                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-3536
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Northern District of Iowa.
Thongmy Thammavong,                     *
                                        *
            Appellant.                  *
                                   ___________

                             Submitted: June 16, 2004
                                Filed: August 5, 2004
                                 ___________

Before SMITH, BEAM, and COLLOTON, Circuit Judges.
                           ___________

COLLOTON, Circuit Judge.

      Appellant Thongmy Thammavong appeals the district court's1 denial of his
motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255,
based on alleged ineffective assistance of counsel. We agree with the district court
that Thammavong failed to demonstrate that his counsel's performance fell below an
objective standard of reasonableness as required by Strickland v. Washington, 466
U.S. 668 (1984), and we therefore affirm.


      1
        The Honorable Mark W. Bennett, Chief Judge, United States District Court
for the Northern District of Iowa.
                                          I.

       On March 24, 2000, a federal grand jury in the Northern District of Iowa
returned a one count indictment against Thammavong and his co-conspirator, Minh
Van Nguyen, charging both men with conspiracy to distribute methamphetamine in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), and 846. Pursuant to a non-
cooperation plea agreement, Thammavong pleaded guilty to this single count on
January 16, 2001, and was sentenced on April 3, 2001. The presentence report
recommended a two-level adjustment under the United States Sentencing Guidelines
for possession of a firearm in connection with the charged offense, USSG
§ 2D1.1(b)(1), which would have disqualified Thammavong from eligibility for the
so-called "safety valve" provision of 18 U.S.C. § 3553(f). The safety valve provision
permits a district court to sentence a defendant without regard to the statutory
minimum sentence that otherwise would apply, so long as certain conditions are met.
These conditions include a requirement that the defendant provide the government
with "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," 18 U.S.C. § 3553(f)(5), and that the defendant did not possess a firearm in
connection with the offense. 18 U.S.C. § 3553(f)(2). In this case, satisfaction of the
safety valve criteria also would have resulted in a two-level reduction in
Thammavong's offense level under the sentencing guidelines, USSG § 2D1.1(b)(6),
and a sentencing range of 108 to 135 months, rather than 135 to 168 months.

       At the time of sentencing, the government acceded to Thammavong's position
that the court should not assess a two-level adjustment for possession of a firearm
under § 2D1.1(b)(1). As a result, Thammavong was potentially eligible for the safety
valve reduction if he participated in an interview designed to satisfy the requirements
of 18 U.S.C. § 3553(f)(5). However, after discussing the matter with Thammavong,
his counsel did not request a continuance to allow Thammavong to participate in such
an interview. Counsel made this decision because he believed that Thammavong

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could receive a reduction of sentence pursuant to Federal Rule of Criminal Procedure
35(b) in connection with a separate, but related, criminal investigation in California.
Rule 35(b) provides that the government may move for a reduction in sentence for a
defendant who has been sentenced, if the defendant has "provided substantial
assistance in investigating and prosecuting another person." Fed.R.Crim.P. 35(b)(1).
Counsel believed that any reduction that Thammavong might receive at sentencing
under the safety valve provision would be achieved through a later reduction under
Rule 35(b), so there was no need to pursue both routes.

       The district court sentenced Thammavong to 123 months imprisonment, after
departing downward from the applicable guideline range of 135 to 168 months.
Thereafter, for reasons that are not explained entirely in the record, authorities did not
pursue the California investigation, and never requested Thammavong's assistance
in that case. As a result, the government did not move to reduce Thammavong's
sentence pursuant to Rule 35(b). Thammavong later brought a motion pursuant to 28
U.S.C. § 2255, alleging that his counsel's failure to request a continuance in order to
pursue safety-valve eligibility amounted to ineffective assistance of counsel under
Strickland. The district court denied Thammavong's motion, but granted a certificate
of appealability on that claim. See 28 U.S.C. § 2253(c).

                                           II.

       To obtain relief based on a deprivation of the right to effective assistance of
counsel, Thammavong must prove two elements of the claim. First, he "must show
that counsel's performance was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. In considering
whether this showing has been accomplished, "[j]udicial scrutiny of counsel's
performance must be highly deferential." Id. at 689. We seek to "eliminate the
distorting effects of hindsight" by examining counsel's performance from counsel's

                                           -3-
perspective at the time of the alleged error. Id. Second, Thammavong "must show
that the deficient performance prejudiced the defense." Id. at 687. This requires him
to demonstrate "a reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different." Id. at 694.

