                                                                        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       This order and judgment is not binding precedent, except under the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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