                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  November 11, 2004

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 04-30756
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

PEDRO RODRIGUEZ-MONTES,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
              for the Western District of Louisiana
                     USDC No. 6:02-CR-60028-1
                       --------------------

Before DAVIS, SMITH and DENNIS, Circuit Judges.

PER CURIAM:*

     Pedro Rodriguez-Montes, federal prisoner #11418-035, seeks a

certificate of appealability (“COA”) to appeal the district

court’s denial of his 28 U.S.C. § 2255 motion in which he sought

to challenge his guilty-plea conviction for conspiracy to possess

with the intent to distribute marijuana.      To obtain a COA, an

applicant must make a substantial showing of the denial of a

constitutional right.     See 28 U.S.C. § 2253(c)(2).   This requires

the applicant to demonstrate that reasonable jurists would find


     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                            No. 04-30756
                                 -2-

the district court’s assessment of the constitutional claims

debatable or wrong.    Slack v. McDaniel, 529 U.S. 473, 484 (2000).

     Rodriguez-Montes argues that counsel was ineffective at

sentencing in failing to seek a two-level “safety-valve”

reduction, pursuant to U.S.S.G. § 5C1.2.   The safety-valve

provision is an exception to the general rule under the

sentencing guidelines that, if the statutory minimum sentence is

greater than the maximum guideline range, the statutory minimum

sentence must be the guideline sentence.    See U.S.S.G.

§ 5G1.1(b).   The safety valve provides that, for convictions of

certain drug offenses, the “court shall impose a sentence in

accordance with the applicable guidelines without regard to any

statutory minimum sentence” if the defendant meets certain

requirements.    See U.S.S.G. § 5C1.2(a)(1)-(5); United States v.

Rodriguez, 60 F.3d 193, 194-95 (5th Cir. 1995).   The first of

these criteria is not having more than one criminal history

point.   See U.S.S.G. § 5C1.2(a)(1).

     The record reflects that Rodriguez-Montes’s 1990 guilty-plea

conviction for theft of property was incorrectly assessed one

criminal history point under U.S.S.G. § 4A1.1(c).   Rodriguez-

Montes did not serve any period of imprisonment, and the sentence

was imposed more than 10 years prior to the commencement of the

instant offense.    See U.S.S.G. § 4A1.1, comment. (n.3); U.S.S.G.

§ 4A1.2(e)(2).   As Rodriguez-Montes had only one criminal history

point and apparently otherwise qualified for the safety-valve
                           No. 04-30756
                                -3-

reduction, Rodriguez has shown that counsel was ineffective for

failing to move for such a reduction.     Accordingly, Rodriguez-

Montes has shown that reasonable jurists would dispute the

correctness of the district court’s denial of his 28 U.S.C.

§ 2255 motion.   We GRANT COA, VACATE the judgment of the district

court, and REMAND the case to the district court for further

proceedings.

     COA GRANTED; JUDGMENT VACATED AND CASE REMANDED.
