United States v. Collins ( 1997 )

[NOT FOR PUBLICATION]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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