                                                              F I L E D
                                                       United States Court of Appeals
                                                                Fifth Circuit
               IN THE UNITED STATES COURT OF APPEALS          March 27, 2003
                       FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                                                                   Clerk

                            No. 02-20440
                          Summary Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

RUBEN GARZA,

                                     Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                       USDC Nos. H-00-CV-3439
                                 H-93-CR-7-14
                        --------------------

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Ruben Garza seeks 28 U.S.C. § 2255 relief from the sentence

imposed following his guilty plea to several drug-related

offenses.   He was granted a certificate of appealability on the

issue whether trial counsel was ineffective at sentencing for not

re-urging application of the “safety valve” provisions under

U.S.S.G. §§ 5C1.2 and 2D1.1(b)(6).   On review of the denial of a

28 U.S.C. § 2255 motion, we review factual findings for clear


     *
        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that this opinion should not be published and is not precedent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. 02-20440
                                -2-

error and conclusions of law de novo.     United States v.

Stricklin, 290 F.3d 748, 750 (5th Cir. 2002).

     Although Garza was sentenced in September 1998, the district

court applied the 1994 Sentencing Guidelines, in which neither

U.S.S.G. § 2D1.1(b)(6) nor its predecessor § 2D1.1(b)(4) is

found.   See Amendment 514, U.S.S.G. Apps. B & C (1995), pp. 415-

17; Amendment 555, U.S.S.G. App. C, Vol. 1, p. 405.    The

propriety of the district court’s application of the 1994

Sentencing Guidelines is not before us.     See Hughes v. Johnson,

191 F.3d 607, 613 (5th Cir. 1999).   Garza correctly concedes that

the district court could not have departed downward pursuant to

U.S.S.G. § 5C1.2, because his guideline range exceeded the

mandatory minimum.   See United States v. Solis, 169 F.3d 224, 226

& n.2 (5th Cir. 1999).

     In light of the foregoing, he can establish neither the

alleged deficiency nor the alleged prejudice arising from

counsel’s performance.   See Strickland v. Washington, 466 U.S.

668, 687 (1984).

     AFFIRMED.
