United States of America, Plaintiff-appellee, v. Gerardo Bejarano-ramirez, Defendant-appellant, 122 F.3d 1074 (9th Cir. 1997)

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.