                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-3704
                                   ___________

Gabriel Rios,                           *
                                        *
      Petitioner-Appellant,             * Appeal from the United States
                                        * District Court for the
      v.                                * District of Minnesota.
                                        *
United States of America,               *      [UNPUBLISHED]
                                        *
      Respondent-Appellee.              *
                                   ___________

                              Submitted: April 3, 2007
                                 Filed: April 26, 2007
                                  ___________

Before BYE, BRIGHT, and RILEY, Circuit Judges.
                             ___________

PER CURIAM.

       Gabriel Rios filed a motion seeking relief under 28 U.S.C. § 2255 for
ineffective assistance of counsel because his attorney may have failed to arrange a
proffer meeting with the Government to discuss Rios’s eligibility for the “safety
valve” sentencing provisions of U.S.S.G. §§ 5C1.2(a)(5) and 2D1.1(b)(7) (2004)1.




      1
       The district court sentenced Rios under the 2004 Sentencing Guidelines.
Section 2D1.1(b)(7) was renumbered in the 2006 Guidelines at § 2D1.1(b)(9).
The district court2 denied Rios’s motion without a hearing, but granted a certificate
of appealability. We affirm the district court’s denial of § 2255 relief.

       A jury convicted Gabriel Rios of conspiring to possess with the intent to
distribute methamphetamine, aiding and abetting possession with intent to distribute
methamphetamine, and distributing methamphetamine. At trial, Rios testified in his
own defense. He admitted he orchestrated a meeting between a potential buyer and
seller of methamphetamine, attended the exchange, and accepted a three hundred
dollar cut from the buyer in the transaction. He defended his role by explaining that
he was only attempting to connect a buyer and seller.

      A probation officer calculated Rios’s base offense level at 36, with a sentencing
guideline range of 188-235 months of imprisonment. The presentence report noted
Rios’s possible qualification for the “safety valve” provisions of U.S.S.G. §§
5C1.2(a)(5) and 2D1.1(b)(7):3 “The defendant has no criminal history points. Should

      2
      The Honorable Donovan Frank, United States District Judge for the District
of Minnesota.
      3
       Section 5C1.2(a) of the Sentencing Guidelines states, in part:

      the court shall impose a sentence in accordance with the applicable
      guidelines without regard to any statutory minimum sentence, if the
      court finds that the defendant meets the criteria in 18 U.S.C. §
      3553(f)(1)-(5) set forth below:

      (1)    the defendant does not have more than 1 criminal history point, .
             ..;

      (2)    the defendant did not use violence or credible threats of violence
             or possess a firearm or other dangerous weapon (or induce another
             participant to do so) in connection with the offense;

      (3)    the offense did not result in death or serious bodily injury to any
             person;

                                         -2-
the Government accept a proffer from the defendant, he would be eligible for a 2-level
reduction, according to § 5C1.2(a)(5) (Limitation on Applicability of Statutory
Minimum Sentences in Certain Cases) and § 2D1.1(b)(7).” Report at ¶ 26. Yet there
is no indication in the record that defense counsel attempted to arrange for Rios to
make a proffer to the Government.

        At sentencing, the district court sentenced Rios to 120 months of imprisonment,
the mandatory minimum and a 36% departure from the low end of his Sentencing
Guidelines range. The district court stated: “I do not want to leave the impression
that but for the mandatory minimum, I would have dropped to 84 months or
something less than that, because I believe on all of the factors before me that that is
a fair and reasonable sentence.”

       Rios filed a motion to vacate his sentence under 28 U.S.C. § 2255 for
ineffective assistance of counsel. He asserted that his attorney failed to notify him of
the proffer opportunity or request a proffer meeting to satisfy the “safety valve”


      (4)    the defendant was not an organizer, leader, manager, or supervisor
             of others in the offense, . . . ; and

      (5)    not later than the time of the sentencing hearing, the defendant
             has truthfully provided to the Government all information and
             evidence the defendant has concerning the offense or offenses that
             were part of the same course of conduct or of a common scheme
             or plan, but the fact that the defendant has no relevant or useful
             other information to provide or that the Government is already
             aware of the information shall not preclude a determination by
             the court that the defendant has complied with this requirement.”


