Opinion
99 Civ. 3495 (JGK), 98 Cr. 187 (SB).
April 20, 2000.
OPINION AND ORDER
Ricardo Kevin Joseph, appearing pro se, brings this petition pursuant to 28 U.S.C. § 2255 to reduce the sentence imposed following his conviction, pursuant to his guilty plea, for illegally reentering the United States in violation of 8 U.S.C. § 1326(a) and (b)(2). For the reasons set forth below, the petition is dismissed.
I.
On May 6, 1998 the petitioner pleaded guilty to a one-count indictment which charged him as an alien with having reentered the United States without the consent of the Attorney General after he had been arrested and deported following a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). Prior to his sentencing, the petitioner, represented by the Federal Defender Division of the Legal Aid Society, requested a downward departure based on his stipulation to deportation and the argument that the aggravated felony enhancement allegedly overstated the seriousness of the aggravated felony at issue; the petitioner also relied on certain mitigating circumstances to argue for a sentence at the low end of the sentencing guideline range. (See Letters dated July 10, 1998, Aug. 20, 1998 Sept. 1, 1998, attached as Exhs. D, F H to Aff. of Jay K. Musoff dated July 16, 1999 ("Musoff Aff.).) The government opposed these requests. (See Letters dated July 23, 1998 Aug. 28, 1998, attached as Exhs. E G to Musoff Aff.) At the sentencing hearing on September 14, 1998, the petitioner's counsel again sought a sentence at the low-end of the applicable sentencing range. (See Transcript dated Jan. 22, 1999, at 5.)
In sentencing the petitioner, Judge Sotomayor downwardly departed one offense level, from offense level 21 to offense level 20, based on the defendant's consent to deportation, pursuant to Section 5K2.0 of the Sentencing Guidelines (the "Guidelines"); the court denied the petitioner's request for any additional downward departure. (See id. at 6.) The court then sentenced the petitioner at the bottom of the applicable Guidelines range. (See id. at 6-8.) The court sentenced the petitioner principally to 41 months imprisonment to be followed by a three-year term of supervised release. (See id. at 7.) The court also advised the petitioner of his right to appeal. See id. at 8-9.) The petitioner did not file an appeal.
II.
The petitioner argues that his sentence should be reduced on two grounds: first, that he is entitled to a downward departure because, as a result of his alien status, the Bureau of Prisons has designated a facility in which he is able to accrue less good time for work than he would in other facilities; second, that he is entitled to a reduction in his sentence because of his willingness to depart the United States upon the completion of his sentence.
The government argues correctly that the petition must be dismissed because both of these claims are defaulted. It is well established that if a petitioner fails to raise a claim on direct appeal, the petitioner is barred from raising the claim in a subsequent § 2255 proceeding unless the petitioner can establish both cause for the procedural default and actual prejudice resulting therefrom. See Douglas v. United States, 13 F.3d 43, 46 (2d Cir. 1993). The petitioner, who did not raise either claim on appeal, has made no showing at all of any cause for his procedural default.
Nor has the petitioner made any showing of actual prejudice. Indeed, the claims raised in the petition are without merit. The petitioner is not entitled to a reduction in his sentence because, on the basis of the petitioner's alien status, the Bureau of Prisons may designate a facility where he is able to accrue less good time. The Court of Appeals has made clear that a restriction of this nature with respect to the assignment of aliens to facilities by the Bureau of Prisons is not a permissible grounds for a departure under the Guidelines. See United States v. Restrepo, 999 F.2d 640, 645-46 (2d Cir. 1993);see also United States v. Adubofour, 999 F.2d 639, 640 (2d Cir. 1993) (per curiam); United States v. Londono-Cardona, 1996 WL 19225, *2 (E.D.N.Y. Jan. 2, 1996); Rivera v. United States, 893 F. Supp. 1238, 1244 (S.D.N.Y. 1995). Because the petitioner is not entitled to relief on this basis, he has not been prejudiced by his failure to raise the issue on appeal.
As to the petitioner's second claim, the record makes clear that the sentencing court granted the petitioner's request for a one-point downward departure based on his consent to deportation, and his sentence was reduced accordingly. (See Transcript dated Jan. 22, 1999, at 6-8.) The claim is therefore moot. To the extent that the petitioner seeks an additional departure on this ground, there is also no basis for relief. The decision to downwardly depart is committed to the discretion of the court and subject to review only for abuse of discretion. See, e.g., Koon v. United States, 518 U.S. 81, 98 (1996); United States v. Livoti, 196 F.3d 322, 328 (2d Cir. 1999), petition for cert. filed, 68 U.S.L.W. 3535 (Feb. 3, 2000) (No. 99-1344). Where the sentencing court properly recognizes its authority to depart, its decision refusing to do so is not subject to review. See United States v. Maria, 186 F.3d 65, 68 n. 2 (2d Cir. 1999) (citingUnited States v. Brown, 98 F.3d 690, 692 (2d Cir. 1996)). Consequently, where the sentencing court grants a departure, the extent of the departure is not reviewable unless the departure was made in violation of law or as a result of the misapplication of the Guidelines. See United States v. Moe, 65 F.3d 245, 251 (2d Cir. 1995). Here, the sentencing court recognized its authority to depart downward on the basis of the petitioner's consent to deportation and the court granted a departure on this basis. The extent of that departure is therefore not reviewable. In any event, the extent of the departure granted was a reasonable exercise of the district court's discretion. Since the petitioner is therefore not entitled to relief on this basis, he was not prejudiced by his failure to raise the issue on appeal.
Accordingly, because the petitioner has shown neither cause for his failure to raise the claims he asserts in the present petition on direct appeal, nor prejudice from that default, the petition must be dismissed.
III.
The government also argues correctly that the petition must be dismissed because even if the claims were not defaulted, neither claim is cognizable on a section 2255 motion. This is an alternative basis for dismissing the petition. "The grounds provided in section 2255 for collateral attack on a final judgment in a federal criminal case are narrowly limited, and it has `long been settled law that an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment.'" Napoli v. United States, 32 F.3d 31, 35 (2d Cir. 1994) (quoting United States v. Addonizio, 442 U.S. 178, 184 (1979)). "[A] collateral attack on a final judgment in a criminal case is generally available under § 2255 only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes `a fundamental defect which inherently results in complete miscarriage of justice.'" United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). "Insofar as claims regarding a sentencing court's error in failing to properly apply the Sentencing Guidelines are neither consitutional nor jurisdictional, . . . absent a complete miscarriage of justice, such claims will not be considered on a § 2255 motion where the defendant failed to raise them on direct appeal." Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996).
Here, the petitioner's claims pertain solely to the sentencing court's application of the Guidelines. There was also no error resulting in a miscarriage of justice because the sentence the petitioner received was a reasonable exercise of the sentencing court's discretion and the petitioner's claims challenging his sentence are without merit. The petitioner's claims are, therefore, not cognizable on the present motion. See id. The petition is therefore also dismissed on this basis.
CONCLUSION
For the reasons explained above, the petition to reduce the sentence is dismissed. The Court declines to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c) because the petitioner has failed to make a substantial showing of the denial of a constitutional right. The Clerk is directed to close this case.
SO ORDERED. Dated: New York, New York
4/18/00