[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1678
JOSE IVAN MONTANEZ-ANAYA,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
Before
Selya, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.
Jose Montanez-Anaya 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.
June 20, 1997
Per Curiam. Convicted on drug charges, Jose Ivan
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
1
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
1In relevant part, 5H1.4 provides that,
1
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
defendant, home detention may be as efficient as,
and less costly than, imprisonment.
-2-
that he was entitled to this adjustment as a matter of law.2
2
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
F.3d 721, 728 (8th Cir. 1995), cert. denied, 116 S. Ct. 1031
(1996); United States v. Woody, 55 F.3d 1257, 1275 (7th
Cir.), cert. denied, 116 S. Ct. 234 (1995); United States v.
Thomas, 49 F.3d 253, 261 (6th Cir. 1995); United States v.
Streat, 893 F. Supp. 754, 756 (N.D. Ohio 1995). Appellant
alleged no facts to suggest that his condition even
approaches this level of impairment.3 Defense counsel cannot
3
be faulted for failing to raise an insubstantial claim. See,
e.g., United States v. Acha, 910 F.2d 28, 32 (1st Cir. 1990).
2To the contrary, role in the offense determinations are
2
fact-bound. See United States v. Ruiz-Del Valle, 8 F.3d 98,
104 (1st Cir. 1993). Accord United States v. Garvey, 905
F.2d 1144, 1146 (8th Cir. 1990); United States v. Gallegos,
868 F.2d 711, 713 (5th Cir. 1989); United States v.
Buenrostro, 868 F.2d 135, 137 (5th Cir. 1989), cert. denied,
495 U.S. 923 (1990).
3Appellant's objections to the Magistrate Judge's report
3
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.
-3-
Accordingly, the judgment of the district court is affirmed.
-4-