USCA1 Opinion

       [NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT]

                 United States Court of Appeals

                     For the First Circuit











No. 98-1827



                          UNITED STATES,



                            Appellee,



                                v.



           RAUL ANTONIO LOPEZ-COSME, a/k/a EL MEJICANO,

                  a/k/a LUIS-RAUL ANTONIO LOPEZ,



                      Defendant, Appellant.

                       ____________________



No. 98-1828



                          UNITED STATES,



                            Appellee,



                                v.



             ANDRES CAPELLAN-PEREZ, a/k/a "EL MAYOR"



                      Defendant, Appellant.







          APPEALS FROM THE UNITED STATES DISTRICT COURT



                 FOR THE DISTRICT OF PUERTO RICO



          [Hon. Jose Antonio Fuste, U.S. District Judge]







                              Before



                     Selya, Stahl and Lipez,

                        Circuit Judges.

                                

                                

                                

                                

                                

     Salvador Perez Mayol on brief for appellant Raul Antonio

Lopez-Cosme.

     Ignacio Fernandez de Lahongrais on brief for appellant Andres

Capellan-Perez.

     Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco,

Assistant United States Attorney, and Nelson Perez-Sosa, Assistant

United States Attorney, on brief for appellee.











September 10, 1999







                                

                                



































































  

            Per Curiam. In these two companion cases, appellants

  challenge their convictions and/or sentences imposed following

  their guilty pleas to conspiracy to distribute cocaine.  See 21

  U.S.C.  846.  We affirm.

            I.  Appeal No. 98-1827.

            Raul Antonio Lopez-Cosme challenges his sentence. 

  Contrary to his suggestion, the court's imposition of the five-

  year statutory mandatory minimum sentence pursuant to 21 U.S.C.

   841(b)(1)(B) did not constitute cruel and unusual punishment

  or violate a right to individualized sentencing under the

  Eighth Amendment.  See Harmelin v. Michigan, 501 U.S. 957

  (1991) (holding that sentence of life imprisonment without

  parole for possessing 672 grams of cocaine did not violate the

  Eighth Amendment's cruel and unusual punishment clause); United

  States v. Campusano, 947 F.2d 1, 3 (1st Cir. 1991) ("There is

  no constitutional right, in non-capital cases, to

  individualized sentencing.").  Lopez-Cosme has failed to

  demonstrate that the district court erred in holding him

  responsible for the amount of cocaine stipulated to in the plea

  agreement.  See generally United States v. Marrero-Rivera, 124

  F.3d 342, 354 (1st Cir. 1997); United States v. Sanchez-Barreto,

  93 F.3d 17, 25 (1st Cir. 1996), cert. denied, 519 U.S. 1068

  (1997).  Finally, he concedes, and we agree, that he is

  ineligible for relief under the "safety valve" provision of 18

  U.S.C.  3553(f) because of his criminal record. 

            Accordingly, the judgment is affirmed.  See  Loc. R.

  27.1.

            II.  Appeal No. 98-1828.

            Counsel for Andres Capellan-Perez has submitted an

  Anders brief and motion to withdraw representation, asserting

  that there are no meritorious issues to be raised on appeal. 

  See Anders v. California, 386 U.S. 738 (1967); Loc. R.

  46.4(a)(4).  Counsel also moves to withdraw his statement of

  issues.  Capellan-Perez has filed an "opposition" to the Anders

  brief in which he argues ineffective assistance of trial

  counsel.  

            We agree with counsel that there was no plain error

  in failing to apply the "safety valve" provision in 18 U.S.C.

   3553(f).  We have carefully reviewed the record and have

  found no non-frivolous issue.  Capellan-Perez's ineffective

  assistance of counsel argument is not properly raised on direct

  appeal.  See United States v. Mala, 7 F.3d 1058, 1063 (1st Cir.

  1993).

            Accordingly, the motion to withdraw representation is

  granted, and the judgment is affirmed.  Counsel's motion to

  withdraw his statement of issues is denied since we have

  considered the issue raised therein.  Our disposition of this

  appeal is without prejudice to Capellan-Perez raising his

  ineffective assistance of counsel argument in a 28 U.S.C. 

  2255 petition.  We express no opinion on the merits of any such

  argument should a timely  2255 petition be filed.

            Affirmed.