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[NOT FOR PUBLICATION]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,
_____________
Senior

Litigation

United States Attorney,

Counsel,

and

Attorney, on brief for appellee.

Jose A. Quiles Espino

_____________________

Warren Vazquez,
_______________

Assistant

____________________

____________________

Per Curiam.
__________

Petitioner

challenges the denial of a

motion

under 28

sentence.

U.S.C.

2255

to

codefendants, of

conspiring to

his

a drug offense under 21 U.S.C.

by

the court

for insufficient

Petitioner's

imprisonment)

thereon

conviction

and

were affirmed

Torres-Maldonado, 14
________________

F.3d 95,

denied, 115 S. Ct. 193 (1994).

______

924(c)(1), was dismissed

Fed.

sentence

on

firearm in relation

evidence, and a

under

of,

violation of 21 U.S.C.

A charge of use of a

to

entered

a jury, along with his

possess, and possession

with intent to distribute in

841(a)(1), 846.

acquittal

correct

We affirm.

Petitioner was convicted by

cocaine

vacate or

appeal.

judgment of

R.

Crim.

(to

95

P.

months'

United States
_____________

99, 103-05 (1st

29.

v.

Cir.), cert.
_____

The focus

of petitioner's

2255 attack is

a two

level enhancement of his sentence for possession of a firearm

in

connection

with

2D1.1(b)(1).

his

acquittal

The

of the

under

U.S.S.G.

He argues that his counsel rendered

by failing

firearms

claim is

counsel made

hearing,

offense

to object, or

failing to

an objection, to the sentencing increase in light of

924(c)(1).

that

drug

(1)

ineffective assistance

support

supported by

charge

belied by the

under 18

record which

detailed objection

reasoned

U.S.C.

argument.

shows

at the

sentencing

The

sentencing

enhancement was imposed over this objection because the court

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found the facts

sufficient to satisfy

proof required for the

have

the lesser burden

of

enhancement, in that petitioner could

reasonably foreseen

his

accomplice's possession

of a

weapon, and there was sufficient evidence connecting the drug

offenses

failure to

no

to weapons

found at

the scene.

renew the objection on

reason to suspect that

As

to counsel's

appeal, petitioner offers

this was other

than a deliberate

strategic

decision,

expected to succeed in

nor

that

an

he

reasonably

could

appellate challenge to

court's fact-based determination.

have

the trial

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

claim

"clear

needed to sustain a

of ineffective assistance of counsel).

error"

in

the

district

petitioner's ineffective assistance

basis of the record facts.

(2)

Petitioner

court's

We thus see no

rejection

of counsel claim

of

on the

See id. at 53.

___ ___

argues

that

because

two

co-

defendants

won

reversals

convictions

under

enhancement

petitioner

convictions

in

the

18

on

appeal

U.S.C.

924(c)(1),

received

district

-3-

of

"as

court

their

firearms

the

sentence

result

should

be

of

their
_____

vacated."

Apprehending

no

basis

for

the connection

petitioner

has

supplement to

his

drawn, we reject this contention.

(3)

Petitioner

brief that the

light of

argues

in a

sentence enhancement should

the Supreme

Court's decision

be set aside

in Bailey
______

in

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

does not

Bailey
______

collateral proceeding, because the

support, but undermines petitioner's

the Court

924(c)(1), as

defined

the word

"use"

requiring proof of "active

weapon to sustain a conviction.

decision

argument.

in 18

In

U.S.C.

employment" of the

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).

also United States v. Gary, 74

____ _____________
____

Id. at
___

F.3d 304, 317 n.11 (1st

1996) (explaining that Bailey recognizes that the

______

guidelines

may

provide

508; see
___

enhancements

based

Cir.

sentencing

on

mere

possession).

Lastly, the district court did not err in disposing

of this

motion without an evidentiary

offered no

reason it

"heard" on the papers.

could

not be

hearing as petitioner

fairly and

See United States v.

___ _____________

223, 225-26 (1st Cir. 1993).

effectively

McGill, 11 F.3d
______

Affirmed.
________

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