United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-1296

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United States of America, *

 *

Appellee, *

 * Appeal from the United States

v. * District Court for the

 * Eastern District of Missouri.

Antonio Zamarripa, *

 * [UNPUBLISHED]

Appellant. *

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 Submitted: August 19, 1997

 Filed: November 17, 1997

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Before McMILLIAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

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PER CURIAM.

Anthony Zamarripa and nine others were indicted for conspiracy to distribute,

and to possess with intent to distribute, more than one kilogram each of heroin and

methamphetamine. See 21 U.S.C. §§ 841(a)(1) and 846. After Zamarripa pleaded

guilty, the district court sentenced him to 180 months in prison and five years

supervised release. Zamarripa appeals both his conviction and his sentence. His

counsel has tendered a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and

Zamarripa has filed two supplemental briefs. We affirm Zamarripa&s conviction but

remand his case for resentencing. 
 At Zamarripa&s insistence, he represented himself throughout the plea and

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sentencing proceedings, and the district court appointed attorney John Garvey to act

as advisory counsel.

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We first address the issue raised in the Anders brief: whether the district court

abused its discretion in denying Zamarripa&s motion to withdraw his guilty plea. At the

change-of-plea hearing, Zamarripa indicated he was pleading guilty of his own free

will. He also stipulated that he had entered into a conspiracy to distribute

methamphetamine which had been in operation between December 1992 and June

1995, and that on three occasions in February 1994, he had distributed

methamphetamine to a confidential informant. In support of his subsequent motion to

withdraw his plea, Zamarripa professed his innocence of some of the conduct described

in the presentence report (PSR), referred to certain sections of the Constitution, and

discussed “prejudice” he had suffered in prior encounters with other courts. We

conclude that the district court did not abuse its discretion in determining Zamarripa

failed to demonstrate a fair and just reason for withdrawing his plea. See Fed. R. Crim.

P. 32(e); United States v. Wicker, 80 F.3d 263, 266 (8th Cir. 1996) (defendant bears

burden of showing “fair and just reason” to withdraw his guilty plea); United States v.

Nichols, 986 F.2d 1199, 1201 (8th Cir. 1993) (standard of review). 

To the extent Zamarripa was counseled, the ineffective-assistance arguments he 1

raises in his pro se brief should be brought in a 28 U.S.C. § 2255 proceeding where the

record can be appropriately developed. See United States v. Sanchez, 927 F.2d 376,

378 (8th Cir. 1991) (per curiam).

 

Turning to Zamarripa&s sentence, we first note the PSR recounted that the

amount of methamphetamine Zamarripa sold to the confidential informant was 11.5

grams. The PSR nonetheless recommended holding Zamarripa accountable for the

distribution of at least three to ten kilograms, which triggered a base offense level of

34 under the Sentencing Guidelines. See U.S. Sentencing Guidelines Manual
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§§ 2D1.1(a)(3), (c)(3) (1995). The PSR further indicated that Zamarripa was less

culpable than most of his co-defendants, describing his role as that of an individual

distributor. In calculating his total offense level, however, the PSR added three levels

pursuant to U. S. Sentencing Guidelines Manual § 3B1.1(b) (1995) for Zamarripa&s role

as a manager or supervisor. The PSR also subtracted three levels for Zamarripa’s

acceptance of responsibility; calculated 18 criminal history points, resulting in a

criminal history category of VI; and recommended a Guidelines sentencing range of

262-327 months. 

Zamarripa filed written objections to the PSR and argued at the sentencing

hearing that the quantity of drugs attributed to him was incorrect, and that he did not

act as a manager or supervisor in the offense. The district court overruled these PSR

objections without specifically addressing them, indicating it was granting the

government’s U.S. Sentencing Guidelines Manual § 5K1.1(1995) motion and departing

downward from the Guidelines range.

We conclude the district court&s failure to address specifically Zamarripa&s

objection to the quantity of drugs attributed to him and how it arrived at the three-to-ten

kilogram figure requires remand. See Fed. R. Crim. P. 32(c)(1) (if defendant objects

to matters contained in PSR, sentencing court is required to “make either a finding on

the allegation or a determination that no finding is necessary because the controverted

matter will not be taken into account in, or will not affect, sentencing”); United States

v. Rodriguez, 112 F.3d 374, 376-77, 379 (8th Cir. 1997) (remanding for resentencing

of Zamarripa&s co-defendants; finding evidence of 3-10 kilogram drug quantity too

uncertain to sustain base offense level of 34); United States v. Logan, 121 F.3d 1172,

1178-79 (8th Cir. 1997) (same); United States v. Greene, 41 F.3d 383, 386 (8th Cir.

1994) (per curiam) (if defendant objects to PSR, sentencing court must make specific

finding “on the basis of evidence, and not the presentence report”). We conclude
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remand is also warranted because Zamarripa&s status as a distributor, by itself, did not

warrant a three-level aggravating role enhancement under section 3B1.1. See United

States v. Bryson, 110 F.3d 575, 584 (8th Cir. 1997). 

Accordingly, we remand this matter to the district court for proceedings

consistent with this opinion. Finally, we deny counsel&s motion to withdraw and the

numerous pro se motions Zamarripa has filed on appeal.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.