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Fogo v. United States

United States District Court, D. South Carolina, Florence Division

August 8, 2017

Genille Fogo, Petitioner,
v.
United States of America, Respondent. Civil Action No. 4:16-cv-02730-RBH

          ORDER

          R. BRYAN HARWELL UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Petitioner's [ECF No. 204] motion to vacate pursuant to 28 U.S.C. § 2255. Petitioner seeks a two-level reduction in her guideline range under Amendment 794 to the United States Sentencing Guidelines based on her alleged “minor role” in the conspiracy.

         On September 27, 2016, the government filed a response and motion to dismiss arguing that Petitioner waived her right to file a motion to vacate in her plea agreement. For the reasons stated below, the Court grants Respondent's motion to dismiss, dismisses Petitioner's motion to vacate, and dismisses this case with prejudice.[1]

         Procedural History

         On February 29, 2016, Petitioner pled guilty to conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349. The presentence investigation report (“PSR”) prepared by the U.S. Probation Office determined that Petitioner's total offense level of 20 and criminal history category of I produced an advisory guideline range of 33 to 41 months in prison.

         A sentencing hearing was held on June 2, 2016 at which the Court sentenced Petitioner to a 33 month term of imprisonment. Petitioner did not file a direct appeal.

         Petitioner filed the instant motion to vacate on August 4, 2016.

         Applicable Law

         Prisoners in federal custody may attack the validity of their sentences pursuant to 28 U.S.C. § 2255. In order to move the court to vacate, set aside, or correct a sentence under § 2255, a petitioner must prove that one of the following occurred: (1) a sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such a sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). “The writ of habeas corpus and its federal counterpart, 28 U.S.C. § 2255, ‘will not be allowed to do service for an appeal.' (internal citation omitted). For this reason, nonconstitutional claims that could have been raised on appeal, but were not, may not be asserted in collateral proceedings. (internal citations omitted) Even those nonconstitutional claims that could not have been asserted on direct appeal can be raised on collateral review only if the alleged error constituted ‘a fundamental defect which inherently results in a complete miscarriage of justice'”. Stone v. Powell, 428 U.S. 465, n. 10 (1976); see also United States v. Boyd, No. 02-6242, 2002 WL 1932522, at *1 (4th Cir Aug. 22, 2002) (“Non-constitutional claims that could have been raised on direct appeal . . . may not be raised in a collateral proceeding under § 2255.”).

         Discussion

         Petitioner argues that under Amendment 794 to the United States Sentencing Guidelines, she should have received a two-level reduction in her guideline range based on her alleged “minor role” in the conspiracy. Amendment 794, which became effective on November 1, 2015, revised the commentary to U.S.S.G. § 3B1.2 (mitigating role adjustments) and clarified the criteria regarding a defendant's eligibility for a mitigating role adjustment. Amendment 794 was in effect at the time Petitioner was sentenced. The PSR determined that Petitioner was not entitled to any role adjustments. Petitioner did not object to the PSR at sentencing and did not move for a downward departure or variance based on her alleged “minor role.”

         The government argues that Petitioner's motion to vacate should be dismissed because Petitioner waived her right to file a motion to vacate in her plea agreement.

         The plea agreement contained an appeal/2255 waiver which stated:

The Defendant is aware that 18 U.S.C. § 3742 and 28 U.S.C. § 2255 afford every defendant certain rights to contest a conviction and/or sentence. Acknowledging those rights, the Defendant, in exchange for the concessions made by the Government in this Plea Agreement, waives the right to contest either the conviction or the sentence in any direct appeal or post-conviction action, including any proceedings under 28 U.S.C. § 2255. (This waiver does not apply ...

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