USCA1 Opinion

[NOT FOR PUBLICATION]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

Assistant United States Attorney,

Attorney,

Nelson
Perez-So
_________________

and Jose A. Quiles-Espinosa, Sen

_______________________

Litigation Counsel, on brief for appellee.

____________________

November 18, 1996

____________________

Per Curiam.
___________

Amador Irizarry-Sanabria

requests a

certificate of

from

affirm

under 28 U.S.C.

the

judgment

U.S.C.

contention

that

resentencing,

harmless.

we

2253(c)(2),

recalculated

bottom

With

respect

conclude

entitled

that

current

the

the

base

to

be

sentence

range

for

the

Irizarry's

present

error,

if

of

any,

121

at

was

months

the guidelines as

court; that is,

sentencing

in Irizarry's

court

to

the lowest possible under

by the district

of

We grant the request,

district

was

Irizarry's

imprisonment is

increase

he

2255.

of the

following reasons.

the

see 28
___

this court to appeal the district court's denial of his

motion filed

but

appealability,

with

offense level.

court made this increase pursuant to U.S.S.G.

121 months is

the

The

two-level

district

2D1.1(b)(1).

This section states

(including a

The

firearm) was possessed, increase

commentary clarifies

applied

if the

improbable that
__________

weapon

that

was present,

unless

(emphasis added).

weapon

by 2 levels."

"[t]he adjustment

the weapon was connected

2D1.1 comment n.3

in

that "[i]f a dangerous

should be
______

it is

clearly
_______

with the offense."

The facts

as recited

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

up

the marijuana by himself.

F.3d 16, 19 (1st Cir. 1995).

he was to go and pick

United States
_____________

v. Andujar, 49
_______

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

appeal.

person

not

dispute

these

facts

on

this

Given that he procured the gun at the request of the

responsible for

person could have

picking

up the

drugs so

that this

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.

the

court did

not
___

2D1.1(b)(1) and

term

of

have

it could

imprisonment

circumstances,

the

not

not have sentenced

___

lower

any error

discretion

in

than 121

failing to

to

Thus,

apply

Irizarry to

months.

hold a

In

these

sentencing

hearing was harmless.

As for the two other grounds raised by

his

of

2255 motion, we

them for

Irizarry in

affirm the district court's rejection

the reasons

stated in

its Opinion

and Order,

dated April 26, 1996.

The judgment of the district court is affirmed.

________

TORRUELLA, Chief Judge (dissenting).

remand for resentencing.

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w o u l d