). Accordingly, we dismiss ____________

the claim of ineffective assistance without prejudice to

Collins' right to assert it in a post-conviction proceeding

under 28 U.S.C. 2255. Id. ___

We affirm appellant's conviction and sentence, ___________________________________________________

without prejudice to his right to assert his claim of _____________________________________________________________

ineffective assistance of trial counsel under 28 U.S.C. _____________________________________________________________

2255. We grant appellate counsel's motion to withdraw. _______________________________________________________























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Source:  CourtListener

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