United States v. Rivera Santana

Opinion

USCA1 Opinion

April 23, 1996

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


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No. 95-1285



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                HECTOR RIVERA SANTANA,



                                Defendant, Appellant.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



             [Hon. Gilberto Gierbolini-Ortiz, Senior U.S. District Judge]
                                              __________________________



                                 ____________________



                                        Before



                               Selya, Boudin and Stahl,

                                   Circuit Judges.
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                                 ____________________



            Arthur  R.  Silen  and  Roberts  &   Newman,  P.A.  on  brief  for
            _________________       __________________________

        appellant.

            Guillermo   Gil,   United   States   Attorney,   and  Charles   E.
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        Fitzwilliam,   Assistant  U.S.   Attorney,  on   Motion  for   Summary
        ___________

        Disposition for appellee.


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Per Curiam.  Defendant's counsel has submitted an Anders
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            brief and  motion to  withdraw, asserting that  there are  no



            meritorious issues to  be raised  on appeal.   See Anders  v.
                                                           ___ ______



            State  of California, 386 U.S. 738, 744 (1967); 1st Cir. Loc.
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            R. 46.4(a)(4).  Defendant has not filed a separate brief, and



            the  government  has  moved  for summary  dismissal  of  this



            appeal.   As  required by  Anders, we  have conducted  a full
                                       ______



            examination of  the proceedings.  Based  on that examination,



            we  conclude  that  this appeal  is  wholly  frivolous  as it



            presents no issue having an arguable basis in law or fact.  



                 The   undisputed   facts   amply   support   defendant's



            conviction of the crimes charged, and the plea change hearing



            covered  all  the  necessary   points.    Further,  defendant



            received the benefit of the safety valve provision, 18 U.S.C.



              3553(f).  The court properly proceeded under the sentencing



            guidelines to calculate the base offense level for the amount



            of  cocaine involved and  to give  defendant the  full three-



            level credit for his acceptance of responsibility.  Defendant



            received  the minimum  sentence and  release terms  under the



            applicable  guidelines range.   Hence,  there is  no arguable



            appellate  issue  as  to defendant's  conviction,  plea,  and



            sentence.



                 Moreover,  no appealable issue  arises as to defendant's



            requests for an additional downward adjustment or  departure.



            Defendant  did not  pursue those  requests at  the sentencing


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hearing,  so they  may  be deemed  waived.   In  any case  he



            presented  no particular facts  justifying such an adjustment



            or departure based  on either his role in the  offense or his



            family responsibilities.   



                 Counsel's motion to withdraw is granted, and appellant's
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            conviction and sentence are  affirmed.  See 1st Cir.  Loc. R.
                                         ________   ___



            27.1.


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