United States District Court, D. South Carolina, Orangeburg Division
ORDER AND OPINION
MARGARET B. SEYMOUR, Senior District Judge.
Rafael Rio-Villanueva ("Movant") seeks to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
I. Factual and Procedural Background
On March 16, 2011, a grand jury returned a superseding indictment against Movant charging him with two counts of violating federal drug laws. The charges included conspiracy in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846 (Count 1) and possession of cocaine with the intent to distribute in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2 (Count 2). ECF No. 96. Pursuant to a written plea agreement, Movant pleaded guilty on August 23, 2012, to Count 1. ECF Nos. 156-58.
Relevant to the within § 2255 motion, the plea agreement contained cooperation provisions, including a provision in which Movant agreed to submit to a polygraph examination and agreed that "his refusal to take or his failure to pass any such polygraph examination to the Government's satisfaction will result, at the Government's sole discretion, in the obligations of the Government within the Agreement becoming null and void." ECF No. 156 at ¶ 9. If Movant cooperated pursuant to the terms of the plea agreement and the cooperation was deemed by the Government as providing substantial assistance, the Government agreed to move the court for a downward departure or a reduction of sentence pursuant to U.S.S.G. § 5K1.1, 18 U.S.C. § 3553(e), or Federal Rule of Criminal Procedure 35(b). Id. at 6, ¶ 11. Additionally, "in exchange for the concessions made by the Government in [the Plea Agreement], " Movant waived "his right of direct appeal only in the event that he receives a sentence of less than life imprisonment." Id. at 9-10, ¶ 15. He further waived "the right to contest either the conviction or the sentence in any post-conviction action, including any proceedings under 28 U.S.C. § 2255, " with the exception of claims of ineffective assistance of counsel or prosecutorial misconduct. Id. at 9-10, ¶ 15.
A presentence investigation report was prepared by the U.S. Probation Office. In the report, Movant was held accountable for 2, 956.02 kilograms of marijuana equivalent. Movant's criminal history category under the U.S. Sentencing Guidelines was calculated to be III. His base offense level was 32. Movant received a two-level enhancement for possessing a firearm. He received a three-level reduction for acceptance of responsibility. Movant's Sentencing Guidelines range was 135 to 169 months incarceration. ECF No. 235.
The court held a sentencing hearing on November 29, 2012. ECF No. 269. At the hearing, the Government moved to hold Movant in breach of his proffer agreement because Movant failed a polygraph examination. ECF Nos. 267 & 269. The court granted the Government's motion. ECF No. 308. The court determined that Movant should be held accountable for twenty-one kilograms of cocaine, which made for a total adjusted offense level 36 and a criminal history category of III. ECF No. 308 at 101. The court declined to give Movant a three-level reduction for acceptance of responsibility. Id. After these determinations, Movant's Guidelines range was 235 to 293 months imprisonment. Id. The court sentenced Movant to 235 months imprisonment. ECF No. 274.
On December 7, 2012, Movant filed a notice of appeal. ECF No. 277. On appeal, Movant argued that the district court erred by holding Movant in breach of his plea agreement, that the Government had breached its obligation under the plea agreement to move for a reduced sentence, and that trial counsel had been ineffective for failing to argue for a lesser sentence. ECF No. 359-1 (citing Movant's appellate brief). On the Government's motion, the Court of Appeals for the Fourth Circuit dismissed Movant's appeal after concluding that Movant "knowingly and voluntarily waived his right to appeal his sentence" and that the issues Movant raised on appeal fell "squarely within the compass of the valid and enforceable appeal wavier." United States v. Rios-Villanueva, No. 12-4998 (4th Cir. Oct. 28, 2013) (ECF No. 347). The Fourth Circuit went on to note:
We further reject [Movant's] argument that the appeal waiver is not enforceable because the Government breached the plea agreement by voiding its sentencing obligations in the agreement in response to his nonmaterial breach [i.e. failing the polygraph exam]. Contrary to [Movant's] assertions, no provision in the agreement required the presence of a "material" breach before the Government could void its sentencing obligations. Because the Government should not be saddled with obligations it did not undertake, we decline to transform the plea agreement's silence on this point into a requirement that only a "material" breach by Rios authorized the Government to void its sentencing obligation.
Id. On November 18, 2013, the Fourth Circuit issued its mandate and judgment. ECF No. 348.
On August 11, 2014, Movant filed the within § 2255 motion. ECF No. 350. On September 11, 2014, the Government filed a motion to dismiss or, in the alternative, for summary judgment. ECF No. 359. Movant, who is represented by counsel, did not file a reply. Movant couches most of his § 2255 motion as a claim for relief on the basis of prosecutorial misconduct. Movant first argues that the claim is not barred by the waiver provision of the plea agreement because it is a prosecutorial misconduct claim, and then goes on to argue-returning to the materiality argument raised previously before the Fourth Circuit-that the prosecutors engaged in misconduct when the Government refused to make any sort of motion for a reduced sentence. In addition to his claim of prosecutorial misconduct, Movant also argues that "the District Court erred by not granting [Movant] an acceptance of responsibility adjustment" to his offense level pursuant to U.S.S.G. § 3E1.1(a), (b).
The Government asks the court to dismiss the § 2255 motion. With respect to the claim of prosecutorial misconduct, the Government argues that the Fourth Circuit already determined this issue and that reconsideration of it during a collateral-attack proceeding is barred by the mandate rule. With respect to Movant's claim regarding the court's application of the sentencing guidelines, the Government argues that any challenge to the sentence imposed is barred by Movant's waiver of his § 2255 rights except with regard to claims of ineffective assistance of counsel or prosecutorial misconduct. For the reasons below, the court agrees with the Government that Movant's claims are not cognizable on collateral review and, therefore, dismisses Movant's § 2255 motion.
A federal prisoner in custody may challenge the fact or length of his detention by filing a motion pursuant to 28 U.S.C. § 2255. To receive relief under § 2255, a movant is required to prove by a preponderance of the evidence that his 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. 28 U.S.C. § 2255(a). If this showing is made, the court must "vacate and set the judgment aside" and "discharge the prisoner or resentence him or grant a new trial to correct the sentence as may appear appropriate." Id. § 2255(b). If, on the other hand, "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, " the court may summarily deny the motion ...