United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-1296

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Antonio Zamarripa, * * [UNPUBLISHED] Appellant. *

___________ Submitted: August 19, 1997 Filed: November 17, 1997

___________ Before McMILLIAN, BEAM, an d MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ PER CURIAM. Anthony Zamarripa and nine others were indicted for conspiracy to distribute, and t o possess with intent to distribute, more than one kilogram each of heroin an d methamphetamine. See 21 U.S.C. §§ 841(a)(1) and 846. After Zamarripa pleade d gui lty, the district court sentenced him to 180 months in prison and five year s su pervisedrelease. Zamarripa appeals both his conviction and his sentence. Hi s 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 bu t remand his case for resentencing.At Zam arripa & s insistence, he represented himself throughout the plea an d 1 se ntencing proceedings, and the district court appointed attorney John Garvey to ac t as advisory counsel. -2- We first address the issue raised in the Anders brief: whether the district court abused its discretion in denying Zamarripa & s motion to with draw his guilty plea. At the chan ge-of-plea

hearing, Zamarripa indicated he was pleading guilty of his own fre e will. He also stipulated that he had entered into a conspiracy to distribut e metham phetamine which had been in operation between December 1992 and Jun e 1995, a nd that on three occasions in February 1994, he had distribute d methamphetamine to a c onfidential informant. In support of his subsequent motion to withdraw his plea, Zamarripa professed his innocence of some of the con duct described in the presentence report (PSR), referred to certain sections of the Constitution, an d di scussed “prejudice” he had suffered in prior encounters with other courts. W e conclu de that the district court did not abuse its discretion in determining Zamarrip a failed to demonstrate a fair and just reason for withdrawing his pl ea. 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 r eason” 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 ineffecti ve-assistance arguments he 1 raises in his pro se brief should be brought in a 28 U.S.C. § 2255 proceeding where the record c an be appropriately developed. See United States v. Sanchez , 927 F.2d 376, 378 (8th Cir. 1991) (per curiam).
Turni ng to Zamarripa & s sentence, we first note the PSR recounted that th e amountof

methamphetamine Zamarripa sold to the confidential informant was 11. 5 gr ams. The PSR nonetheless recommended holding Zamarripa accountable for th e distributionof at least three to ten kilograms, which triggered a base offense level of 34 under the Sentencing Guidelines. See U.S. Sentencing Guidelines Manual-3-

§§ 2 D1.1(a)(3), (c)(3) (1995). The PSR further indicated that Zamarripa was les s culpa ble than most of his co-defendants, describing his role as that of an individua l distributor. In calculatinghis total offense level, however, the PSR added three levels pursuant to U. S. Sentencing Guidelines Manual § 3B1.1(b) (1995) for Zama rripa & s role
as a manageror supervisor. The PSR also subtracted three levels for Zamarripa’ s acce ptance of responsibility; calculated 18 criminal history points, resulting in a criminal history category of VI; and recommended a Guidelines sentencing range o f 262-327 months.

Zamar ripa

filed written objections to the PSR and argued at the sentencin g 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 th e government’s U.S. Sentencing Guidelines Manual § 5K1.1(1995) mo tion 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 an d how it arrived at the three-to-ten kilogram figure requires remand. See Fed. R. Crim. P. 32(c)(1) (if defendant objects to m atters contained in PSR, sentencing court is required to “make either a finding on the allegat ion or a determination that no finding is necessary because the controverted matter wi ll 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 Zam arripa & s co-defendants; finding evidence of 3-10 kilogram drug quantity to o unc ertain to sustain base offense level of 34); United States v. Logan , 121 F.3d 1172, 1178-79 (8 th 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-4-

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).
Acc ordingly, we remand this matter to the district court for proceeding s co nsistent with this opinion. Finally, we deny counsel & s motion to withdraw and th e numerous pro se motions Zamarripa has filed on appeal. A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.