United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney, Chief United States District Judge
MATTER is before the Court on Petitioner's
Motion to Vacate, Set Aside or Correct Sentence under 28
U.S.C. § 2255, (Doc. No. 1), and on the Government's
Motion to Dismiss, (Doc. No. 5).
Petitioner Mario Alberto Quiroz-Galvez was involved in a
drug-trafficking conspiracy that imported cocaine from
California to distribute in North Carolina. (Crim. Case No.
3:16-cr-161-FDW-DCK-3, Doc. No. 53 at ¶¶ 12, 18,
20, 22: PSR). Following his participation in a transaction
involving over 15 kilograms of cocaine, Petitioner was
arrested in June 2016. (Id. at ¶¶ 18, 22).
He had met with the drug supplier and an undercover officer,
and, after his arrest, he admitted that he had received
instructions regarding where to direct the tractor-trailer
carrying the cocaine to go. (Id. at ¶¶ 12,
was charged with conspiracy to distribute and to possess with
intent to distribute cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(C), 846 (Count One) and aiding
and abetting possession with intent to distribute cocaine, in
violation of § 21 U.S.C. § 841(a)(1), 18 U.S.C.
§ 2 (Count Two). (Id., Doc. No. 16:
Indictment). He agreed to plead guilty to Count One.
(Id., Doc. No. 40 at ¶ 1: Plea Agrmt.). In
exchange, the Government agreed to dismiss Count Two.
(Id. at ¶ 2). As part of Petitioner's plea
agreement, the parties agreed that he was responsible for
more than 15 kilograms, but less than 50 kilograms, of
cocaine; that he could argue for application of the
safety-valve adjustment; that he should receive a three-level
reduction for acceptance of responsibility; and that the
Government would not oppose a sentence at the bottom of the
applicable guidelines range. (Id. at ¶ 8).
Petitioner also agreed to waive the right to contest his
conviction or sentence on direct appeal or in any
post-conviction proceeding, with the exception of claims of
ineffective assistance of counsel or prosecutorial
misconduct. (Id. at ¶¶ 19-20). Petitioner
also recognized as part of the plea agreement that he
understood that pleading guilty might have consequences with
respect to his immigration status. (Id. at ¶
plea hearing, Petitioner affirmed that: he understood the
charges and applicable penalties; his attorney had advised
him that he might be deported as a result of pleading guilty;
he had discussed the sentencing guidelines with his attorney
and understood that he could receive a sentence higher or
lower than those guidelines and that if he received a higher
sentence than he anticipated, he would still be bound by his
plea; and that he understood and agreed with the terms of his
plea agreement. (Id., Doc. No. 41: Acceptance and
Entry of Guilty Plea). Additionally, Petitioner testified
that he understood and agreed to the waiver of his right to
challenge his conviction or sentence on appeal or in any
post-conviction proceeding; that no one had made any promises
or threats to induce him to plead guilty; and that he was
satisfied with his attorney's services, stating,
“He's an excellent attorney.” (Id.
at 3). The magistrate judge found that Petitioner's
guilty plea was knowingly and voluntarily made and
recommended that this Court accept it. (Id. at 4).
probation officer prepared a presentence report, recommending
that Petitioner's base offense level was 32, based on the
quantity of drugs involved in the offense, and that he should
receive a two-level reduction under U.S.S.G. § 5C1.2, as
well as a three-level reduction for acceptance of
responsibility, for a total offense level of 27.
(Id., Doc. No. 53 at ¶¶ 28-29, 35-37).
Because Petitioner had no prior criminal history, his
criminal history category was I. (Id. at ¶ 42).
The advisory guidelines range was 70-87 months of
imprisonment. (Id. at ¶ 61). This Court
ultimately sentenced Petitioner to 37 months of imprisonment.
See (Id., Doc. No. 57: Judgment, Doc. No.
did not appeal. Instead, he filed the pending, timely motion
to vacate on April 18, 2017, placing the motion in the prison
system for mailing on April 12, 2017. See (Civ. Doc.
No. 3). In his motion to vacate, Petitioner argues that this
Court erred by not downwardly departing at sentencing based
on his status as a deportable alien and that, once he
finishes serving his sentence, he will be illegally held
without bail. (Id. at 4-5). The Government filed its
response and motion to dismiss on August 4, 2017, arguing
that this action should be dismissed because Petitioner's
sentencing claim is waived, procedurally barred, and without
merit, and his illegal detention claim is not ripe for review
and does not present a justiciable issue. (Doc. No. 5). On
August 14, 2017, this Court issued an order giving Petitioner
notice of his right to respond to the Government's motion
to dismiss. (Doc. No. 6). Petitioner has not filed a
response, and the time to do so has passed. Therefore, this
matter is ripe for disposition.
STANDARD OF REVIEW
4(b) of the Rules Governing Section 2255 Proceedings provides
that courts are to promptly examine motions to vacate, along
with “any attached exhibits and the record of prior
proceedings . . .” in order to determine whether the
petitioner is entitled to any relief on the claims set forth
therein. After examining the record in this matter, the Court
finds that the arguments presented by Petitioner can be
resolved without an evidentiary hearing based on the record
and governing case law. See Raines v. United States,
423 F.2d 526, 529 (4th Cir. 1970).
Court will grant the Government's motion to dismiss for
several reasons. First, Petitioner waived the right to
challenge his sentence as part of his plea agreement. A
knowing and voluntary waiver of the right to pursue
post-conviction relief is enforceable. See United States
v. Lemaster, 403 F.3d 216, 220 (4th Cir. 2005). The
record shows that Petitioner knowingly and voluntarily agreed
to the waiver provision in his plea agreement, and he does
not challenge its validity in his Section 2255 motion.
Accordingly, this claim will be dismissed as barred by the
waiver in Petitioner's plea agreement. See
Lemaster, 403 F.3d at 220.
the sentencing claim also is procedurally barred because
Petitioner did not appeal this issue. A Section 2255 motion
is not a substitute for a direct appeal. See United
States v. Frady, 456 U.S. 152, 165 (1982). Claims of
error that could have been raised on direct appeal, but were
not, are procedurally barred unless the petitioner shows both
cause for the default and actual prejudice, or demonstrates
that he is actually innocent of the offense. See Bousley
v. United States, 523 U.S. 614, 621-22 (1998);
United States v. Bowman, 267 F. App'x 296, 299
(4th Cir. 2008). Petitioner has not alleged cause or
prejudice for his failure to raise this issue on appeal, nor
has he shown that he is factually innocent of the underlying
drug offense. Therefore, this claim also is procedurally
barred. See Bousley, 523 U.S. at 621-22.
the mere misinterpretation or application of a guideline
provision generally does not amount to a miscarriage of
justice that warrants relief under § 2255.”
United States v. Mikalajunas, 186 F.3d 490, 496-97
(4th Cir. 1999). Here, there was no misapplication of the
guidelines. Although the Court could have, in its discretion,
departed based on Petitioner's status as a deportable
alien, the Court's decision not to depart on this basis
is not reviewable in a Section 2255 motion to vacate. See
United States v. Saadvandi, 10 F. App'x 104, 106
(4th Cir. 2001) (recognizing a district court's decision
not to ...