Opinion
No. 3:97-CR-158-P(18), (3:03CV-2388-P).
July 19, 2004
MEMORANDUM OPINION AND ORDER
Before the Court for consideration are Movant Arturo Gurrusquieta-Solache's motion to vacate, set aside or correct the sentence pursuant to 28 U.S.C. § 2255, filed on October 14, 2003, and the government's response, filed on January 12, 2004.
STATEMENT OF THE CASE
Movant was charged in five counts (counts 1, 8, 20, 29, and 30) of a 33-count indictment. A jury found Movant guilty on all five counts on October 28, 1997. On February 11, 1998, this court sentenced him to 240 months imprisonment on count one, to concurrent 36-month terms of imprisonment on each of the following counts to be served consecutively to count 1, and to a ten-year term of supervised release. On direct appeal, the Fifth Circuit remanded the matter for resentencing after determining that Movant had erroneously been held responsible for 1,000 kilograms of marijuana, when the evidence presented at trial and in the presentence report revealed that he was only responsible for 668.15 kilograms. United States v. Robles, et al., No. 98-10110 (5th Cir. Aug. 26, 1999) (unpublished) (Gov't. Appendix at 54). On January 9, 2002, this Court re-sentenced Movant to 120 months imprisonment on count one, to concurrent 36-month terms of confinement on counts 8, 20, 29 and 30, to be served consecutively to count 1, and a four-year term of supervised release. Movant appealed on the basis of Apprendi v. New Jersey, 530 U.S. 466 (2000). The Fifth Circuit affirmed on November 21, 2002. United States v. Gurrusquieta, et al., 2002 WL 31730264, No. 01-11034 (5th Cir. Nov. 21, 2002) (unpublished) (Gov't. Appendix at 72). The Supreme Court denied his petition for a writ of certiorari on March 31, 2003. Gurrusquieta v. United States, 538 U.S. 952(2003).
Thereafter, Movant filed this timely § 2255 motion, challenging the imposition of consecutive terms of imprisonment as violative of the Sentencing Guidelines and the Double Jeopardy Clause. With respect to the Sentencing Guidelines, he alleges (a) consecutive sentences are improper when counts are grouped to determine the punishment range; and (b) the Court misused its authority under U.S.S.G. § 5G1.2(d) in sentencing him to consecutive sentences. (§ 2255 Mot. at 13 and 16). In support of his Double Jeopardy claim, Movant alleges the Court imposed multiple punishment with respect to count 8 of the indictment. (Id. at 21-22).
ANALYSIS
The scope of post-conviction relief pursuant to 28 U.S.C. § 2255 is limited. The statute affords judicial review only for constitutional errors and other issues (1) that could not have been raised on direct appeal and (2) that will result in a miscarriage of justice if left unaddressed. See United States v. Faubion, 19 F.3d 226, 233 (5th Cir. 1994); United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). The statute is restricted to the following narrow range of grounds: 1) constitutional issues, 2) challenges to the district court's jurisdiction to impose the sentence, 3) challenges to the length of a sentence in excess of the statutory maximum, and 4) claims that the sentence is otherwise subject to collateral attack. Before a petitioner may raise a constitutional or jurisdictional issue for the first time in a § 2255 proceeding, he must show "cause" for his procedural default in failing to raise the issue on appeal and "actual prejudice" resulting from the error. United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982);United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991). "If the error is not of constitutional or jurisdictional magnitude, the defendant must show the error would result in a complete miscarriage of justice." Id. at 232 n. 7. This high hurdle ensures that final judgments command respect and that their binding effect is not disturbed by an endless series of post-conviction collateral attacks. Frady, 456 U.S. at 165-166, 102 S.Ct. at 1593.
Movant first challenges the imposition of consecutive terms of imprisonment under the Sentencing Guidelines. A district court's technical application of the Sentencing Guidelines does not give rise to a constitutional issue or other injury cognizable under § 2255. See United States v. Williamson, 183 F.3d 458, 462 (5th Cir. 1999) (citing United States v. Segler, 37 F.3d 1131, 1134 (5th Cir. 1994) (Misapplications of the Sentencing Guidelines fall into neither category and hence are not cognizable in § 2255 motions)); United States v. Cervantes, 132 F.3d 1106, 1109 (5th Cir. 1998) ("Cervantes's claim that the trial judge erred in calculating her sentence is not grounds for section 2255 relief. Technical application of the Sentencing Guidelines does not give rise to constitutional issues."); United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). Determining whether consecutive sentences should be imposed under § 5G1.2 does not implicate any constitutional issues. United States v. Faubion, 19 F.3d 226, 233 (5th Cir. 1994). Moreover, this claim could have been raised on direct appeal. See Vaughn, 955 F.2d at 368 (a nonconstitutional claim that could have been raised on direct appeal, but was not, may not be raised in a collateral proceeding).
With respect to the double jeopardy claim, the Court notes that it also could have been raised on direct appeal. Movant, however, has failed to show any reason for failing to raise this issue previously. He, thus, cannot show cause for his procedural default, and this claim is denied as procedurally barred.
