       [NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

          United States Court of Appeals
                      For the First Circuit
No. 01-1126

                     JOSÉ A. RIVERO-CABAÑAS,
                      Petitioner, Appellant,

                                v.

                    UNITED STATES OF AMERICA,
                       Respondent, Appellee.


No. 01-1215

                      JULIO FIGUEROA-ROMERO,
                      Petitioner, Appellant,
                                v.

                    UNITED STATES OF AMERICA,
                      Respondent, Appellee.


          APPEALS FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO
        [Hon. Juan M. Pérez-Giménez, U.S. District Judge]


                             Before
                   Torruella, Lynch and Lipez,
                         Circuit Judges.


     Martin G. Weinberg, with whom Oteri, Weinberg & Lawson was on
brief, for appellant Rivero-Cabañas.
     Kenneth J. Fishman, with whom Julie A. Hamon and Fishman,
Ankner & Horstmann were on brief, for appellant Figueroa-Romero.
     Kimberly Homan, with whom Sheketoff & Homan was on brief or
appellants.
     Thomas F. Klumper, Assistant United States Attorney, with whom
Guillermo Gil, United States Attorney, and Jorge E. Vega-Pacheco,
Assistant United States Attorney, Chief, Criminal Division, were
on brief, for appellee.
September 9, 2002




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          Per Curiam.     Appellants José A. Rivero-Cabañas and Julio

Figueroa-Romero challenge the district court's dismissal of their

motions brought pursuant to 28 U.S.C. § 2255.      Finding no error, we

affirm.

                                    I.

          In    April   1994,   Rivero-Cabañas,   Figueroa-Romero,   and

fifteen co-defendants were named in a ten-count indictment alleging
various drug related offenses.     Rivero-Cabañas and Figueroa-Romero

were charged in six counts of the indictment.1           Roughly a year

later, after initially pleading not guilty on all counts, both
appellants pleaded guilty to one count of conspiracy to possess
with   intent   to   distribute    cocaine,   pursuant   to   21   U.S.C.
§§ 841(a)(1) and 846 (Count One), and one count of aiding and

abetting the use and carrying of firearms during the commission of
a drug trafficking crime, pursuant to 18 U.S.C. § 924(c)(1) (Count




1
   The indictment charged them with: conspiracy to possess with
intent to distribute cocaine and marijuana, in violation of 21
U.S.C. §§ 846 and 841(a)(1) (Count One); attempting to import into
the United States from a place outside thereof approximately 3000
pounds of marijuana, in violation of 21 U.S.C. §§ 952, 960 and 963
and 18 U.S.C. § 2 (Count Three); use of a firearm in a drug related
offense, in violation of 18 U.S.C. § 924(c)(1) and 18 U.S.C. § 2
(Count Four); importation into the United States from a place
outside thereof approximately 629 kilograms of cocaine, in
violation of 21 U.S.C. §§ 952 and 960 and 18 U.S.C. § 2 (Count
Five); use of a firearm in a drug related offense, in violation of
18 U.S.C. § 924(c)(1) and 18 U.S.C. § 2 (Count Six); and possession
with intent to distribute approximately 629 kilograms (gross
weight) of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18
U.S.C. § 2 (Count Seven). In addition, Rivero-Cabañas was charged
with possession with intent to distribute cocaine, in violation of
21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count Two).

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Six). In exchange for these guilty pleas, the government agreed to

dismiss the remaining counts against them.

           On July 7, 1995, the district court sentenced both
appellants. Rivero-Cabañas was sentenced to a term of imprisonment

of 168 months as to Count One and sixty months as to Count Six,

with the terms to be served consecutively.         Figueroa-Romero was
sentenced to a term of imprisonment of 144 months as to Count One

and sixty months as to Count Six, also with the terms to be served

consecutively.    Appellants sought review on direct appeal.          On

appeal, Figueroa-Romero petitioned for and was denied appointed

counsel.    On May 21, 1997, this court affirmed the convictions.

See United States v. Figueroa-Romero, 114 F.3d 1170 (1st Cir. 1997)

(unpublished).
           In late 1999, appellants filed separate motions to vacate

their sentences under 28 U.S.C. § 2255.      The motions were referred

to magistrate judges, who both issued recommendations to deny
relief.     The   district   court,    adopting   the   recommendations,

dismissed appellants' cases.    This timely appeal followed.

                                  II.

           Appellants' § 2255 motions attack their guilty pleas on

Count Six of the indictment, charging a violation of 18 U.S.C.
§ 924.     Both appellants argue that they were denied effective
assistance of counsel inasmuch as: (1) their attorneys failed to

argue the correct legal standard applicable to aiding and abetting
liability under § 924(c)(1); and, (2) their attorneys did not

challenge the government's proffer at sentencing and failed to

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request an evidentiary hearing in order to compel the government to

establish that appellants satisfied a required element of the

offense.      In addition, Figueroa-Romero argues that he was denied
due process because he was not given court-appointed counsel for

his direct appeals.

              When faced with an appeal from the denial of a § 2255
motion, we review the district court's legal determinations de novo

and its factual findings for clear error.                     Familia-Consoro v.

United States, 160 F.3d 761, 764-65 (1st Cir. 1998).

                                         A.

              The Sixth Amendment guarantees criminal defendants the

right to effective assistance of counsel, Lema v. United States,
987   F.2d    48,    51   (1st   Cir.    1993),   which   includes      effective
representation during the plea process, Hill v. Lockhart, 474 U.S.

