
USCA1 Opinion

	




          November 29, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                            ____________________        No. 95-1708                                   WILLIAM MAHONEY,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                        FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                Selya, Stahl and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            William Mahoney on brief pro se.            _______________            Sheldon Whitehouse, United  States Attorney,  Margaret E.  Curran,            __________________                            ___________________        Assistant United  States Attorney,  and Lawrence D.  Gaynor, Assistant                                                ___________________        United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                 Per  Curiam.   We affirm  substantially for  the reasons                 ___________            stated  in  the magistrate-judge's  May  5,  1995 report  and            recommendation.  We add the following.                 1.   We  reject petitioner's  argument that  no criminal            history  point  should  have  been  added  for  the  offenses            described in  paragraph 34 of  the presentence report.   That            paragraph  plainly  states   that  petitioner  received   the            "minimum sentence" after pleading nolo  contendere to driving                                              ________________            under the influence.  Consequently, this offense was properly            counted  in petitioner's  criminal  history under  U.S.S.G.              4A1.1(c),  which directs a point  to be added  for each prior            sentence (up to a total of four points).            ________                 2.   There is  no  merit to  petitioner's argument  that            counsel was  ineffective in failing  to argue for  a downward            departure  under   U.S.S.G.     4A1.3  on   the  ground  that            petitioner's  criminal  history category  significantly over-            represented the seriousness of petitioner's  criminal history            or  the  likelihood  that  petitioner  would  commit  further            crimes.    Section  4A1.3  gives  as   an  example  of  over-            representation   a  defendant  with   two  minor  misdemeanor            convictions  close  to  ten  years old  and  no  evidence  of            intervening criminal behavior.   Petitioner's history is  not            at  all comparable to the  example.  He  had five potentially            countable misdemeanor  convictions (only four  of which  were            counted in view  of   4A1.1(c)'s  four point limitation)  and                                         -2-            his  criminal  history  spanned  many  years.    Petitioner's            criminal history was not over-represented and counsel did not            provide  ineffective  assistance  in  failing  to  advance  a            meritless argument.                 Affirmed.                 ________                                         -3-
