United States District Court, D. South Carolina, Florence Division
BRYAN HARWELL UNITED STATES DISTRICT JUDGE
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
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.
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
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.
filed the instant motion to vacate on August 4, 2016.
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.”).
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
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.
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 ...