Diaz-Cruz v. United States, 1st Cir. (1996)
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Scribd Government DocsUSCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-2122
OSCAR DIAZ-CRUZ,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
___________________
____________________
Before
Torruella, Chief Judge,
___________
Stahl and Lynch,
Circuit Judges.
______________
____________________
Oscar Diaz-Cruz on brief pro se.
_______________
Guillermo Gil,
_____________
Senior
Litigation
United States
Counsel,
and
Attorney, Jose A. Quiles-Espino
______________________
Warren Vazquez,
_______________
Attorney, on brief for appellee.
____________________
Assistant
February 27, 1996
____________________
Per Curiam.
__________
Appellant Oscar Diaz-Cruz appeals from
the denial of a
U.S.C.
motion to vacate his sentence filed under 28
2255.
He
claims that
the disparity
between his
sentence and those of two of his co-defendants is unwarranted
and
the
unreasonable.
For the following
reasons, we agree that
2255 motion was meritless.
Only certain kinds of alleged sentencing errors may
be raised in a collateral proceeding under
that (1) a sentence violates
the
United
jurisdiction
States,
(2)
to impose
2255.
These are
the Constitution or the laws of
the
district
the sentence,
court
(3)
was
without
the sentence
greater than the statutory maximum, and (4) the sentence
otherwise subject
2255; Knight
______
to collateral
attack."
v. United States, 37 F.3d
______________
See 28
___
769, 772
is
"is
U.S.C.
(1st Cir.
1994).
the
Appellant
does not allege that his sentence violates
Constitution.
constitutional
convicted of the
Nor
could
he.
defendant
has
no
right to receive the same sentence as another
same offense.
Williams
________
v. Illinois,
________
399
U.S. 235, 243 (1970) ("[t]he Constitution permits qualitative
differences
not assert
in meting out punishment").
that the
district court
Appellant also does
lacked jurisdiction
or
that his sentence exceeded the statutory maximum.
This leaves
"has
narrowly
collateral
the last
confined
attack
for
the
ground.
scope
claims
-2-
The Supreme
and
that
Court
availability
do
not
of
allege
constitutional or jurisdictional errors."
Knight, 37 F.3d at
______
772.
Such claims are properly
2255
only if
the
fundamental
results
justice"
with
or
the
claimed
defect
in
complete
"an
inherently
miscarriage
omission
of
inconsistent
demands
error
"a
of
fair
must
"present
exceptional circumstances where
the need
for the
The
error is
which
rudimentary
procedure."
brought under
remedy afforded
by the
habeas corpus is apparent."
writ of
_____________
Id.
___
(quoting
Hill
____
v.
United States,
_____________
368
U.S.
424,
428
(1962)).
Appellant's
claim does not rise
to the level of a
miscarriage of justice.
"Absent extraordinary circumstances,
a defendant
. fundamental interest
has no . .
in whether a
sentence reflects his . . . relative culpability with respect
to his . . . co-defendants."
8,
(2d Cir. 1995).
____
63
F.3d
1159,
disparity is
681
(1995).
circumstances
1168
United States v. Bokun, 73 F.3d
_____________
_____
See also United States v. Rodriguez,
___ ____ _____________
_________
(1st
Cir.) ("the
of no consequence"),
Appellant fails
to
surrounding his case;
mere
fact
of
cert. denied, 116
____________
state
[a]
S. Ct.
any extraordinary
he relies instead
on a
fairness argument.
rule in this
court
circuit is that it is not proper for a district
to depart
equalize
the
In this context, we note that the general
from
sentences
guideline range
of similarly
in
situated
an effort
to
defendants.
United States v. Wogan, 938 F.2d 1446, 1448 (1st Cir.), cert.
_____________
_____
_____
denied, 502 U.S. 969 (1991).
______
Given appellant's lack in this
-3-
case of a "fundamental interest" in a sentence equal to those
of his co-defendants, his claim of disparate treatment is not
cognizable on a
States,
______
508 F.2d
2255 motion.
1328, 1330
See, e.g., Entrekin v. United
___ ____ ________
______
(8th
Cir. 1974)
(defendant's
assertion that his sentence was harsher than that received by
his co-defendant cannot be raised
in a
2255 motion), cert.
_____
denied, 421 U.S. 977 (1975).
______
We
add
only
that
separately challenging the
to
the
extent
appellant
trial court's enhancement of
is
his
base offense level by two, "[a] non-constitutional claim that
could have been,
but was not, raised
on appeal, may not
be
asserted by collateral attack under
circumstances."
Knight, 37
______
2255 absent exceptional
F.3d at 772.
We can perceive no
obstacle that would have prevented appellant from challenging
the two-level enhancement on direct appeal.
his opportunity
to
raise the
claim
"Having bypassed
on direct
cannot raise it now on collateral attack."
appeal,
Id. at 773.
___
The judgment of the district court is affirmed.
________
he
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