52, 56 (1985). In order for the appellants' ineffective assistance
of counsel claims to prevail, they must show that (1) considering
all   the     circumstances,     counsel's      performance      fell   below   an

objective standard of reasonableness, and (2) there is a reasonable
probability that, but for counsel's unprofessional error, the
result   of    the   proceedings        would   have   been    different.       See

Strickland v. Washington, 466 U.S. 668, 687 (1984).
              To satisfy the first prong, appellants must overcome a
"strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance."                 Id. at 689.   Thus,
the errors of counsel must be "so serious that counsel was not

functioning as the 'counsel' guaranteed the defendant by the Sixth

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Amendment."    Id. at 687.   "Tactical decisions, whether wise or

unwise, successful or unsuccessful, cannot ordinarily form the

basis of a claim of ineffective assistance."        United States v.
Ortiz-Oliveras, 717 F.2d 1, 3-4 (1st Cir. 1983).       And under the

second prong, even where unprofessional error during the plea

process is shown, no relief is available absent demonstration of a
"reasonable    probability   that,    but   for   counsel's   errors,

[appellants] would not have pleaded guilty and would have insisted

on going to trial."   Hill, 474 U.S. at 59.

          We are convinced that neither error nor prejudice can be

established on the facts here.        Appellants' various legal and

factual arguments boil down to the same basic contention: that the

facts which the appellants admitted were insufficient to support a
guilty plea for aiding and abetting the use and carrying of

firearms during the commission of a drug trafficking crime, under

§ 924(c)(1).   On the legal front, appellants complain that their
attorneys should have argued to the court that the knowledge

element necessary to support a conviction under § 924(c)(1) is that

of "practical certainty," see United States v. Torres-Maldonado, 14

F.3d 95, 103 (1st Cir. 1994), rather than a more lenient vicarious

liability standard, see Pinkerton v. United States, 328 U.S. 640,

645-48 (1946) (holding that a conspirator may be held vicariously

liable for a substantive crime committed by a co-conspirator if

that crime is reasonably foreseeable and committed in furtherance

of the conspiracy).   On the factual front, appellants argue that

the conduct to which they admitted did not satisfy the higher


                                -6-
standard and that their attorneys should have forced the government

to   adduce    proof   in   an   evidentiary   hearing    establishing   that

appellants knew to a practical certainty that their accomplices
would be using guns during the commission of the drug crimes.

              In this case, it would be academic for us to address the

question of whether the "practical certainty" or Pinkerton standard

should govern convictions under § 924(c)(1), as we think there were

good tactical reasons -- well within the range of acceptable

professional assistance -- for appellants' attorneys not to pursue

such arguments during the plea proceedings.                 In exchange for

appellants' guilty pleas on two counts in the indictment, the

government agreed to dismiss the remaining counts.              Appellants'

attorneys were quite successful in securing favorable plea bargains
for their clients.          A tactical decision not to jeopardize that

bargain is therefore entirely defensible.                Had the pleas been

withdrawn, the government would have been free to seek convictions
on all of the counts charged in the indictment.              And if proven,

those counts would have carried stiff additional penalties for the

appellants.

              As for the showing of prejudice, appellants have barely

alleged, much less provided proof, that absent their attorneys'

supposed errors they would have withdrawn their guilty pleas and

insisted on going to trial.           We therefore affirm the district

court's conclusion that no claim for ineffective assistance has

been shown.




                                      -7-
                                         B.

            Figueroa-Romero        claims      that     he    was   denied       his

constitutional rights of due process and effective assistance of

counsel when he was forced to proceed on direct appeal without the

assistance of counsel.        The record is clear that Figueroa-Romero

filed a motion with this Court requesting the appointment of

counsel after his request for the withdrawal of trial counsel had

been granted.         This Court informed Figueroa-Romero that he must

file a financial affidavit, as well as a motion to proceed in forma

pauperis with the district court, before seeking appointment of
counsel on appeal. Although Figueroa-Romero claims that he drafted

and filed the required documentation, no docket entry in the
district court confirms this.
            It is well settled that an indigent defendant shall not

be denied effective assistance of counsel on appeal.                   See Douglas

v. California, 372 U.S. 353, 355 (1963).              To that end, the Criminal
Justice Act provides for the appointment of counsel for a criminal

defendant    who       is   financially       unable     to   obtain     adequate
representation at any stage of the proceedings, including appeal.
See 18 U.S.C. § 3006A(a) & (c).          Although the Criminal Justice Act

requires the district court to conduct an "appropriate inquiry"
into the financial status of a defendant who seeks appointed
counsel,    id.   §    3006A(b),   the    applicant      bears   the    burden   of

persuading the court that he is financially unable to obtain
counsel, see United States v. Harris, 707 F.2d 653, 660 (2d Cir.

1983). Appellate courts employ the "clearly erroneous" standard in

                                      -8-
reviewing    the    trial    court's    determination         as    to     whether   an

applicant qualifies for counsel.             Id.

            The district court found that Figueroa-Romero failed to
comply with this Court's order to file in district court a motion

to proceed in forma pauperis prior to requesting appointed counsel.

We   find   no   basis     for   upsetting    the    district       court's   ruling.
Although    Figueroa-Romero        claims     that    he    filed    the    necessary

documents in district court, we only have his word and a copy of

what he claims he filed to prove that he did.                This is insufficient

to   establish     clear    error,   and     we    detect   no     other    basis    for

upsetting the district court's ruling on Figueroa-Romero's claim.

            Affirmed.




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