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[NOT FOR PUBLICATION]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
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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.
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