USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

___________________
No. 93-1173

UNITED STATES,
Appellee,
v.
VITAL SAUANE,
Defendant, Appellant.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, Senior U.S. District Judge]
__________________________
___________________
Before
Torruella, Selya and Cyr.
Circuit Judges.
______________
___________________

David A. Cooper and Cooper & Sanchez on brief for appellant.

_______________
________________
Edwin J. Gale, United States Attorney, Margaret E. Curran
_____________
___________________
and Lawrence D. Gaynor, Assistant United States Attorneys, on
___________________
brief for appellee.

__________________
July 27, 1994
__________________

Per Curiam.
__________
breached
low end

Defendant contends that the government

its agreement to recommend a prison sentence at the

of the "applicable sentencing

it recommended a

60-month sentence, the

minimum penalty under 21 U.S.C.

46-month

sentence, the

government
U.S.S.G.
sentence
guideline
shall

did

not

bottom

violate

greater

than

statutory mandatory

841(b)(1)(B), instead of a
of offense
the

5G1.1(b), "[w]here a
is

guideline range" when

plea

level

23.

agreement.

The
Under

statutorily required minimum

the maximum

of

the

applicable

range, the statutorily required minimum sentence

___________________________________________

be the

guideline sentence."

(Emphasis added.)

In

_________________________________
other

words,

under

U.S.S.G.

mandatory minimum sentence

sentencing

range,"

Consequently,
minimum

the

statutory

became the "applicable

guideline

"range"

recommending

sentence, the

agreement.
out

in

We note,

5G1.1(b),

consisting
the

government did

of

one

statutorily

required

not violate

moreover, that the

number.

the plea

government pointed

at the plea hearing -- and the defendant acknowledged --

that defendant faced a minimum five-year prison term.

Defendant
defendant
record,

claims the

understood the
we

disagree.

plea

record

does

agreement.

Defendant

was

interpreter at the change of plea hearing.

he had conferred with
guilty

and had

not show
On the

assisted

that

present
by

an

Counsel indicated

defendant several times about pleading

discussed the

process with

him

at length.

-2-

Defendant stated that he had read, understood, and signed the

plea

agreement, and he acknowledged that he was subject to a

minimum of five years in prison.

He also said he understood

that

the guideline

sentence could

not be

determined until

after the pre-sentence report was completed.

defendant's claim
understood

he

that, at the
would

receive

On this record,

time of pleading
a

46-month

guilty, he

sentence

is

unsupported.
Any

claim

of

ineffective assistance

premised on counsel's having

having
plea

counsel

promised a 46-month sentence or

improperly coached defendant on how to respond at the

colloquy is not cognizable on direct appeal as it would

require proof of
States
______

v.

specific
first

of

facts outside the

Mala, 7
____
claims

F.3d 1058,

of ineffective

be presented

to the

present record.

1063

(1st Cir.

assistance of

district court

United
______

1993) (fact
counsel must

-- usually

in a

section 2255 petition -- before being considered on appeal).

We
defendant's
judgment.

have

fully

arguments
Appellant's

and

reviewed
find

the record
no basis

to

and

disturb

request for new counsel and

argument are denied.

Affirmed.
________

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all

of
the

for oral