United States v. Gerardo Bejarano-Ramirez

122 F.3d 1074, 1997 U.S. App. LEXIS 29483, 1997 WL 558157

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 5, 1997
• Docket: 97-55105
• Status: Unpublished

Opinion

122 F.3d 1074

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
Gerardo BEJARANO-RAMIREZ, Defendant-Appellant.

No. 97-55105.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 25, 1997.**
Decided Sept. 5, 1997.

Appeal from the United States District Court for the Southern District of California. John S. Rhoades, District Judge, Presiding.

Before SCHROEDER, FERNANDEZ, and RYMER, Circuit Judges.

MEMORANDUM*

Gerardo Bejarano-Ramirez, a federal prisoner, appeals the district: court's denial of his 28 U.S.C. § 2255 motion challenging his 63-month sentence following his guilty plea to possession of cocaine with intent to distribute (21 U.S.C. § 841(a)(1)). Bejarano-Ramirez contends that the district court erred by not retroactively applying the safety valve provision (18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2) under U.S.S.G. § 2D1.1(b)(4) to reduce his base offense level by two points. We have jurisdiction under 28 U.S.C. § 2255. We review de novo, see McMullen v. United States, 98 F.3d 1155, 1156-57 (9th Cir.1996), cert. denied, 117 S.Ct. 2444 (1997), and we affirm.

Bejarano-Ramirez contends that pursuant to Teague v. Lane, 489 U.S. 288, 307 (1989), the safety valve provision is a "new rule" which must be applied retroactively under 28 U.S.C. § 2255. This contention lacks merit because the safety valve provision is not a judicially announced rule of constitutional magnitude, but rather an amendment to the Sentencing Guidelines which does not apply to sentences imposed before September 23, 1994. See 18 U.S.C. § 3553 note (1994) ("The amendment ... shall apply to all sentences imposed on or after the 10th day beginning after the date of enactment of this Act [Sept. 13, 1994]"); see also United States v. Rodriguez-Lopez, 63 F.3d 892, 893 (9th Cir.1995).

Bejarano-Ramirez also contends that even if the safety valve provision is not a new constitutional rule, the district court's failure to apply the amendment retroactively to his sentence violates the laws of the United States. This contention is meritless because the safety valve provision is not retroactive. See Rodriguez-Lopez, 63 F.3d at 893.

AFFIRMED.

** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a); 9th Cir. R. 34-4

* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3