                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-1550
                                    ___________

Lawrence Fay LaRoche,                    *
                                         *
            Appellant,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of South Dakota.
United States of America,                *
                                         * [UNPUBLISHED]
            Appellee.                    *
                                    ___________

                            Submitted: March 29, 2000
                                Filed: April 5, 2000
                                    ___________

Before LOKEN, FAGG, and HANSEN, Circuit Judges.
                           ___________

PER CURIAM.

      Lawrence Fay LaRoche appeals the district court’s1 denial of his 28 U.S.C.
§ 2255 motion alleging ineffective assistance of trial counsel. For the reasons
discussed below, we affirm.

      LaRoche pleaded guilty to aggravated sexual abuse of a child under the age of
twelve, in violation of 18 U.S.C. §§ 1153 and 2241(c). The presentence report (PSR)


      1
        The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
recommended that LaRoche receive a four-level enhancement under U.S. Sentencing
Guidelines Manual § 2A3.1(b)(1) (1994) because he had used force or threats to
commit the offense. LaRoche’s counsel objected to the enhancement and to paragraphs
four and five of the PSR, which set forth facts in support of the enhancement. At
sentencing, LaRoche’s counsel and counsel for the government declined the district
court’s invitation to present evidence, and the court overruled the objections and
sentenced LaRoche to 235 months imprisonment and five years supervised release. On
appeal, we affirmed the application of the enhancement on the basis that it was
supported by the unobjected-to facts set forth in paragraphs six, seven, and ten of the
PSR. See United States v. LaRoche, 83 F.3d 958, 959 (8th Cir. 1996) (per curiam).

       LaRoche subsequently filed an amended section 2255 motion in the district
court, alleging that his trial counsel had performed deficiently by failing to object to
those paragraphs, and that he would not have received the enhancement but for
counsel’s failure to object, because the government had agreed not to present any
evidence as to use of force. The court denied his motion without an evidentiary
hearing, concluding that he had failed to demonstrate prejudice resulting from his
counsel’s deficient performance. LaRoche appeals.

       We conclude that, had LaRoche’s trial counsel objected to the facts set forth in
paragraphs six, seven, and ten of the PSR, the plea agreement would have allowed the
government to present rebuttal evidence regarding use of force. In the agreement, the
government “reserve[d] the right to rebut or clarify matters raised by the defendant in
mitigation of his sentence, if [it] deem[ed] same to be misleading.” It appears that the
government would have been able to supply the district court with reports containing
the victim’s statements, testimony by the individuals who had prepared those reports,
or testimony by the probation officer who summarized those reports in the PSR, and
that the district court could have properly relied on this evidence. See U.S. Sentencing
Guidelines Manual § 6A1.3(a), p.s. (1994); United States v. Drapeau, 121 F.3d 344,
351 (8th Cir. 1997) (district court may consider hearsay at sentencing without regard

                                          -2-
to its admissibility under rules of evidence, so long as it has sufficient indicia of
reliability). Thus, LaRoche has failed to show prejudice resulting from his trial
counsel’s allegedly deficient performance. See United States v. Apfel, 97 F.3d 1074,
1077 (8th Cir. 1996) (rejecting ineffective-assistance claim for lack of prejudice where
defendant alleged his trial counsel failed to object to fact which resulted in enhanced
sentence, because defendant did not show reasonable probability that government
would have been unable to prove fact, had it been disputed).

      Accordingly, we affirm the judgment of the district court.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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