Opinion
Nos. 4:03-CR-100-A, 4:05-CV-110-A.
March 10, 2005
ORDER
Came on for consideration the motion of Lloyd Jordan ("Jordan") to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Having reviewed the motion, the record, and applicable authorities, the court concludes it should be denied.
I. Background
On April 1, 2003, Jordan was named in a one-count information charging him with possession with intent to distribute less than 50 kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1). At the arraignment held on April 11, 2003, he waived his right to an indictment and pleaded guilty to count 1 of the information. On August 22, 2003, the court sentenced Jordan to 60 months of imprisonment (the statutory maximum) and three years of supervised release, and it ordered him to pay a fine of $40,000 and a special assessment of $100.
II. Grounds of the Motion
Jordan asserts two grounds for relief. First, he argues, based on United States v. Booker, 125 S. Ct. 738 (2005), that "Movant's Sixth Amendment Constitutional right was violated when the [c]ourt upwardly adjusted Movant's total offense level and sentence for facts that were not reflected in a guilty verdict or admitted to by the defendant." Mot. at 7; see Mem. Supp. Mot. at 7-14. Second, Jordan argues that "[t]he [c]ourt's decision to deny Movant a three-point downward departure adjustment for acceptance of responsibility was without foundation." Mot. at 7.
III. Standard of Review
After conviction and exhaustion, or waiver, of any right to appeal, courts are entitled to presume that a defendant stands fairly and finally convicted. United States v. Frady, 456 U.S. 152, 164 (1982); United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir. 1991), cert. denied, 502 U.S. 1076 (1992). A defendant can challenge his conviction or sentence after it is presumed final on issues of constitutional or jurisdictional magnitude only, and may not raise an issue for the first time on collateral review without showing both "cause" for his procedural default and "actual prejudice" resulting from the errors.Shaid, 937 F.2d at 232. Section 2255 does not offer recourse to all who suffer trial errors. It is reserved for transgressions of constitutional rights and other narrow injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice. United States v. Capua, 656 F.2d 1033, 1037 (5th Cir. Unit A Sept. 1981). In other words, a writ of habeas corpus will not be allowed to do service for an appeal. Davis v. United States, 417 U.S. 333, 345 (1974).
IV. Analysis
Jordan's first ground rests on the retroactive application ofUnited States v. Booker, 125 S. Ct. 738 (2005), to his sentencing. However, Booker has not been made retroactive to cases, such as Jordan's, on collateral review. See Green v. United States, 397 F.3d 101, 102-03 (2nd Cir. 2005); In re Anderson, 396 F.3d 1336, 1338-40 (11th Cir. 2005); McReynolds v. United States, 397 F.3d 479, 480-81 (7th Cir. 2005). Therefore, his first ground is without merit.Jordan's second ground is also without merit. A claim that the court erred in calculating a sentence is not grounds for relief under section 2255. United States v. Payne, 99 F.3d 1273, 1281 (5th Cir. 1996). Likewise, the technical application of the guidelines does not give rise to a constitutional issue. Id at 1281-82 (citing United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992)). Moreover, on Jordan's direct appeal, the Fifth Circuit held that the court did not err in denying Jordan a reduction for acceptance of responsibility. United States v. Jordan, 93 Fed.Appx. 628 629-30, 2004 WL 602738 at *1 (5th Cir.) (unpublished) (citing United States v. Anderson, 174 F.3d 515, 525 (5th Cir. 1999)).
V. ORDER
For the reasons discussed herein, the court concludes that the motion, files, and records in this case conclusively show that Jordan is entitled to no relief. See 28 U.S.C. § 2255. Therefore,
The court ORDERS that Jordan's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 be, and is hereby, denied.