
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1678                               JOSE IVAN MONTANEZ-ANAYA,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                              Cyr, Senior Circuit Judge,                                   ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Jose Montanez-Anaya 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.                                 ____________________                                    June 20, 1997                                 ____________________                 Per  Curiam.    Convicted  on drug  charges,  Jose  Ivan                 ___________            Montanez-Anaya   appeals  a  district   court  judgment  that            summarily dismissed  his motion to vacate  his sentence under            28  U.S.C.    2255.    Appellant maintains  that  his defense            counsel rendered  ineffective assistance  by failing to  have            appellant  testify  in  support  of  his  claim  for a  minor            participant   adjustment  under  U.S.S.G.   3B1.2(b)  and  by            failing to  seek  a departure  under U.S.S.G.   5H1.4 on  the            ground  that appellant has  the human  immunodeficiency virus            (HIV).1                  1                 This court  has thoroughly  reviewed the record  and the            parties' briefs on  appeal.  Although the  district court did            not expressly  address these claims, we agree  that they were            properly dismissed.  The  testimony that appellant might have            offered  at  sentencing  does  not  show  that  there   is  a            reasonable probability  that he  would have received  a minor            participant adjustment  had he testified.   Moreover, none of            the  cases that  appellant has  cited support  his contention                                            ____________________               1In relevant part,  5H1.4 provides that,               1                 Physical  condition ... is  not ordinarily relevant                 in determining whether a sentence should be outside                 the  applicable  guideline   range.    However,  an                 extraordinary  physical impairment may  be a reason                 to impose a sentence below the applicable guideline                 range;  e.g., in  the  case of  a seriously  infirm                         ____                 defendant, home  detention may be  as efficient as,                 and less costly than, imprisonment.                                         -2-            that he was entitled to this adjustment as a  matter of law.2                                                                        2            Defense  counsel did not  render constitutionally ineffective            assistance in failing to have appellant testify in support of            his request for a minor participant adjustment.                   We further discern no error in defense counsel's failure            to seek a  5H1.4 departure.  Having  AIDS or being HIV+ alone            will not support  such a departure  absent evidence that  the            defendant's  condition  has  resulted  in  an  "extraordinary            physical impairment."  See, e.g., United States v. Rabins, 63                                   ___  ____  _____________    ______            F.3d  721, 728 (8th Cir. 1995), cert. denied, 116 S. Ct. 1031                                            _____ ______            (1996); United  States  v. Woody,  55  F.3d 1257,  1275  (7th                    ______________     _____            Cir.),  cert. denied, 116 S. Ct. 234 (1995); United States v.                    _____ ______                         _____________            Thomas,  49 F.3d 253, 261  (6th Cir. 1995);  United States v.            ______                                       _____________            Streat,  893 F. Supp. 754,  756 (N.D. Ohio  1995).  Appellant            ______            alleged  no   facts  to  suggest  that   his  condition  even            approaches this level of impairment.3  Defense counsel cannot                                                3            be faulted for failing to raise an insubstantial claim.  See,                                                                     ___            e.g., United States v. Acha, 910 F.2d 28, 32 (1st Cir. 1990).            ____  _____________    ____                                            ____________________               2To the  contrary, role in the  offense determinations are               2            fact-bound.   See United States v. Ruiz-Del Valle, 8 F.3d 98,                          ___ _____________    ______________            104 (1st Cir.  1993).   Accord United States  v. Garvey,  905                                    ______ _____________     ______            F.2d  1144, 1146 (8th Cir.  1990); United States v. Gallegos,                                               _____________    ________            868  F.2d  711,  713  (5th   Cir.  1989);  United  States  v.                                                       ______________            Buenrostro, 868 F.2d 135, 137 (5th Cir.  1989), cert. denied,            __________                                      _____ ______            495 U.S. 923 (1990).               3Appellant's  objections to the  Magistrate Judge's report               3            indicate that he is  not physically ill, but rather  seeks to            be released  to  avoid  the  hardships that  may  attend  HIV            sufferers in prison.   Unfortunately for appellant, this does            not provide a basis for a  5H1.4 departure.                                         -3-            Accordingly, the judgment of the district court is affirmed.                                                               ________                                         -4-
