* Pursuant to 5TH CIR. R. 47.5 the Court has determined that this

opinion should not be published and is not precedent except under

the limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

No. 96-30748

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HILTON L. SMITH,

Defendant-Appellant.

________________________________________________

Appeal from the United States District Court 

for the Western District of Texas

(95-CR-10015-01)

________________________________________________

July 30, 1997

Before GARWOOD, PARKER and DENNIS, Circuit Judges.*

PER CURIAM:

Rebecca L. Hudsmith, the Federal Public Defender for the

Western and Middle Districts of Louisiana, and Wayne J. Blanchard,

Assistant Public Defender, seek to withdraw as attorneys for Hilton

L. Smith, a convicted participant and co-conspirator in a scheme to

defraud the federal government through redemption of Department of

Agriculture Food Coupons for cash and to launder the proceeds.
2

Pursuant to Anders v. California, 386 U.S. 738 (1967), Smith’s

attorneys filed a brief asserting that there were no nonfrivolous

issues for appeal and referred this Court to those matters in the

record that might arguably support an appeal. Smith filed a

response, raising various contentions that he believed supported an

appeal and requested appointment of replacement counsel. Finding

that there are no nonfrivolous issues for appeal, we grant Smith’s

attorneys’ motion to withdraw, deny Smith’s pro se motion for

appointment of replacement counsel, and dismiss his appeal as

frivolous.

After an independent review of Smith’s attorneys’ brief,

Smith’s responses, and the record, we discern no nonfrivolous issue

for appeal. First, Smith’s guilty plea was voluntary, taken in

accordance with the strictures of Rule 11 of the Federal Rules of

Criminal Procedure, and, as evidenced by the on-record colloquy

before the district court, presaged by detailed guidance regarding

his rights, potential punishments, and the ramifications of his

decision to plead guilty. No improper behavior by Smith’s attorney

or lack of comprehension on the part of Smith is evident from the

record. There is no basis for a nonfrivolous appeal on the

voluntariness of Smith’s guilty plea. Smith’s “substantial rights”

were not in any way diminished. United States v. Johnson, 1 F.3d

296, 298 (5th Cir. 1993) (en banc). Second, the amount of

restitution was correct, supported by the uncontested evidence
1 We do not reach Smith’s ineffective-assistance-of-counsel

claim at this time. See United States v. Gaytan, 74 F.3d 545, 557

(5th Cir) (citing United States v. Navejar, 963 F.2d 732, 735 (5th

Cir. 1992) (holding that ineffective assistance claims cannot be

reached on direct appeal if the claims were not raised before the

district court and the record is not sufficiently developed)),

cert. denied, 117 S.Ct. 77 (1996).

3

presented, and properly took into consideration the entire dollar

amount of the food stamps illegally redeemed for cash rather than

solely the net profits from the fraudulent scheme. In this regard,

any appeal on the amount of restitution ordered by the district

court is foreclosed by our opinion in United States v. Lewis, 104

F.3d 690, 692-93 (5th Cir. 1996), cert. denied, 117 S.Ct. 1451

(1997). The district court discounted the amount of restitution by

a figure representing the highest amount testified to have been

redeemed legally. Smith did not otherwise contest the percentage

of illegal cash redemption of food stamps. Finally, although Smith

objected to the two-level increase to his base offense level

pursuant to U.S.S.G. § 3B1.1, the Government presented sufficient

evidence at the sentencing hearing to establish the requisite

factual predicate to support the facts found in the Presentence

Report and to justify the two-level adjustment by a preponderance

of the evidence. United States v. Ayala, 47 F.3d 688, 690 (5th

Cir. 1995) (citing United States v. Ellwood, 999 F.2d 814, 817 (5th

Cir. 1993)). The evidence is overwhelming that the district court

decision to increase Smith’s offense level was not clearly

erroneous.1
4

Accordingly, we GRANT Smith’s attorneys’ motion to withdraw

from further responsibilities in his appeal, DENY Smith’s motion to

appoint replacement counsel, and DISMISS his appeal as frivolous.