United States v. Garza

* 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that this opinion should not be published and is not precedent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.
F I L E D
United States Court of Appeals
Fifth Circuit
March 27, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20440
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RUBEN GARZA,
Defendant-Appellant.
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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

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No. 02-20440
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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.

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