1

The district court sentenced Rios under the 2004 Sentencing Guidelines.

Section 2D1.1(b)(7) was renumbered in the 2006 Guidelines at § 2D1.1(b)(9). 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 06-3704

___________

Gabriel Rios, *

*

Petitioner-Appellant, * Appeal from the United States

* District Court for the 

v. * District of Minnesota.

*

United States of America, * [UNPUBLISHED]

*

Respondent-Appellee. *

___________

Submitted: April 3, 2007

Filed: April 26, 2007

___________

Before BYE, BRIGHT, and RILEY, Circuit Judges.

___________

PER CURIAM.

Gabriel Rios filed a motion seeking relief under 28 U.S.C. § 2255 for

ineffective assistance of counsel because his attorney may have failed to arrange a

proffer meeting with the Government to discuss Rios’s eligibility for the “safety

valve” sentencing provisions of U.S.S.G. §§ 5C1.2(a)(5) and 2D1.1(b)(7) (2004)1

.
2

The Honorable Donovan Frank, United States District Judge for the District

of Minnesota.

3

Section 5C1.2(a) of the Sentencing Guidelines states, in part:

the court shall impose a sentence in accordance with the applicable

guidelines without regard to any statutory minimum sentence, if the

court finds that the defendant meets the criteria in 18 U.S.C. §

3553(f)(1)-(5) set forth below: 

(1) the defendant does not have more than 1 criminal history point, .

. . ; 

(2) the defendant did not use violence or credible threats of violence

or possess a firearm or other dangerous weapon (or induce another

participant to do so) in connection with the offense; 

(3) the offense did not result in death or serious bodily injury to any

person; 

-2-

The district court2

 denied Rios’s motion without a hearing, but granted a certificate

of appealability. We affirm the district court’s denial of § 2255 relief.

A jury convicted Gabriel Rios of conspiring to possess with the intent to

distribute methamphetamine, aiding and abetting possession with intent to distribute

methamphetamine, and distributing methamphetamine. At trial, Rios testified in his

own defense. He admitted he orchestrated a meeting between a potential buyer and

seller of methamphetamine, attended the exchange, and accepted a three hundred

dollar cut from the buyer in the transaction. He defended his role by explaining that

he was only attempting to connect a buyer and seller. 

A probation officer calculated Rios’s base offense level at 36, with a sentencing

guideline range of 188-235 months of imprisonment. The presentence report noted

Rios’s possible qualification for the “safety valve” provisions of U.S.S.G. §§

5C1.2(a)(5) and 2D1.1(b)(7):3

 “The defendant has no criminal history points. Should
(4) the defendant was not an organizer, leader, manager, or supervisor

of others in the offense, . . . ; and 

(5) not later than the time of the sentencing hearing, the defendant

has truthfully provided to the Government all information and

evidence the defendant has concerning the offense or offenses that

were part of the same course of conduct or of a common scheme

or plan, but the fact that the defendant has no relevant or useful

other information to provide or that the Government is already

aware of the information shall not preclude a determination by

the court that the defendant has complied with this requirement.”

(Emphasis added.) Section 2D1.1(b)(7) of the 2004 Sentencing Guidelines provides,

“[i]f the defendant meets the criteria set forth in subdivisions (1)-(5) of subsection (a)

of §5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain

Cases), decrease by 2 levels.”

3

the Government accept a proffer from the defendant, he would be eligible for a 2-level

reduction, according to § 5C1.2(a)(5) (Limitation on Applicability of Statutory

Minimum Sentences in Certain Cases) and § 2D1.1(b)(7).” Report at ¶ 26. Yet there

is no indication in the record that defense counsel attempted to arrange for Rios to

make a proffer to the Government. 

At sentencing, the district court sentenced Rios to 120 months of imprisonment,

the mandatory minimum and a 36% departure from the low end of his Sentencing

Guidelines range. The district court stated: “I do not want to leave the impression

that but for the mandatory minimum, I would have dropped to 84 months or

something less than that, because I believe on all of the factors before me that that is

a fair and reasonable sentence.” 

Rios filed a motion to vacate his sentence under 28 U.S.C. § 2255 for

ineffective assistance of counsel. He asserted that his attorney failed to notify him of

the proffer opportunity or request a proffer meeting to satisfy the “safety valve”
4

“[This court] review[s] the decision to deny such a hearing for abuse of

discretion. That standard is somewhat misleading, however, because review of the

determination that no hearing was required obligates [the court] to look behind that

discretionary decision to the court's rejection of the claim on its merits, which is a

legal conclusion that we review de novo.” United States v. Saunders, 236 F.3d 950,

952 (8th Cir. 2001). 

4

requirements. He argued that but for his counsel’s failure to arrange for the proffer,

his guideline range would have been 151-188 months (base offense level of 34) and

the district court would have similarly departed 36% from the lowest end of the range,

avoiding the statutory minimum and sentencing him to 97 months’ imprisonment.

The district court denied Rios’s motion without a hearing because he failed to

establish counsel was ineffective for failing to schedule a proffer meeting with the

Government or that Rios would have proffered if given the opportunity. 

This court reviews de novo the district court’s denial of Rios’s § 2255 motion

without an evidentiary hearing. See Buster v. United States, 447 F.3d 1130, 1132 (8th

Cir. 2006).4

 The denial of a § 2255 motion without an evidentiary hearing will be

affirmed “only if the motion, files, and record conclusively show the movant is not

entitled to relief.” Id. The district court did not err in dismissing Rios’s § 2255

motion without a hearing if (1) his “allegations, accepted as true, would not entitle”

him to relief, or “(2) the allegations cannot be accepted as true because they are

contradicted by the record, inherently incredible, or conclusions rather than statements

of fact.” Id. (quoting Sanders v. United States, 341 F.3d 720, 722 (8th Cir. 2003)). 

In order to successfully challenge his sentence under § 2255, Rios must satisfy

the test enunciated in Strickland v. Washington, 466 U.S. 668, 693 (1984): he must

demonstrate that his "counsel's representation fell below an objective standard of

reasonableness" resulting in prejudice. In an attempt to satisfy the first prong of

Strickland, Rios maintains that his counsel never informed him of his eligibility for

“safety valve” reduction. Rios presented no affidavit to support his assertion. Even

accepting his allegations as true, we are not persuaded that counsel’s representation
5

in this case rose to the level of constitutionally deficient performance. Given Rios’s

testimony at trial, his counsel reasonably could have determined that Rios could not

successfully fulfill the “safety valve” requirement that Rios provide a truthful proffer.

In addition, even if failure to notify Rios of his proffer opportunity in these

circumstances constituted unreasonable representation, Rios has not met the prejudice

prong of Strickland. Rios must be able to show with reasonable probability that but

for the deficient representation, the result of his sentencing would have been different.

See United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). He argues that he

would have received an additional two-year reduction to his sentence. The district

court, however, explicitly stated when sentencing Rios below his Sentencing

Guidelines range: “I do not want to leave the impression that but for the mandatory

minimum, I would have dropped to 84 months or something less than that, because

I believe on all of the factors before me that that is a fair and reasonable sentence.”

There is no indication that the district judge would have further reduced Rios’s

sentence had the statutory minimum not applied or had his base offense level been 34

with an imprisonment range of 155-188 months. Rios has not demonstrated that but

for counsel’s failure to arrange a proffer with the Government, he probably would

have received a lesser sentence.

For the reasons set forth above, we affirm the district court’s denial of relief.

______________________________