Notice: First Circuit Local Rule 36.2(b)6 States Unpublished Opinions May Be Cited Only in Related Cases.united States, Appellee, v. John R. Paquette, Defendant, Appellant, 108 F.3d 328 (1st Cir. 1997)

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US Court of Appeals for the First Circuit - 108 F.3d 328 (1st Cir. 1997) Mar. 4, 1997

Before Selya, Circuit Judge, Cyr, Senior Circuit Judge, and Lynch, Circuit Judge.

Per Curiam.

Pursuant to a written plea agreement, defendant pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) (1). In exchange for the plea, the government moved to withdraw an information charging prior offenses under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (1) (effectively recommending that the Act not be applied); offered no opposition to a sentencing decrease for defendant's acceptance of responsibility; and recommended a sentence at the low end of the applicable range. The court accepted the recommendation as to the Armed Career Criminal Act, and decreased defendant's range three levels for acceptance of responsibility. However, the court also increased the range by four levels under USSG § 2K2.1(b) (5), and sentenced defendant (within the applicable range) to 120 months imprisonment, the statutory maximum for the offense.

Defendant now appeals from the sentence. His appellate counsel has submitted in Anders brief and a motion to withdraw, asserting that there is no meritorious ground for appeal, but suggesting that defendant may wish to challenge the district court's application of USSG § 2K2.1(b) (5). See Anders v. California, 386 U.S. 738, 744 (1967); Loc.R. 46.4(a) (4). Although counsel notified defendant of his right to file a supplemental brief, defendant has not filed a brief, and the time for filing has passed.

After a careful review of the record, we agree that there is no meritorious ground for appeal. The plea proceedings substantially conformed to the requirements of Fed. R. Crim. P. 11, and we apprehend no error at sentencing. We agree with counsel that there is no support in the case law for challenging the district court's application of USSG § 2K2.1(b) (5) to the facts presented in this case.

Appellant's conviction and sentence are summarily affirmed; counsel's motion to withdraw is granted.