Opinion
Civil Case Number 02-10075-BC, Criminal Case Number 99-20018-8.
April 22, 2002
ORDER SUMMARILY DISMISSING MOTION TO CORRECT SENTENCE
On March 15, 2002, the petitioner filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Rule 4(b), Rules Governing Section 2255 Proceedings requires the Court to screen the petition to determine whether the petitioner is plainly not entitled to relief. Here, the petitioner alleges that he is entitled to relief because he was found guilty by the jury for possessing less heroin than was attributed to him for sentencing purposes.
The petitioner is plainly not entitled to relief. First, the petitioner was actually assigned an offense level of 36 by the probation officer; in lieu of that finding, however, the parties stipulated to the defendant's base offense level as 26. The petitioner did not appeal the Court's acceptance of that stipulation, and has not shown excusable "cause" for his failure to contest the stipulation at the time it was presented to the Court. See Elzy v. United States, 205 F.3d 882, 884 (6th Cir. 2000).
Even if the claim had been properly been preserved, however, the petitioner's claim lacks merit. Although it is true that the jury only convicted the petitioner of possessing less than 100 grams of heroin, the petitioner is liable under the Sentencing Guidelines for all "reasonably foreseeable acts . . . in furtherance of the jointly undertaken activity," which here was the drug conspiracy in which the jury found the petitioner to be a participant. See U.S.S.G. 1B1.3(a)(1)(B). By attributing these other amounts to the petitioner as well, the presentence report indicated that the proper sentence for the petitioner would actually have been between 188 and 235 months pursuant to a base level calculation of 36. The parties, however, stipulated to a lower base offense level of 26, and the petitioner was therefore given a much-reduced sentence of 65 months.
The petitioner has shown no good cause for failing to challenge his stipulated base offense level of 26 either at sentencing or on direct appeal. Furthermore, the Court finds that the petitioner was correctly attributed drug amounts that were foreseeably possessed by the petitioner's co-conspirators.
Accordingly, it is ORDERED that the petitioner's Motion to Vacate, Set Aside, or Correct Sentence [dkt #1] is DENIED.