United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 11, 2004
Charles R. Fulbruge III
Clerk
No. 04-30756
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO RODRIGUEZ-MONTES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:02-CR-60028-1
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Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
Pedro Rodriguez-Montes, federal prisoner #11418-035, seeks a
certificate of appealability (“COA”) to appeal the district
court’s denial of his 28 U.S.C. § 2255 motion in which he sought
to challenge his guilty-plea conviction for conspiracy to possess
with the intent to distribute marijuana. To obtain a COA, an
applicant must make a substantial showing of the denial of a
constitutional right. See 28 U.S.C. § 2253(c)(2). This requires
the applicant to demonstrate that reasonable jurists would find
*
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this opinion should not be published and is not precedent except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.
No. 04-30756
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the district court’s assessment of the constitutional claims
debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Rodriguez-Montes argues that counsel was ineffective at
sentencing in failing to seek a two-level “safety-valve”
reduction, pursuant to U.S.S.G. § 5C1.2. The safety-valve
provision is an exception to the general rule under the
sentencing guidelines that, if the statutory minimum sentence is
greater than the maximum guideline range, the statutory minimum
sentence must be the guideline sentence. See U.S.S.G.
§ 5G1.1(b). The safety valve provides that, for convictions of
certain drug offenses, the “court shall impose a sentence in
accordance with the applicable guidelines without regard to any
statutory minimum sentence” if the defendant meets certain
requirements. See U.S.S.G. § 5C1.2(a)(1)-(5); United States v.
Rodriguez, 60 F.3d 193, 194-95 (5th Cir. 1995). The first of
these criteria is not having more than one criminal history
point. See U.S.S.G. § 5C1.2(a)(1).
The record reflects that Rodriguez-Montes’s 1990 guilty-plea
conviction for theft of property was incorrectly assessed one
criminal history point under U.S.S.G. § 4A1.1(c). Rodriguez-
Montes did not serve any period of imprisonment, and the sentence
was imposed more than 10 years prior to the commencement of the
instant offense. See U.S.S.G. § 4A1.1, comment. (n.3); U.S.S.G.
§ 4A1.2(e)(2). As Rodriguez-Montes had only one criminal history
point and apparently otherwise qualified for the safety-valve
No. 04-30756
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reduction, Rodriguez has shown that counsel was ineffective for
failing to move for such a reduction. Accordingly, Rodriguez-
Montes has shown that reasonable jurists would dispute the
correctness of the district court’s denial of his 28 U.S.C.
§ 2255 motion. We GRANT COA, VACATE the judgment of the district
court, and REMAND the case to the district court for further
proceedings.
COA GRANTED; JUDGMENT VACATED AND CASE REMANDED.