[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1707
AMADOR IRIZARRY-SANABRIA,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
Before
Torruella, Chief Judge,
Boudin and Lynch, Circuit Judges.
Amador Irizarry-Sanabria on brief pro se.
Guillermo Gil, United States Attorney, Nelson Perez-Sosa,
Assistant United States Attorney, and Jose A. Quiles-Espinosa, Senior
Litigation Counsel, on brief for appellee.
November 18, 1996
Per Curiam. Amador Irizarry-Sanabria requests a
certificate of appealability, see 28 U.S.C. 2253(c)(2),
from this court to appeal the district court's denial of his
motion filed under 28 U.S.C. 2255. We grant the request,
but affirm the judgment of the district court for the
following reasons. With respect to Irizarry's
contention that he was entitled to be present at
resentencing, we conclude that the error, if any, was
harmless. Irizarry's current sentence of 121 months
imprisonment is the lowest possible under the guidelines as
recalculated by the district court; that is, 121 months is
the bottom of the sentencing range with the two-level
increase in Irizarry's base offense level. The district
court made this increase pursuant to U.S.S.G. 2D1.1(b)(1).
This section states that "[i]f a dangerous weapon
(including a firearm) was possessed, increase by 2 levels."
The commentary clarifies that "[t]he adjustment should be
applied if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense."
2D1.1 comment n.3 (emphasis added). The facts as recited
in our opinion on direct appeal establish that at the second
meeting of the conspiracy members, the confidential informant
told the group that he wanted a gun if he was to go and pick
up the marijuana by himself. United States v. Andujar, 49
F.3d 16, 19 (1st Cir. 1995). Irizarry then left the house at
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which the meeting was being held and returned soon thereafter
with the gun in question, which he gave to the informant.
Id.
Irizarry does not dispute these facts on this
appeal. Given that he procured the gun at the request of the
person responsible for picking up the drugs so that this
person could have the gun for protection during the pick-up,
the district court could not have found it "clearly
improbable" that the gun was connected to the offense. Thus,
the court did not have the discretion not to apply
2D1.1(b)(1) and it could not have sentenced Irizarry to a
term of imprisonment lower than 121 months. In these
circumstances, any error in failing to hold a sentencing
hearing was harmless.
As for the two other grounds raised by Irizarry in
his 2255 motion, we affirm the district court's rejection
of them for the reasons stated in its Opinion and Order,
dated April 26, 1996.
The judgment of the district court is affirmed.
TORRUELLA, Chief Judge (dissenting). I w o u l d
remand for resentencing.
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