
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1707                              AMADOR IRIZARRY-SANABRIA,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jose Antonio Fuste, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Boudin and Lynch, Circuit Judges.                                            ______________                                 ____________________            Amador Irizarry-Sanabria on brief pro se.            ________________________            Guillermo  Gil,   United  States   Attorney,  Nelson   Perez-Sosa,            ______________                                ___________________        Assistant United States Attorney,  and Jose A. Quiles-Espinosa, Senior                                               _______________________        Litigation Counsel, on brief for appellee.                                 ____________________                                  November 18, 1996                                 ____________________                      Per  Curiam.   Amador Irizarry-Sanabria  requests a                      ___________            certificate of  appealability,  see 28  U.S.C.    2253(c)(2),                                            ___            from  this court to appeal the district court's denial of his            motion filed  under 28 U.S.C.   2255.   We grant the request,            but  affirm  the  judgment  of the  district  court  for  the            following reasons.            With   respect  to   Irizarry's            contention   that  he   was   entitled  to   be  present   at            resentencing,  we  conclude  that  the  error,  if  any,  was            harmless.     Irizarry's  current   sentence  of  121  months            imprisonment is  the lowest possible under  the guidelines as            recalculated  by the district  court; that is,  121 months is            the  bottom  of  the  sentencing  range  with  the  two-level            increase  in Irizarry's  base  offense level.   The  district            court made this increase pursuant to U.S.S.G.   2D1.1(b)(1).                      This section states  that "[i]f a dangerous  weapon            (including a  firearm) was possessed, increase  by 2 levels."            The  commentary clarifies  that  "[t]he adjustment  should be                                                                ______            applied  if the  weapon  was present,  unless  it is  clearly                                                                  _______            improbable that  the weapon was connected  with the offense."            __________              2D1.1 comment n.3  (emphasis added).  The facts  as recited            in  our opinion on direct appeal establish that at the second            meeting of the conspiracy members, the confidential informant            told the group that he wanted a gun if  he was to go and pick            up  the marijuana by himself.   United States  v. Andujar, 49                                            _____________     _______            F.3d 16, 19 (1st Cir. 1995).  Irizarry then left the house at                                         -2-            which the meeting was being held and returned soon thereafter            with the gun  in question,  which he gave  to the  informant.            Id.            ___                      Irizarry does  not  dispute  these  facts  on  this            appeal.  Given that he procured the gun at the request of the            person  responsible for  picking  up the  drugs so  that this            person could have  the gun for protection during the pick-up,            the  district   court  could  not  have   found  it  "clearly            improbable" that the gun was connected to the offense.  Thus,            the  court did  not  have  the  discretion  not  to  apply                               ___            2D1.1(b)(1) and  it could  not have sentenced  Irizarry to  a                                       ___            term  of  imprisonment  lower  than 121  months.    In  these            circumstances,  any error  in  failing to  hold a  sentencing            hearing was harmless.                      As for the two other grounds raised by  Irizarry in            his    2255 motion, we  affirm the district court's rejection            of  them for  the reasons  stated in  its Opinion  and Order,            dated April 26, 1996.                      The judgment of the district court is affirmed.                                                            ________                      TORRUELLA, Chief Judge (dissenting).  I   w o u l d            remand for resentencing.                                         -3-
