United States v. Lopez Cosme

USCA1 Opinion [NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit No. 98-1827 UNITED STATES, Appellee, v. RAUL ANTONIO LOPEZ-COSME, a/k/a EL MEJICANO, a/k/a LUIS-RAUL ANTONIO LOPEZ, Defendant, Appellant. ____________________ No. 98-1828 UNITED STATES, Appellee, v. ANDRES CAPELLAN-PEREZ, a/k/a "EL MAYOR" Defendant, Appellant. APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Jose Antonio Fuste, U.S. District Judge] Before Selya, Stahl and Lipez, Circuit Judges. Salvador Perez Mayol on brief for appellant Raul Antonio Lopez-Cosme. Ignacio Fernandez de Lahongrais on brief for appellant Andres Capellan-Perez. Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco, Assistant United States Attorney, and Nelson Perez-Sosa, Assistant United States Attorney, on brief for appellee. September 10, 1999 Per Curiam. In these two companion cases, appellants challenge their convictions and/or sentences imposed following their guilty pleas to conspiracy to distribute cocaine. See 21 U.S.C. 846. We affirm. I. Appeal No. 98-1827. Raul Antonio Lopez-Cosme challenges his sentence. Contrary to his suggestion, the court's imposition of the five- year statutory mandatory minimum sentence pursuant to 21 U.S.C. 841(b)(1)(B) did not constitute cruel and unusual punishment or violate a right to individualized sentencing under the Eighth Amendment. See Harmelin v. Michigan, 501 U.S. 957 (1991) (holding that sentence of life imprisonment without parole for possessing 672 grams of cocaine did not violate the Eighth Amendment's cruel and unusual punishment clause); United States v. Campusano, 947 F.2d 1, 3 (1st Cir. 1991) ("There is no constitutional right, in non-capital cases, to individualized sentencing."). Lopez-Cosme has failed to demonstrate that the district court erred in holding him responsible for the amount of cocaine stipulated to in the plea agreement. See generally United States v. Marrero-Rivera, 124 F.3d 342, 354 (1st Cir. 1997); United States v. Sanchez-Barreto, 93 F.3d 17, 25 (1st Cir. 1996), cert. denied, 519 U.S. 1068 (1997). Finally, he concedes, and we agree, that he is ineligible for relief under the "safety valve" provision of 18 U.S.C. 3553(f) because of his criminal record. Accordingly, the judgment is affirmed. See Loc. R. 27.1. II. Appeal No. 98-1828. Counsel for Andres Capellan-Perez has submitted an Anders brief and motion to withdraw representation, asserting that there are no meritorious issues to be raised on appeal. See Anders v. California, 386 U.S. 738 (1967); Loc. R. 46.4(a)(4). Counsel also moves to withdraw his statement of issues. Capellan-Perez has filed an "opposition" to the Anders brief in which he argues ineffective assistance of trial counsel. We agree with counsel that there was no plain error in failing to apply the "safety valve" provision in 18 U.S.C. 3553(f). We have carefully reviewed the record and have found no non-frivolous issue. Capellan-Perez's ineffective assistance of counsel argument is not properly raised on direct appeal. See United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993). Accordingly, the motion to withdraw representation is granted, and the judgment is affirmed. Counsel's motion to withdraw his statement of issues is denied since we have considered the issue raised therein. Our disposition of this appeal is without prejudice to Capellan-Perez raising his ineffective assistance of counsel argument in a 28 U.S.C. 2255 petition. We express no opinion on the merits of any such argument should a timely 2255 petition be filed. Affirmed.