

                    [NOT FOR PUBLICATION]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-