       The district court found that Thammavong had proven the prejudice prong,
because there was a reasonable probability that Thammavong's sentence would have
been different if he had moved to continue sentencing and provided the requisite
information to the government in an interview. The court found that the deficient
performance prong had not been met, however, because Thammavong's counsel
reasonably believed that Thammavong would have an opportunity to obtain a
reduction in sentence pursuant to a Rule 35(b) motion. We review de novo the
district court's legal conclusions, but review its underlying findings of fact for clear
error. United States v. White, 341 F.3d 673, 677 (8th Cir. 2003), cert. denied, 124
S.Ct. 1701 (2004).

       Thammavong argues that his counsel should have taken action to ensure that
Thammavong had an opportunity to pursue both the safety valve reduction and a Rule
35(b) motion. In explaining his strategy, counsel testified that he had been informed
by the government that there was a "great likelihood" Thammavong would be able
to assist in the California investigation, and that Thammavong's sentence would be
reduced as a result. Counsel further explained that he believed the information
Thammavong had to offer "would all come out in the process of the California
investigation. In other words, the two-level decrease that could come with the safety
valve would come out in the wash as a way of speaking." He went on to say that he
advised Thammavong that he "had a very good chance of getting a reduction in his
sentence under Rule 35(b), and that would take into consideration any safety valve
issues or take the issue away in a sense."




                                          -4-
       Like the district court, we conclude that counsel's representation did not fall
below an "objective standard of reasonableness." See Strickland, 466 U.S. at 687-88.
Counsel's first task was to judge whether the government's prediction regarding the
California investigation and possible Rule 35(b) motion was accurate and reliable.
Counsel had discussed the matter with the prosecuting attorney, who advised that
future cooperation was likely. The Assistant United States Attorney also assured
counsel that he would arrange for an investigator to make contact with Thammavong
and California authorities immediately after sentencing, so that Thammavong could
continue his cooperation. Even Thammavong now concedes that there was no way
his counsel could have expected that authorities eventually would decline to seek
Thammavong's cooperation in connection with the California investigation. We thus
believe it was reasonable for counsel to conclude that there was a good chance that
Thammavong would be in a position to earn a Rule 35(b) motion through cooperation
in California.

       As for Thammavong's argument that a reasonable attorney nonetheless would
have pursued both the safety valve interview and the Rule 35(b) motion, we believe
this contention fails to recognize that the safety valve interview process is not free of
risk. Counsel was aware that while Thammavong was willing to testify concerning
subjects of the investigation in California, he had been reluctant to provide
information to law enforcement concerning his criminal activity in Iowa.
Thammavong feared retribution from his co-defendant in the Iowa case (who was a
fugitive), and Thammavong's attorney never knew whether his client truly was
willing to provide complete information to law enforcement about subjects in Iowa.

       In determining whether to pursue the safety valve interview, counsel was
required to consider the likelihood that Thammavong would complete a successful
interview. The risks were not insubstantial. If Thammavong withheld information
or made untruthful statements about his Iowa co-conspirators during a safety valve
interview, then his credibility would be damaged. The government's enthusiasm for

                                          -5-
accepting his cooperation in the California investigation, and his value as a potential
witness in that investigation, would likely be diminished. The Rule 35(b) motion,
moreover, promised potentially much greater benefit than a two-level reduction under
USSG § 2D1.1(b)(6), because a government motion under Rule 35(b) authorizes the
court to reduce the defendant's sentence below both the statutory minimum sentence
and the applicable sentencing guideline range. Thus, by foregoing the safety valve
interview, and arranging for Thammavong's first interview with law enforcement to
address the California matters about which he was eager to share information, counsel
reasonably pursued a strategy designed to reduce risk and maximize potential benefit.
While the stagnation of the California investigation renders the decision questionable
in hindsight, we cannot find that the advice was objectively unreasonable when
evaluated from counsel's perspective at the time.

      We agree with the district court that Thammavong has not overcome the
"strong presumption that counsel's conduct falls within the wide range of reasonable
professional assistance." Strickland, 487 U.S. at 689. Accordingly, we need not
consider whether the record shows a reasonable probability that Thammavong would
have provided a successful safety valve interview, such that he was prejudiced by
counsel's advice to forego the interview. The judgment of the district court is
affirmed.
                       ______________________________




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