
USCA1 Opinion

	




        April 5, 1996           [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1868                                  TEDDY LEON-AYALA,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                         FOR THE DISTRICT OF PUERTO RICO                 [Hon. Raymond L. Acosta, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                 ____________________            Teddy Leon-Ayala on brief pro se.            ________________            Guillermo Gil,   United States Attorney,  Jose A. Quiles Espinosa,            _____________                             _______________________        Senior   Litigation  Counsel,  and   Warren  Vazquez,  Assistant  U.S.                                             _______________        Attorney, on brief for appellee.                                 ____________________                                 ____________________                      Per Curiam.  Petitioner  challenges the denial of a                      __________            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.                                                        _____________            Torres-Maldonado, 14  F.3d 95,  99, 103-05 (1st  Cir.), cert.            ________________                                        _____            denied, 115 S. Ct. 193 (1994).            ______                      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                                         -2-            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-                                               ___ _____________    _____            Encarnacion, 914 F.2d 20, 24 (1st Cir. 1990) (explaining that            ___________            a sentencing court's assessment of the factual record will be            set  aside only  if "clearly  erroneous"), cert.  denied, 499                                                       _____________            U.S. 977 (1991); see also Lema v. United States, 987 F.2d 48,                             ________ ____    _____________            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.                                        ___ ___                      (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                                                                    _____            convictions  in  the  district  court  should  be   vacated."                                         -3-            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                                                        ______     ______            States, 116 S. Ct. 501 (1995), decided during the pendency of            ______            this appeal.  We need not decide whether Bailey retroactively                                                     ______            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.               ______            924(c)(1), as  requiring proof of "active  employment" of the            weapon to sustain a conviction.   Id. at 505, 508.  The Court                                              ___            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                                                         ___          ___            also United States v. Gary, 74  F.3d 304, 317 n.11 (1st  Cir.            ____ _____________    ____            1996) (explaining that Bailey recognizes that the  sentencing                                   ______            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                                    ___ _____________     ______            223, 225-26 (1st Cir. 1993).                      Affirmed.                      ________                                         -4-
