United States v. Villalobos-Reyes ( 2000 )


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  •                                                                         F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS                          MAR 1 2000
    TENTH CIRCUIT                      PATRICK FISHER
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    No. 99-2307
    v.                                             (D.C. No. CIV-99-1021-JC)
    (New Mexico)
    RAMON VILLALOBOS REYES,
    Defendant-Appellant.
    ORDER AND JUDGMENT *
    Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is
    therefore ordered submitted without oral argument.
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, or collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    Petitioner Ramon Villalobos Reyes, appearing pro se, seeks a certificate of
    appealability following the district court's denial of his petition for a writ of
    habeas corpus under 
    28 U.S.C. § 2255
    , and subsequent denial of a certificate of
    appealability under 
    28 U.S.C. § 2253
    (c). To obtain a certificate of appealability,
    Mr. Villalobos Reyes must make "a substantial showing of the denial of a
    constitutional right." 
    28 U.S.C. § 2253
    (c)(2). We conclude that he has failed to
    make this showing, and accordingly we deny his request for a certificate of
    appealability and dismiss the appeal.
    Mr. Villalobos Reyes pled guilty to a single-count indictment for
    possession of over 135 kilograms of marijuana in violation of 
    21 U.S.C. §§ 846
    and 841. He now claims that he received ineffective assistance of counsel
    because his attorney failed to move for downward departure under the United
    States Sentencing Guidelines (USSG), which he argues would have enabled the
    court to impose a lesser sentence than the statutorily defined minimum sentence
    he received.
    The statutory minimum for Mr. Villalobos Reyes’ offense was 60 months.
    Under the Guidelines, his prison term would have been 41-51 months. Because
    the statutory minimum term was greater than the maximum term under the
    Guidelines, the Court imposed the statutory minimum as required by USSG §
    5G1.1(b). Mr. Villalobos Reyes had three criminal history points under USSG
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    § 4A1.1, making him ineligible for the “safety valve” exception to statutory
    minimum sentences. See USSG 5C1.2(1) (court must impose statutory minimum
    sentence if defendant has more than one criminal history point). He argues that
    he served little time in jail for these three offenses, and that the three criminal
    history points overstate the seriousness of his past criminal conduct. 1 On this
    basis, he argues his attorney was ineffective for failing to move for a downward
    sentencing departure pursuant to USSG § 4A1.3. See USSG § 4A1.3 (allowing
    courts to depart from the otherwise applicable Guideline range when points in
    criminal history category do not reflect the seriousness of defendant’s past
    criminal conduct). Had his attorney done so, Mr. Villalobos Reyes contends the
    court could have removed some of his criminal history points, making him
    eligible for the “safety valve” exception of § 5C1.2 and a reduction in his
    sentence to the shorter term recommended by the Guidelines.
    Mr. Villalobos Reyes is incorrect. The commentary to the safety valve
    1
    The fact that Mr. Villalobos Reyes served little time in jail for these
    offenses is irrelevant to the amount of criminal history points he should be
    assessed for them. “[C]riminal history points are based on the sentence
    pronounced, not the length of time actually served” for the purposes of applying
    § 4A1.1(c). USSG § 4A1.2, comment. (n.2); see also United States v. Pettit, 
    938 F.2d 175
    , 178 (10th Cir. 1991). Mr. Villalobos Reyes has not provided us with a
    copy of his Pre-Sentence Report. Consequently, we do not know what these
    offenses were or the length of his sentences as opposed to how much time he
    actually served. However, this information is unnecessary for our disposition of
    the case.
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    provision clearly states that it refers to criminal history points “as determined
    under § 4A1.1.” USSG § 5C1.2, comment. (n.1). Thus, even if Mr. Villalobos
    Reyes’ attorney had requested and obtained a downward departure under § 4A1.3,
    this would not have altered the original assessment of Mr. Villalobos Reyes’
    criminal history points as determined under § 4A1.1. A downward sentencing
    departure pursuant to § 4A1.3 does not affect the number of points in the
    defendant’s criminal history category as determined by § 4A1.1.
    This court has previously held that a reduction of a defendant’s criminal
    history category under § 4A1.3 is irrelevant to his eligibility for the safety valve
    provision. See United States v. Owensby, 
    188 F.3d 1244
    , 1246-47 (10th Cir.
    1999) (“[W]hile U.S.S.G. § 4A1.3 affords a sentencing court discretion to
    determine whether a criminal history category accurately reflects a defendant's
    criminal history, nothing in U.S.S.G. § 4A1.1 suggests that the sentencing court
    has any discretion with respect to the calculation of a defendant's criminal history
    score.”) (citing United States v. Robinson, 
    158 F.3d 1291
    , 1294 (D.C. Cir. 1998),
    cert. denied, 
    119 S. Ct. 1155
     (1999). 2
    2
    Several other circuits addressing the issue have arrived at the same
    conclusion. See United States v. Orozco, 
    121 F.3d 628
    , 630 (11th Cir. 1997);
    United States v. Showalter, No. 96-4107, 
    1997 WL 1886
     (4th Cir. Jan. 3, 1997)
    (unpublished); United States v. Ward, No. 95-5967, 
    1996 WL 531017
     (4th Cir.
    Sept. 19, 1996) (unpublished); United States v. Moog, Nos. 95-3389, 95-3417,
    95-4184, 
    1996 WL 431343
     (8th Cir. Aug. 2, 1996) (unpublished); United States
    v. Resto, 
    74 F.3d 22
    , 28 (2d Cir. 1996); United States v. Valencia-Andrade, 72
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    Mr. Villalobos Reyes’ sentence would thus not have been affected by an
    additional downward departure under the Guidelines, and a motion for such relief
    would have been futile. The failure of Mr. Villalobos Reyes’ attorney to move
    for such a downward departure was neither objectively unreasonable nor
    prejudicial to Mr. Villalobos Reyes’ case, and therefore does not constitute
    ineffective assistance of counsel under Strickland v. Washington, 
    466 U.S. 668
    (1984).
    For these reasons, we DENY Mr. Villalobos Reyes a certificate of
    appealability and DISMISS the appeal.
    ENTERED FOR THE COURT
    Stephanie K. Seymour
    Chief Judge
    F.3d 770, 774 (9th Cir. 1995).
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