[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1858
UNITED STATES,
Appellee,
v.
VALENTIN SEVERINO-NUNEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
Before
Torruella, Chief Judge,
Cyr and Stahl, Circuit Judges.
Raymond Rivera on brief for appellant.
August 14, 1996
Per Curiam. Valentin Severino Nunez pled guilty to
aiding and abetting others in possessing with intent to
distribute approximately 540 kilograms of cocaine and was
sentenced to a 90-month prison term. He appealed from his
sentence. 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 a motion to
withdraw which he has served on Severino. Although counsel
notified Severino of his right to file a supplemental brief,
Severino has not filed any brief and the deadline has passed.
Because we agree that this appeal has no merit, we affirm
Severino's conviction and sentence and grant the motion to
withdraw.
The plea hearing transcript shows that the court
conducted a colloquy which substantially conformed to Fed. R.
Crim. P. 11 requirements and that Severino pled guilty
voluntarily and knowingly. Hence, his guilty plea was valid.
Cf. United States v. Cotal-Crespo, 47 F.3d 1, 4 (1st Cir.)
(guilty pleas which violate the "core concerns" of Rule 11
must be set aside), cert. denied, 116 S. Ct. 94 (1995). Any
technical defect was harmless. See id.; see Fed. R. Crim. P.
11(h) (variances from Rule 11 procedures which do not affect
substantial rights are to be disregarded).
Any claim that Severino should have received the
lowest possible sentence, i.e., 87 months, would be
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meritless. The applicable sentencing guideline range was 87
to 108 months. In the plea agreement, the government
promised to recommend a sentence at the "lower" end of the
range, which it did. At sentencing, the court imposed a 90-
month sentence, which was unquestionably within the lower end
of the guidelines. Even if, despite the government's
recommendation, the court had chosen an even higher sentence
within the guideline range, Severino would have no basis for
complaint. In his plea agreement, he acknowledged that the
court was not bound by the government's sentencing
recommendations.
Moreover, Severino cannot avail himself of the
additional two-level reduction in base offense level accorded
some defendants by Amendment 515 of the Sentencing Guidelines
since he was sentenced before the Amendment became effective.
In United States v. Sanchez, 81 F.3d 9, 12-13 (1st Cir.
1995), petition for cert. filed, -- U.S.L.W. -- (U.S. July 8,
1996) (No. 96-5082), we determined that the Amendment is not
retroactive.
We affirm appellant's conviction and sentence and
grant counsel's motion to withdraw.
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