(Emphasis added.) Section 2D1.1(b)(7) of the 2004 Sentencing Guidelines provides,
“[i]f the defendant meets the criteria set forth in subdivisions (1)-(5) of subsection (a)
of §5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain
Cases), decrease by 2 levels.”

                                            3
requirements. He argued that but for his counsel’s failure to arrange for the proffer,
his guideline range would have been 151-188 months (base offense level of 34) and
the district court would have similarly departed 36% from the lowest end of the range,
avoiding the statutory minimum and sentencing him to 97 months’ imprisonment.
The district court denied Rios’s motion without a hearing because he failed to
establish counsel was ineffective for failing to schedule a proffer meeting with the
Government or that Rios would have proffered if given the opportunity.

       This court reviews de novo the district court’s denial of Rios’s § 2255 motion
without an evidentiary hearing. See Buster v. United States, 447 F.3d 1130, 1132 (8th
Cir. 2006).4 The denial of a § 2255 motion without an evidentiary hearing will be
affirmed “only if the motion, files, and record conclusively show the movant is not
entitled to relief.” Id. The district court did not err in dismissing Rios’s § 2255
motion without a hearing if (1) his “allegations, accepted as true, would not entitle”
him to relief, or “(2) the allegations cannot be accepted as true because they are
contradicted by the record, inherently incredible, or conclusions rather than statements
of fact.” Id. (quoting Sanders v. United States, 341 F.3d 720, 722 (8th Cir. 2003)).

       In order to successfully challenge his sentence under § 2255, Rios must satisfy
the test enunciated in Strickland v. Washington, 466 U.S. 668, 693 (1984): he must
demonstrate that his "counsel's representation fell below an objective standard of
reasonableness" resulting in prejudice. In an attempt to satisfy the first prong of
Strickland, Rios maintains that his counsel never informed him of his eligibility for
“safety valve” reduction. Rios presented no affidavit to support his assertion. Even
accepting his allegations as true, we are not persuaded that counsel’s representation


      4
        “[This court] review[s] the decision to deny such a hearing for abuse of
discretion. That standard is somewhat misleading, however, because review of the
determination that no hearing was required obligates [the court] to look behind that
discretionary decision to the court's rejection of the claim on its merits, which is a
legal conclusion that we review de novo.” United States v. Saunders, 236 F.3d 950,
952 (8th Cir. 2001).

                                           4
in this case rose to the level of constitutionally deficient performance. Given Rios’s
testimony at trial, his counsel reasonably could have determined that Rios could not
successfully fulfill the “safety valve” requirement that Rios provide a truthful proffer.

       In addition, even if failure to notify Rios of his proffer opportunity in these
circumstances constituted unreasonable representation, Rios has not met the prejudice
prong of Strickland. Rios must be able to show with reasonable probability that but
for the deficient representation, the result of his sentencing would have been different.
See United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). He argues that he
would have received an additional two-year reduction to his sentence. The district
court, however, explicitly stated when sentencing Rios below his Sentencing
Guidelines range: “I do not want to leave the impression that but for the mandatory
minimum, I would have dropped to 84 months or something less than that, because
I believe on all of the factors before me that that is a fair and reasonable sentence.”
There is no indication that the district judge would have further reduced Rios’s
sentence had the statutory minimum not applied or had his base offense level been 34
with an imprisonment range of 155-188 months. Rios has not demonstrated that but
for counsel’s failure to arrange a proffer with the Government, he probably would
have received a lesser sentence.

      For the reasons set forth above, we affirm the district court’s denial of relief.
                       ______________________________




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