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This order and judgment is not binding precedent, except under the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-