Leon-Ayala v. United States ( 1996 )

USCA1 Opinion

        April 5, 1996           [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 95-1868



                                  TEDDY LEON-AYALA,



                                Plaintiff, Appellant,



                                          v.



                              UNITED STATES OF AMERICA,



                                 Defendant, Appellee.





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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                         FOR THE DISTRICT OF PUERTO RICO



                 [Hon. Raymond L. Acosta, Senior U.S. District Judge]
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                                        Before



                                Torruella, Chief Judge,
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                            Selya and Cyr, Circuit Judges.
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            Teddy Leon-Ayala on brief pro se.
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            Guillermo Gil,   United States Attorney,  Jose A. Quiles Espinosa,
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        Senior   Litigation  Counsel,  and   Warren  Vazquez,  Assistant  U.S.
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        Attorney, on brief for appellee.





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                      Per Curiam.  Petitioner  challenges the denial of a
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            motion  under 28  U.S.C.    2255  to  vacate or  correct  his



            sentence.  We affirm.



                      Petitioner was convicted by  a jury, along with his



            codefendants, of  conspiring to  possess, and possession  of,



            cocaine  with intent to distribute in  violation of 21 U.S.C.



               841(a)(1), 846.  A charge of use of a  firearm in relation



            to  a drug offense under 21 U.S.C.   924(c)(1), was dismissed



            by  the court  for insufficient  evidence, and a  judgment of



            acquittal  entered  thereon  under   Fed.  R.  Crim.  P.  29.



            Petitioner's  conviction   and   sentence  (to   95   months'



            imprisonment)  were affirmed  on  appeal.   United States  v.
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            Torres-Maldonado, 14  F.3d 95,  99, 103-05 (1st  Cir.), cert.
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            denied, 115 S. Ct. 193 (1994).
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                      The focus  of petitioner's    2255 attack is  a two



            level enhancement of his sentence for possession of a firearm



            in  connection   with  a   drug  offense  under   U.S.S.G.



            2D1.1(b)(1).        (1)   He argues that his counsel rendered



            ineffective assistance  by failing  to object, or  failing to



            support  an objection, to the sentencing increase in light of



            his  acquittal  of the  firearms  charge  under 18  U.S.C.



            924(c)(1).  The  claim is  belied by the  record which  shows



            that  counsel made  a  detailed objection  at the  sentencing



            hearing,  supported by  reasoned  argument.   The  sentencing



            enhancement was imposed over this objection because the court







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            found the facts  sufficient to satisfy  the lesser burden  of



            proof required for the  enhancement, in that petitioner could



            have  reasonably foreseen  his  accomplice's possession  of a



            weapon, and there was sufficient evidence connecting the drug



            offenses  to weapons  found at  the scene.   As  to counsel's



            failure to  renew the objection on  appeal, petitioner offers



            no  reason to suspect that  this was other  than a deliberate



            strategic  decision,  nor  that  he   reasonably  could  have



            expected to succeed in  an  appellate challenge to  the trial



            court's fact-based determination.  See United States v. Vega-
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            Encarnacion, 914 F.2d 20, 24 (1st Cir. 1990) (explaining that
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            a sentencing court's assessment of the factual record will be



            set  aside only  if "clearly  erroneous"), cert.  denied, 499
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            U.S. 977 (1991); see also Lema v. United States, 987 F.2d 48,
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            51  (1st Cir. 1993) (explaining elements  needed to sustain a



            claim  of ineffective assistance of counsel).  We thus see no



            "clear   error"  in   the   district  court's   rejection  of



            petitioner's ineffective assistance  of counsel claim  on the



            basis of the record facts.  See id. at 53.
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                      (2)    Petitioner  argues   that  because  two  co-



            defendants  won   reversals  on  appeal  of   their  firearms



            convictions  under  18  U.S.C.      924(c)(1),  the  sentence



            enhancement  petitioner  received  "as  a  result   of  their
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            convictions  in  the  district  court  should  be   vacated."











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            Apprehending  no  basis  for  the connection  petitioner  has



            drawn, we reject this contention.



                       (3)   Petitioner  argues  in a  supplement to  his



            brief that the  sentence enhancement should  be set aside  in



            light of  the Supreme  Court's decision  in Bailey  v. United
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            States, 116 S. Ct. 501 (1995), decided during the pendency of
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            this appeal.  We need not decide whether Bailey retroactively
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            applies to this  collateral proceeding, because the  decision



            does not  support, but undermines petitioner's  argument.  In



            Bailey  the Court  defined  the word  "use"  in 18  U.S.C.
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            924(c)(1), as  requiring proof of "active  employment" of the



            weapon to sustain a conviction.   Id. at 505, 508.  The Court
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            expressly  distinguished the  statutory term  "use" from  the



            passive "possession" of a weapon which may trigger a sentence



            enhancement under U.S.S.G.    2D1.1(b)(1).   Id. at  508; see
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            also United States v. Gary, 74  F.3d 304, 317 n.11 (1st  Cir.
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            1996) (explaining that Bailey recognizes that the  sentencing
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            guidelines   may   provide   enhancements   based   on   mere



            possession).



                      Lastly, the district court did not err in disposing



            of this  motion without an evidentiary  hearing as petitioner



            offered no  reason it  could  not be  fairly and  effectively



            "heard" on the papers.  See United States v.  McGill, 11 F.3d
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            223, 225-26 (1st Cir. 1993).



                      Affirmed.
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