Nevertheless it is clear that Movant's claims under the Sentencing Guidelines and the Double Jeopardy Clause lack any merit. With respect to the Sentencing Guidelines, Movant asserts that his counts were grouped "into two groups" for purposes of determining the applicable offense level. (§ 2255 Mot. at 13). He further asserts that the grouping rendered consecutive terms of imprisonment inapplicable in his case. Specifically, he states that "[h]ad the counts been not grouped [sic] pursuant to U.S.S.G. § 3D1.2(b), Movant could be sentenced consecutively on different counts, but by grouping counts into two groups and selecting the group with the highest offense level for sentencing Movant eliminated the possibility of consecutive sentences and therefore Movant could only be sentenced to one sentence and not consecutive sentences on different counts." (Id.).
The Presentence Report (PSR) reflects the counts were not grouped into two separate groups as Movant asserts. Rather the PSR grouped all counts into one single group to determine the applicable base offense level. See PSR ¶ 43 (Gov't. Appendix under seal at 1-35). The PSR calculated the base offense level for each count. PSR ¶ 44. It concluded that U.S.S.G. § 2D1.1 yielded a base offense level of 28 for count 1, and that count 8 also had a base offense level of 28 because § 2D1.6(a) indicates that the base offense level is determined by the offense level applicable to the underlying offense, which in this case was the offense in count 1. Id. With respect to counts 20, 29, and 30, the PSR determined that U.S.S.G. § 2S1.1 produced a base offense level of 23 for each of those count. Id. Since the base offense level for count I yielded the highest offense level, it was selected as the base offense level for the entire group. Id.
With regard to consecutive terms of imprisonment, the Fifth Circuit has held that U.S.S.G. § 5G1.2(d) requires imposition of consecutive sentences to the extent necessary to meet minimum "total punishment" required by the Sentencing Guidelines when the maximum sentence required by the substantive criminal statute falls short of the minimum sentence required by the applicable Sentencing Guideline Range. See United States v. Garcia, 322 F.3d 842, 845-46 (5th Cir. 2003) (holding, following remand in light of Apprendi, that where statutory maximum for narcotics offender's most serious offense was less than the minimum total punishment required by Sentencing Guidelines, district court had to impose consecutive sentences to extent necessary to meet minimum total punishment required by Guidelines); see also United States v. Humphrey, ___ Fed. Appx. ___, 2004 WL 1059794, *4-5 (10th Cir. May 12, 2004) (unpublished) (affirming re-sentencing of defendant to consecutive terms of imprisonment under § 5G1.2(d) and holding that Apprendi does not forbid imposing consecutive sentences where the counts of conviction each carry a statutory maximum penalty, so long as the sentence for each offense is within the applicable statutory maximum);United States v. Hollins, 97 Fed.Appx. 477, 2004 WL 963250, *1 (5th Cir. May 4, 2004) (unpublished) (reversing defendant's sentence and remanding for application of § 5G1.2(d), which required defendant to be sentenced to the statutory maximum of 180 months on the § 2119(1) count, followed by a consecutive eight-month term on the § 922(g)(1) count, for a total punishment of 188 months); U.S. v. Bijou, 92 Fed.Appx. 966, *967, 2004 WL 771425, **1 (4th Cir. Apr. 13, 2004) (unpublished) (affirming imposition of consecutive terms of imprisonment under § 5G1.2(d) and holding that Apprendi does not forbid imposing consecutive sentences where the counts of conviction each carry a statutory maximum penalty, so long as the sentence for each offense is within the applicable statutory maximum).
The language of § 5G1.2 is "plain" and "mandatory." Humphrey, 2004 WL 1059794, *4-5.
Section 5G1.2 addresses the interplay between statutory maximums and sentences arrived at through application of the Guidelines in sentencing multi-count indictments." Lott, 310 F.3d at 1242. The procedure is the following. The sentencing judge selects the total punishment from within the applicable Guideline range. "[T]he total punishment is the sentence arrived at for all counts through application of the Guidelines, including determination of the base offense levels, application of grouping provisions, and calculation of other adjustments." Id. (quotation omitted). In line with Apprendi, "[t]he district court may not impose a sentence above the statutory maximum for any particular count, but it will be required under § 5G1.2(d) to impose consecutive sentences `to produce a combined sentence equal to the total punishment.' USSG § 5G1.2(d)." Id. at 1243.Id. at *5.
In the instant case, the Guidelines dictated a punishment range from 135 to 168 months, and this Court decided to sentence Movant in the middle of the guideline range at 156 months. See Supplement to PSR at 1, Sentencing Transcript at 14 (Gov't. Appendix at 36-53). Since the statutory maximum sentence for count one (120 months) was less than the minimum sentence of 135 months under the Guidelines, this Court was obligated under the Guidelines to impose consecutive terms of imprisonment in order that Movant receive a sentence within the guideline range. Accordingly, Movant's claims under the Sentencing Guidelines lack any merit.
His double jeopardy claim is likewise meritless. Movant asserts that he "was sentenced twice on count 8 of the indictment" — i.e., first when it was grouped with count 1 to determine the base offense level, and second when a concurrent term of imprisonment was imposed on it. (§ 2255 Mot. at 18 and 21-22). Contrary to Movant's assertion, and as noted previously, count 1 and count 8 were not grouped for purposes of determining the base offense level. Rather a base offense level was determined for each count. Moreover, only one sentence was imposed on count 8.
CONCLUSION
IT IS THEREFORE ORDERED that Movant's motion to vacate, set aside, or correct the sentence pursuant to 28 U.S.C. § 2255 (docket #1496) is DENIED.