The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Movant, Sabas Miramontes has filed a 28 U.S.C. § 2255 motion raising one claim with two inconsistent aspects: his attorney(s) were ineffective either with respect to plea advice regarding the applicability of the "safety valve" (exception to mandatory minimum sentence), and/or for not arguing at sentencing, or otherwise convincing the sentencing judge that he would be eligible for the "safety valve," and that such deficient advice renders his plea/sentence unlawful. The claim is internally inconsistent in that Miramontes asserts that his plea attorney was evidently ineffective for convincing him to plead guilty pursuant to a plea bargain where the attorney erroneously believed the safety valve would apply, but that his sentencing attorney was ineffective for not correcting the "error" in the pre-sentence report which, if corrected, would have made application of the safety valve mandatory.
Miramontes has also sought relief on much the same basis as set forth above pursuant to 18 U.S.C. § 3582(c) -- giving the district court the ability to resentence an imposed prison sentence if a defendant's Guidelines range had been subsequently lowered by the Sentencing Commission.
As the following demonstrates, Miramontes is entitled to relief under neither alternative, and under neither statutory basis.*fn1
Miramontes was indicted in a superseding indictment, along with a number of other defendants, on January 24, 2008. He was alleged in Count 1to have conspired to distribute methamphetamine (10 years to life), and in Count 5 for actual distribution (20 year maximum). The case proceeded to trial against some defendants; Miramontes pled guilty on May 9, 2008 pursuant to a plea agreement. Sentencing was continued several times, but on the final date set, September 29, 2008, defense counsel (Shon Northam) indicated that he had incompletely prepared. At Miramontes' request, "new" counsel was appointed (Donald Dorfman) on the subsequent status date (October 6, 2008). Dorfman's appearance was somewhat unusual in that he had initially been Miramontes lawyer and had been replaced by Shon Northam early in the proceedings. Dorfman indicated that he was ready for sentencing that day he was appointed, was familiar with the facts of the case, and had personally advised Miramontes with respect to the sentencing.
Sentencing therefore proceeded on October 6. The primary issue at sentencing involved the use of one prior conviction of DUI (see footnote 2, infra) for Miramontes. It so happened that Miramontes was on court probation for that misdemeanor conviction at the time he committed the federal drug offense. The criminal history was calculated as one point for the DUI, and two points for having committed the sentencing offense while on probation for another offense -- giving him a criminal history category of II. With a Guidelines offense level of 33 and Criminal History II, the Guidelines indicated that the low end of the sentencing range (the plea agreement bound the government to recommend the low end) was 151 months. The Category II criminal history made Miramontes ineligible for the "safety valve," i.e., making it not possible for Miramontes to be sentenced to less than the mandatory minimum ten years. Stymied on not being able to argue for the safety valve, Dorfman sought an overall downward departure for the reason that the criminal history, as calculated, overstated the seriousness of Miramontes' criminal record. The request for departure was denied, and taking into account all pertinent statutory factors for sentencing, Miramontes was ultimately sentenced to 151 months among other terms.
The government does not seek to enforce that provision of the plea agreement in which Miramontes had agreed not to seek recourse to a post-judgment collateral attack. Therefore, the undersigned will turn to the merits.
A. Miramontes' Guidelines Computation Was Correctly Performed Miramontes believed, at least in one portion of his motion, that he was entitled to consideration of a newly enacted amendment to the Sentencing Guidelines which indicated what misdemeanor offenses were to be counted, and which were not. He relies specifically on Amendment 709, effective November 1, 2007, insofar as that amendment was pertinent to § 4A1.2(c).
One prior conviction was counted in Miramontes Guidelines calculation -- a 2006 violation of Cal. Vehicle Code § 23152(b), driving a motor vehicle with a blood alcohol level of .08% or more. Miramontes was sentenced on this misdemeanor to two days jail and three years probation. PSR 49. In California law, the conviction is a misdemeanor with a maximum potential penalty of six months in jail and five years probation. Cal. Vehicle Code §§ 23536, 23568, 23600(b)(1). The pre-sentence report gave Miramontes one point for the conviction and two points for having committed the federal drug offense while on probation; the resultant criminal history category was II. PSR at paras 49-54.
Guidelines 4A1.2(c) provides that misdemeanor and petty offenses are
counted for purposes of calculating criminal history. Certain
exceptions exist: (1) where a defendant received a conviction for
certain listed offenses and received a sentence on the previous
offense [unrelated to the instant offense] of less than 30 days
imprisonment, or probation of one year or less; (2) where the
conviction is for designated minor offenses, e.g., minor traffic
infractions, or similar offenses to those designated. As set forth
above, Miramontes believes that his DUI conviction is a "minor"
traffic offense not countable at all pursuant to § 4A1.2(c)(2).
However, the offense of driving under the influence (DUI)*fn2
is not a minor traffic infraction, nor is it analogous to any
other offenses listed in § 4A1.2(c)(2), nor is it an excepted offense
in § 4A1.2(c)(1), or analogous to one listed.
Convictions for driving while intoxicated or under the influence (and similar offenses by whatever name they are known) are counted. Such offenses are not minor traffic ...