United States v. Collins

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 97-1186



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                   JOHN R. COLLINS,



                                Defendant, Appellant.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                              FOR THE DISTRICT OF MAINE



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



                                Torruella, Chief Judge,
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                           Stahl and Lynch, Circuit Judges.
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            Robert R. Andrew on brief for appellant.
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                                  November 12, 1997

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                      Per  Curiam.     John  Collins  appeals   from  his
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            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
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            (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
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            United  States v.  Bush, 70  F.3d 557,  562 (10th  Cir. 1995)
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            (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.
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            denied, 116 S. Ct. 795 (1996).
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                      The Anders  brief also asserted  that trial counsel
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            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),
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            cert. denied,  511 U.S. 1086 (1994).  Accordingly, we dismiss
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            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.
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                      We  affirm  appellant's  conviction  and  sentence,
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            without  prejudice  to  his  right to  assert  his  claim  of
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            ineffective assistance  of trial  counsel under  28 U.S.C.
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            2255.  We grant appellate counsel's motion to withdraw.
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