April 5, 1996 [NOT FOR PUBLICATION]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, United States Attorney, Jose A. Quiles Espinosa,
Senior Litigation Counsel, and Warren Vazquez, Assistant U.S.
Attorney, on brief for appellee.
Per Curiam. Petitioner challenges the denial of a
motion under 28 U.S.C. 2255 to vacate or correct his
sentence. We affirm.
Petitioner was convicted by a jury, along with his
codefendants, of conspiring to possess, and possession of,
cocaine with intent to distribute in violation of 21 U.S.C.
841(a)(1), 846. A charge of use of a firearm in relation
to a drug offense under 21 U.S.C. 924(c)(1), was dismissed
by the court for insufficient evidence, and a judgment of
acquittal entered thereon under Fed. R. Crim. P. 29.
Petitioner's conviction and sentence (to 95 months'
imprisonment) were affirmed on appeal. United States v.
Torres-Maldonado, 14 F.3d 95, 99, 103-05 (1st Cir.), cert.
denied, 115 S. Ct. 193 (1994).
The focus of petitioner's 2255 attack is a two
level enhancement of his sentence for possession of a firearm
in connection with a drug offense under U.S.S.G.
2D1.1(b)(1). (1) He argues that his counsel rendered
ineffective assistance by failing to object, or failing to
support an objection, to the sentencing increase in light of
his acquittal of the firearms charge under 18 U.S.C.
924(c)(1). The claim is belied by the record which shows
that counsel made a detailed objection at the sentencing
hearing, supported by reasoned argument. The sentencing
enhancement was imposed over this objection because the court
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found the facts sufficient to satisfy the lesser burden of
proof required for the enhancement, in that petitioner could
have reasonably foreseen his accomplice's possession of a
weapon, and there was sufficient evidence connecting the drug
offenses to weapons found at the scene. As to counsel's
failure to renew the objection on appeal, petitioner offers
no reason to suspect that this was other than a deliberate
strategic decision, nor that he reasonably could have
expected to succeed in an appellate challenge to the trial
court's fact-based determination. 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 needed to sustain a
claim of ineffective assistance of counsel). We thus see no
"clear error" in the district court's rejection of
petitioner's ineffective assistance of counsel claim on the
basis of the record facts. See id. at 53.
(2) Petitioner argues that because two co-
defendants won reversals on appeal of their firearms
convictions under 18 U.S.C. 924(c)(1), the sentence
enhancement petitioner received "as a result of their
convictions in the district court should be vacated."
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Apprehending no basis for the connection petitioner has
drawn, we reject this contention.
(3) Petitioner argues in a supplement to his
brief that the sentence enhancement should be set aside in
light of the Supreme Court's decision in Bailey 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 collateral proceeding, because the decision
does not support, but undermines petitioner's argument. In
Bailey the Court defined the word "use" in 18 U.S.C.
924(c)(1), as requiring proof of "active employment" of the
weapon to sustain a conviction. 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). Id. at 508; see
also United States v. Gary, 74 F.3d 304, 317 n.11 (1st Cir.
1996) (explaining that Bailey recognizes that the sentencing
guidelines may provide enhancements based on mere
possession).
Lastly, the district court did not err in disposing
of this motion without an evidentiary hearing as petitioner
offered no reason it could not be fairly and effectively
"heard" on the papers. See United States v. McGill, 11 F.3d
223, 225-26 (1st Cir. 1993).
Affirmed.
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