Montanez-Anaya v. United States ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 96-1678



                              JOSE IVAN MONTANEZ-ANAYA,



                                Plaintiff, Appellant,



                                          v.



                              UNITED STATES OF AMERICA,



                                 Defendant, Appellee.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                    [Hon. Hector M. Laffitte, U.S. District Judge]
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                                        Before



                                 Selya, Circuit Judge,
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                              Cyr, Senior Circuit Judge,
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                              and Lynch, Circuit Judge.
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            Jose Montanez-Anaya on brief pro se.
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            Guillermo  Gil,   United  States   Attorney,  Nelson   Perez-Sosa,
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        Assistant United States Attorney,  and Jose A. Quiles-Espinosa, Senior
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        Litigation Counsel, on brief for appellee.





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                                    June 20, 1997

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                 Per  Curiam.    Convicted  on drug  charges,  Jose  Ivan
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            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
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                 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










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               1In relevant part,  5H1.4 provides that,
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                 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
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                 defendant, home  detention may be  as efficient as,

                 and less costly than, imprisonment.



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            that he was entitled to this adjustment as a  matter of law.2
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            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
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            F.3d  721, 728 (8th Cir. 1995), cert. denied, 116 S. Ct. 1031
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            (1996); United  States  v. Woody,  55  F.3d 1257,  1275  (7th
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            Cir.),  cert. denied, 116 S. Ct. 234 (1995); United States v.
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            Thomas,  49 F.3d 253, 261  (6th Cir. 1995);  United States v.
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            Streat,  893 F. Supp. 754,  756 (N.D. Ohio  1995).  Appellant
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            alleged  no   facts  to  suggest  that   his  condition  even



            approaches this level of impairment.3  Defense counsel cannot
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            be faulted for failing to raise an insubstantial claim.  See,
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            e.g., United States v. Acha, 910 F.2d 28, 32 (1st Cir. 1990).
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               2To the  contrary, role in the  offense determinations are
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            fact-bound.   See United States v. Ruiz-Del Valle, 8 F.3d 98,
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            104 (1st Cir.  1993).   Accord United States  v. Garvey,  905
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            F.2d  1144, 1146 (8th Cir.  1990); United States v. Gallegos,
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            868  F.2d  711,  713  (5th   Cir.  1989);  United  States  v.
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            Buenrostro, 868 F.2d 135, 137 (5th Cir.  1989), cert. denied,
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            495 U.S. 923 (1990).



               3Appellant's  objections to the  Magistrate Judge's report
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            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.



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            Accordingly, the judgment of the district court is affirmed.
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