
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1379                                 JOSE VENTURA-RAMOS,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ____________________            Jose Ventura Ramos on brief pro se.            __________________            Sheldon Whitehouse,  United States  Attorney,  Margaret E.  Curran            __________________                             ___________________        and  Lawrence D. Gaynor,  Assistant United States  Attorneys, on brief             __________________        for appellee.                                 ____________________                                  November 30, 1994                                 ____________________                 Per  Curiam.   Jose Ventura-Ramos  appeals the  district                 ___________            court's  judgment denying  his motion  filed  pursuant to  28            U.S.C.   2255.   He presses none of the claims  raised in the            court  below.   At best,  he  has reconfigured  one of  those            claims.   In the  district court, he  claimed that  he should            have  received a four level  downward adjustment as a minimal            participant in the offenses of conviction, U.S.S.G.  3B1.2(a)            (Nov.  1991), and he  received ineffective assistance  by his            trial counsel,  who failed  to ask for  this adjustment.   On            appeal,  he now  claims that  he should  have received  a two            level downward  adjustment as a  minor participant,  U.S.S.G.             3B1.2(b) (Nov. 1991), and he received ineffective assistance            of counsel,  not only from  his trial counsel, who  failed to            ask for this adjustment, but also from his appellate counsel,            who  failed to  raise this  issue on his  direct appeal.   We            affirm.                 We have repeatedly stated that we will not review claims            not raised below.  See, e.g., United States v. Lilly, 13 F.3d                               _________  _____________    _____            15, 17-18 (1st Cir. 1994).  Even were we to construe Ventura-            Ramos' reconfigured claim as  having been encompassed  within            the claim  raised below,  it  avails appellant  nothing.   He            alleges that  he was a  minor participant in the  offenses of            conviction  based  on   his  claims  of  mere   presence  and            willingness  to allow others to  use his apartment to conduct            the drug sale.  Those  claims are refuted by the evidence  at            trial   concerning  Ventura-Ramos'   role  in   the  offense,            recounted  in  our opinion  disposing  of  appellant's direct            appeal, United States v. Ventura-Ramos, No. 92-1434, slip op.                    _____________    _____________            at 2-3 (1st Cir. Nov.  13, 1992 (unpublished per curiam), and            by the statements of the  district court at sentencing and in            the course  of disposing  of the instant    2255  motion that            Ventura-Ramos  had a leadership role in the drug distribution            conspiracy.                 No  defendant  is automatically  entitled to  a downward            adjustment  as a  minor participant,  even  if the  defendant                                                  ________            happens to be less culpable than his or her co-defendants - a            claim  Ventura-Ramos urges  here but, as  pointed out  in the            preceding paragraph,  is refuted by  the record.   See United                                                               ___ ______            States v. Brandon, 17 F.3d 409, 460 (1st Cir.), cert. denied,            ______    _______                               ____________            115 S. Ct.  80, 81 (1994).  A  district court's determination            of  a defendant's  role  in  the offense  is  subject to  the            clearly erroneous  standard.   Id.  There  was no  such error                                           ___            here.  Further,  counsel's failure to raise  meritless issues            cannot  constitute ineffective assistance of counsel.  United                                                                   ______            States v. Victoria, 876 F.2d 1009, 1013 (1st Cir. 1989).            ______    ________                 Affirmed.                 _________                                         -3-
