* Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the Court has determined

that this opinion should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 94-50634

Summary Calendar

_____________________

United States of America,

Plaintiff/Appellee,

versus

Armando Ramirez-Rodriguez, 

Defendant/Appellant.

_________________________________________________________________

Appeal from the United States District Court

For the Western District of Texas 

(DR-94-CA 06 (DR-91-CR-06))

_________________________________________________________________

(May 22, 1995)

Before JOHNSON, BARKSDALE, and PARKER, Circuit Judges.*

JOHNSON, Circuit Judge:

Federal prisoner, convicted of conspiracy to possess with intent

to distribute marijuana, filed a motion for relief pursuant to 28

U.S.C. § 2255. In the motion, the prisoner contended that his

conviction violated double jeopardy because he was acquitted of

possession with the intent to distribute marijuana and that his trial

counsel was constitutionally ineffective for various reasons. 

Adopting the magistrate judge's recommendation, the district court

denied the prisoner's motion. The prisoner now appeals and, finding
2

no error, we AFFIRM.

I. FACTS AND PROCEDURAL HISTORY

In late 1990, Conrad Lopez, an informant on the DEA's payroll

and acting at the behest of Agent Robert Howell, contacted Domingo

Martinez-DeLeon (Martinez) in an attempt to determine if Martinez was

engaged in drug trafficking. Over the course of several meetings

with Martinez, Lopez was introduced to Alcadio Cervantez-Ramon

(Cervantez) and was shown a Kenworth tractor parked at Cervantez'

residence. This tractor was allegedly used to transport quantities

of marijuana. Moreover, Lopez learned that Martinez was to deliver

approximately 2000 pounds of marijuana to Dallas.

Lopez communicated this information to Agent Howell and

surveillance of the Kenworth truck was instituted when it was located

at a Del Rio truck stop on January 12, 1991. For several days, the

tractor, now hooked to a refrigerated trailer, remained at the truck

stop. While at the truck stop, DEA agents often observed Cervantez

checking on the rig and he moved it once to a different location on

the truck stop parking apron. Also, DEA agents several times

observed a gray pickup truck, owned by Appellant Armando RamirezRodriguez (Ramirez), driving up to the tractor-trailer and then to a

nearby motel where Romero Gonzalez-Quintanilla (Gonzalez) had taken

two rooms. Martinez, Gonzalez and Ramirez were seen together at the

motel on several occasions and these three also met with Cervantez at

the truck stop restaurant.

Late on the night of January 15th, Cervantez retrieved the

tractor-trailer rig from the truck stop and proceeded to the
3

residence of Antonio Delgado. The tractor-trailer remained there for

about two hours. The surveillance agents were unable, however, to

see what, if anything, occurred while the truck was parked at

Delgado's residence.

Shortly after midnight on the morning of the 16th, the tractortrailer rig left Delgado's residence and returned to the truck stop. 

Also shortly after midnight, Ramirez, Martinez and Gonzalez left the

motel in the gray pickup and proceeded to the truck stop where they

met up with Cervantez in the truck stop restaurant. Cervantez left

in the tractor-trailer after about 10-20 minutes, followed 15 minutes

later by Ramirez, Martinez and Gonzalez in the gray pickup.

DEA agents communicated their suspicions about these two

vehicles to the border patrol checkpoint about twenty miles northwest

of Del Rio. Thus, border patrol agents stopped the tractor-trailer

when it arrived and found about 1,720 pounds of marijuana. The gray

pickup, driven by Ramirez, arrived shortly after the tractor-trailer. 

Ramirez, Gonzalez and Martinez were then arrested and a loaded, 9mm

pistol was found protruding from underneath the right hand side of

the bench seat under where Martinez had been sitting.

A Del Rio grand jury returned indictments charging Ramirez,

Martinez, Cervantez, Gonzalez and Delgado with conspiracy to possess

with intent to distribute and possession with intent to distribute

more than 100 kilograms of marijuana. Also, all defendants except

Delgado were charged in a third count of carrying a firearm during

and in relation to the drug trafficking offenses charged in the first

two counts.
 

1 United States v. Martinez-DeLeon, 979 F.2d 208 (Table)

(5th Cir. Nov. 2, 1992) (unpublished), cert. denied, 113 S.Ct.

1434 (1993), and cert. denied, 113 S.Ct. 1828 (1993). 

4

A consolidated trial was held before a jury and the jury

returned guilty verdicts against all co-conspirators as follows: 1)

all five men were found guilty on the conspiracy count; 2) Martinez,

Cervantez and Delgado were found guilty on the possession count; and

3) Martinez alone was found guilty on the firearm offense. Relevant

to the instant appeal, the district court sentenced Ramirez to a term

of imprisonment of 121 months, a five-year term of supervised

release, and a $50 special assessment.

On November 2, 1992, this Court, in an unpublished opinion,

affirmed the convictions and sentences of Martinez, Ramirez,

Cervantez and Gonzalez.1 Delgado's conviction was overturned for

insufficiency of the evidence of his guilt.

Thereafter, Ramirez filed the instant motion for habeas relief

pursuant to 28 U.S.C. § 2255. In that motion, Ramirez argued that

his conviction for conspiracy to possess with intent to distribute

marijuana violated double jeopardy because he was acquitted of

possession with intent to deliver marijuana. Also, Ramirez contended

that his trial counsel was ineffective for failing to bring to the

court's attention that several jurors had seen him in handcuffs, for

failing to argue effectively for a minimal-participant adjustment and

for failing to argue effectively against an upward adjustment for

possession of a dangerous weapon during the offense.

