                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          OCT 26 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 00-2025
                                                (D.C. No. CIV-99-7-BB/WWD)
    LINO QUINTANA-OROSCO,                                 (D. N.M.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before TACHA , 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 case is

therefore ordered submitted without oral argument.

         Defendant Lino Quintana-Orosco pled guilty to conspiracy to possess with

intent to distribute more than 100 kilograms of marijuana and was sentenced to


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and 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.
sixty months’ imprisonment, the statutory mandatory minimum sentence. He did

not take a direct appeal. This appeal is from the denial of his motion for habeas

relief under 28 U.S.C. § 2255. The district court granted a certificate of

appealability on the issue of ineffective assistance of counsel. We thus have

jurisdiction over the appeal.   See 28 U.S.C. § 2253(a).

       Defendant argues on appeal that his former counsel: (1) failed to advise

him that a downward departure from the statutory minimum sentence was

available under the “safety valve” provision in 18 U.S.C. § 3553(f) and U.S.S.G.

§ 5C1.2; and (2) failed to seek and accurately advise him concerning a downward

adjustment of the guideline range for his role in the offense under U.S.S.G.

§ 3B1.2. Defendant contends that he was prejudiced by his former counsel’s

unprofessional errors.    See Strickland v. Washington , 466 U.S. 668, 687 (1984).

       The magistrate judge appointed counsel and held an evidentiary hearing at

which both defendant and his former counsel testified. Based on the evidence,

the magistrate judge concluded that counsel did discuss the safety valve provision

with defendant. The magistrate judge further found that counsel discussed with

defendant an adjustment for his role in the offense, but that the prosecution would

not agree to such an adjustment. The district court adopted the magistrate judge’s

proposed findings and recommendation.




                                          -2-
       In a proceeding under § 2255, we review the district court’s legal

conclusions de novo and its factual findings for clear error.    See United States v.

Pearce , 146 F.3d 771, 774 (10th Cir. 1998). “A district court’s factual finding is

clearly erroneous only if it is without factual support in the record or if [this]

court, after reviewing all the evidence, is left with a definite and firm conviction

that a mistake has been made.”     United States v. Patron-Montano    , 223 F.3d 1184,

1188 (10th Cir. 2000) (quotation omitted). We have carefully reviewed the record

on appeal in light of the parties’ arguments and the appropriate legal standards.

We are unpersuaded by defendant’s assertions of error, and affirm for

substantially the same reasons as those set out in the November 23, 1999

proposed findings and recommendation of the magistrate judge, as adopted by the

district court in its December 21, 1999 order.

       AFFIRMED.

                                                         Entered for the Court



                                                         Mary Beck Briscoe
                                                         Circuit Judge




                                             -3-
