Opinion
Criminal Action NO. 00-10
October 11, 2001
ORDER AND REASONS
Before the Court is petitioner Doris Espinola's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. For the following reasons, the petitioner's motion is DENIED.
BACKGROUND
On May 17, 2000, petitioner Doris Espinola pled guilty to possession of heroin with the intent to distribute, in violation of 21 U.S.C. § 841 (a)(1). At sentencing Espinola objected to the Court's finding that she possessed 743 grams of heroin. She contended that she possessed approximately 500 grams and thought she would be sentenced for that amount. The Court rejected Espinola's objection on the grounds that (1) she had signed and agreed with a factual basis which stated the total amount of heroin seized was 743 grams and (2) she was responsible for the heroin possessed by her coconspirators. Accordingly, Espinola was sentenced to 57 months incarceration and five years supervised release. She did not appeal the conviction or sentence. On June 19, 2001, Espinola filed the instant motion to correct her sentence, contending that the Court misapplied the sentencing guidelines.
LAW AND ANALYSIS
Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice. See United States v. Segler, 37 F.3d 1131, 1133 (5th Cir. 1994). In the instant petition, Espinola seeks relief for an alleged error in her guideline calculation. However, the Fifth Circuit has held that "[a] district court's calculation under or application of the sentencing guidelines standing alone is not the type of error cognizable under section 2255." United States v. Walker, 68 F.3d 931, 934 (5th Cir. 1995), cert. denied, 516 U.S. 1165 (1996); see also United States v. Williamson, 183 F.3d 458, 462 (5th Cir. 1999) (holding that misapplications of the sentencing guidelines are not cognizable in § 2255 motions). Accordingly, Espinola has no claim for relief under § 2255.
Even if she had a claim, Espinola would be barred from raising it by her plea agreement, in which she expressly waived her right to contest her sentence except as to any punishment imposed in excess of the statutory maximum or any punishment that constitutes an upward departure. The Fifth Circuit has held that a waiver of post-conviction relief is valid if it is informed and voluntary. See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). At Espinola's rearraignment, the Court ensured that she understood her plea agreement and voluntarily accepted it. Accordingly, Espinola has waived her right to bring the instant petition.
Although it is not required to reach the merits of Espinola's claim, the Court does not find a sentencing error. Espinola was sentenced under U.S.S.G. § 1B1.3(a)(1)(B), which provides that, in the case of jointly undertaken criminal activity, the base offense level is determined on the basis of "all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity." See id. Whether or not Espinola actually carried 500 grams of heroin is irrelevant to her sentence because she was responsible for the entire 743 grams involved in the conspiracy. Moreover, even if Espinola had been sentenced for possession with intent to distribute 500 grams of heroin, her 57 month sentence would be within the guideline range for that amount.
CONCLUSION
For the reasons given above, the Court finds (1) that Espinola's petition is not cognizable under 28 U.S.C. § 2255, (2) that by her plea agreement she has waived her right to contest her sentence, and (3) that her sentence was in fact properly calculated. Accordingly, IT IS ORDERED that petitioner Doris Espinola's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence is DENIED.