United States District Court, W.D. North Carolina, Asheville Division
COGBURN JR. UNITED STATE DISTRICT JUDGE.
MATTER is before the Court on consideration of
Petitioner's pro se Motion to Vacate, Set Aside or
Correct Sentence which is filed pursuant to 28 U.S.C. §
2255. For the reasons that follow, Petitioner's §
2255 Motion to Vacate will be dismissed.
December 30, 2015, Petitioner pleaded guilty pursuant to a
written plea agreement to count one in a bill of indictment
that charged her with conspiracy to possess with intent to
distribute a quantity of methamphetamine. In her plea
agreement, Petitioner acknowledged pursuant to Rule
11(c)(1)(B) of the Federal Rules of Criminal Procedure that
the amount of methamphetamine that was known to or reasonably
foreseeable to her in the conspiracy was 28.3 grams, and that
the amount of “actual” methamphetamine that was
known to or reasonably foreseeable to her was 51.2 grams.
(1:15-cr-00071, Doc. No. 142: Plea Agreement ¶ 7).
Petitioner's presentence report (PSR), the probation
officer adopted the parties' stipulation regarding drug
quantity which resulted in a base offense level of 30 under
§ 2D1.1 of the U.S. Sentencing Guidelines
Manual (USSG). (Id., Doc. No. 213: PSR ¶
9). After applying a three-level reduction for acceptance of
responsibility, Petitioner's total offense level was 25,
and when coupled with a criminal history category of I,
Petitioner's Guidelines range was 57-71 months'
imprisonment, although Petitioner's conviction was
subject to a statutory minimum term of 10-years of
imprisonment under the provisions of 21 U.S.C. §§
841(a)(1) and (b)(1)(A). (Id. ¶ 39).
sentencing, the Court found the PSR credible and reliable and
adopted the findings and conclusions contained therein
without change. The Court further found that Petitioner
qualified for a safety valve variance below the statutory
minimum pursuant to 18 U.S.C. § 3553(f). (Id.,
Doc. No. 252: Judgment; Doc. No. 253: Statement of Reasons).
Petitioner was sentenced to a term of 57-months in prison and
she did not appeal.
STANDARD OF REVIEW
to Rule 4(b) of the Rules Governing Section 2255 Proceedings,
sentencing courts are directed to promptly examine motions to
vacate, along with “any attached exhibits and the
record of prior proceedings” in order to determine
whether a petitioner is entitled to any relief. The Court has
considered the record in this matter and applicable authority
and concludes that this matter can be resolved without an
evidentiary hearing. See Raines v. United States,
423 F.2d 526, 529 (4th Cir. 1970).
collateral proceeding, Petitioner contends she is entitled to
sentencing relief based on Amendment 794 to USSG §
3B1.2. (1:16-cv-00280, Doc. No. 1: Motion to Vacate).
Amendment 794 amended the commentary to § 3B1.2 to
address what the Commission considered was an inconsistent
application of the mitigating role reduction for low-level
offenders. In particular, the amendment added a
non-exhaustive list for the court to consider when
determining whether to apply the guideline and to what
extent. See USSG § 3B1.2 cmt.n.3(C) (2015). The
Commission made the amendment effective for defendants
sentenced on or after November 1, 2015. Petitioner was
sentenced on May 17, 2016, thus she could have been eligible
to benefit from the amended commentary if the facts of her
case supported such a reduction. Petitioner's claim for
sentencing relief will be denied for two reasons.
the Antiterrorism and Effective Death Penalty Act provides,
in relevant part that:
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
28 U.S.C. § 2255(a). Petitioner's claim for
sentencing relief was filed as a motion pursuant to
§2255; however a claim for such relief is not cognizable
in a § 2255 proceeding. In other words, such an error
(1) would clearly not be unconstitutional; (2) would not
affect the court's jurisdiction to impose
Petitioner's sentence; and (3) would not result in a
sentence in excess of the maximum allowed by law, which in
Petitioner's case was life imprisonment on the drug
conspiracy conviction. See, e.g., Whiteside v.
United States, 775 F.3d 180, 184 (4th Cir. 2014) (en
banc) (noting ordinary errors in the guidelines are not
cognizable in § 2255 proceedings), cert.
denied, 135 S.Ct. 2890 (2015); United States v.
Mikalajunas, 186 F.3d 490, 495 (4th Cir.1999);
United States v. Pregent, 190 F.3d 279, 283-84 (4th
Cir. 1999) (requiring “extraordinary
circumstances” to present collateral attack under
Petitioner's argument, even if cognizable in this
collateral proceeding, is plainly without merit, when
considering the evidence presented in the PSR regarding her
extensive involvement in the ...