[NOT FOR PUBLICATION]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at 2-3 (1st Cir. Nov. 13, 1992 (unpublished per curiam), and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-