The case was referred to a magistrate judge who issued a report

and recommendation finding that all of Ramirez' contentions were
5

without merit. Additionally, the magistrate judge found that a

hearing was not necessary. Ramirez filed objections to the

magistrate judge's report, but the district court rejected those

objections and adopted the magistrate judge's recommendation. Thus,

the district judge issued an order denying the relief Ramirez sought. 

Ramirez now appeals from that judgment.

II. DISCUSSION

 1. Double Jeopardy

In his first point of error, Ramirez contends that his

conspiracy conviction is inconsistent with his acquittal on the

possession charge and violates double jeopardy. This contention is

without merit. This is because a drug conspiracy is a separate and

distinct "offense" for double jeopardy purposes from the underlying

substantive drug offense. United States v. Brown, 29 F.3d 953, 957

(5th Cir.), cert. denied, 115 S.Ct. 587 (1994); United States v.

Rodriguez, 948 F.2d 914 (5th Cir. 1991), cert. denied, 112 S.Ct. 2970

(1992); United States v. Kalish, 734 F.2d 194, 197 (5th Cir. 1984),

cert. denied, 105 S.Ct. 1169 (1985). Therefore, acquittal on the

substantive drug count does not bar conviction on the conspiracy

count.

2. Ineffective Assistance of Counsel

Ramirez argues that his counsel was ineffective at trial because

he failed to move for a mistrial when several jurors saw him in

handcuffs. Moreover, Ramirez contends that his counsel was

ineffective at sentencing because he did not argue effectively for a

minimal-participant adjustment and because he failed to argue
6

effectively against the upward adjustment imposed for the possession

of a dangerous weapon during the offense. 

To succeed with a claim of ineffective assistance of counsel,

Ramirez would have to show that 1) his trial counsel's performance

was deficient, and 2) that the deficient performance prejudiced his

rights. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,

2064 (1984). If proof of one element is lacking, we need not examine

the other. Kirkpatrick v. Blackburn, 777 F.2d 272, 285 (5th Cir.

1985), cert. denied, 106 S.Ct. 2907 (1986). In order to prove the

prejudice prong of the Strickland test, a defendant must show that

there is a reasonable probability that, but for counsel's

unprofessional errors, the result would have been different. United

States v. Rosalez-Orozco, 8 F.3d 198, 199 (5th Cir. 1993).

Initially, Ramirez alleges that two or three jurors allegedly

saw him in handcuffs outside the courtroom. Ramirez contends that he

related this to his trial counsel, but that his counsel failed to

move for a mistrial and thus was constitutionally ineffective.

This Court has long recognized that an accused person is

presumed innocent and is, therefore, entitled to the physical indicia

of innocence. United States v. Theriault, 531 F.2d 281, 284 (5th

Cir.), cert. denied, 97 S.Ct. 262 (1976). We have also recognized,

however, that "brief and inadvertent exposure to jurors of defendants

in handcuffs is not so inherently prejudicial as to require a

mistrial, and defendants bear the burden of affirmatively

demonstrating prejudice." United States v. Decidue, 603 F.2d 535,

549 (5th Cir. 1979), cert. denied, 100 S.Ct. 1345 (1980); see also,
 

2 Although unsuccessful, Ramirez' trial counsel did argue

at sentencing for an adjustment to adequately reflect his lesser

role in the offense. Ramirez contends that his counsel was

ineffective, though, because he did not make this argument

strongly enough in that he failed to put forth the proper facts

to support this issue. However, nowhere does Ramirez identify

what facts should have been presented to the sentencing court

that were not presented. 

7

United States v. Ware, 897 F.2d 1538, 1542 (10th Cir. 1990) (in

absence of showing of prejudice, fleeting view of defendant in

handcuffs does not justify a new trial), cert. denied, 110 S.Ct. 2629

(1990).

In his brief, Ramirez himself characterizes this alleged

encounter where the jurors saw him as "inadvertent." Moreover, in no

way does Ramirez affirmatively demonstrate any prejudice. Rather,

Ramirez merely suggests that there is a "very distinct possibility"

that the jury was biased by this incident. In light of the

substantial evidence of Ramirez' guilt, this is not sufficient to

meet the prejudice prong of the Strickland test for ineffective

assistance of counsel.

Finally, Ramirez' arguments as to his counsel's ineffectiveness

at sentencing are undercut by this Court's opinion on direct appeal. 

First, Ramirez argues that his counsel was ineffective at sentencing

for failing to argue successfully2 for a minimal-participant

reduction under U.S.S.G. § 3B1.2. However, this Court, on direct

appeal, rejected Ramirez' contention that he was entitled to such an

adjustment. Thus, Ramirez cannot show that he was prejudiced by any

such alleged deficiency by counsel.

Lastly, Ramirez contends that his counsel was ineffective for
8

failing to argue that Ramirez was not aware of the weapon found under

the passenger seat of the pickup he was driving. Again, though, this

Court specifically dealt with this issue on direct appeal. In so

doing, this Court determined that the district court's finding that a

co-defendant's possession of a dangerous weapon was reasonably

foreseeable to Ramirez was sufficient to support the enhancement even

if Ramirez was not actually aware of that possession. R. Vol. 1 at

36-37. Hence, even if counsel's failure to make this argument was

error, Ramirez cannot show that but for that error there was a

reasonable probability that his sentence would have been different. 

Thus, Ramirez cannot make out the prejudice showing required under

the Strickland test. 

III.CONCLUSION

For the reasons stated above, the judgment of the district court

is AFFIRMED.