Diaz-Cruz v. United States

Opinion

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


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        No. 95-2122



                                   OSCAR DIAZ-CRUZ,



                                Plaintiff, Appellant,



                                          v.



                              UNITED STATES OF AMERICA,



                                 Defendant, Appellee.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                         FOR THE DISTRICT OF PUERTO RICO



                    [Hon. Raymond L. Acosta, U.S. District Judge]
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                                 ____________________



                                        Before



                                Torruella, Chief Judge,
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                                   Stahl and Lynch,

                                   Circuit Judges.
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                                 ____________________



            Oscar Diaz-Cruz on brief pro se.
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            Guillermo Gil,  United States  Attorney, Jose  A. Quiles-Espinosa,
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        Senior  Litigation    Counsel,  and  Warren  Vazquez,  Assistant  U.S.
                                             _______________

        Attorney, on brief for appellee.


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                                  February 27, 1996

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Per Curiam.  Appellant Oscar Diaz-Cruz appeals from
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            the denial of a  motion to vacate his sentence filed under 28



            U.S.C.    2255.   He  claims that  the disparity  between his



            sentence and those of two of his co-defendants is unwarranted



            and  unreasonable.  For the following  reasons, we agree that



            the   2255 motion was meritless.



                      Only certain kinds of alleged sentencing errors may



            be raised in a collateral proceeding under   2255.  These are



            that (1) a sentence violates  the Constitution or the laws of



            the  United  States,  (2)  the  district  court  was  without



            jurisdiction  to impose  the sentence,  (3)  the sentence  is



            greater than the statutory maximum, and (4) the sentence  "is



            otherwise subject  to collateral  attack."   See 28  U.S.C.  
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            2255; Knight  v. United  States, 37 F.3d  769, 772  (1st Cir.
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            1994).  Appellant  does not allege that his sentence violates



            the  Constitution.    Nor  could  he.   A  defendant  has  no



            constitutional  right to receive the same sentence as another



            convicted of the  same offense.   Williams  v. Illinois,  399
                                              ________     ________



            U.S. 235, 243 (1970) ("[t]he Constitution permits qualitative



            differences  in meting out punishment").  Appellant also does



            not assert  that the  district court  lacked jurisdiction  or



            that his sentence exceeded the statutory maximum.



                      This leaves  the last  ground.   The Supreme  Court



            "has   narrowly  confined  the   scope  and  availability  of



            collateral   attack   for   claims   that   do   not   allege


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constitutional or jurisdictional errors."  Knight, 37 F.3d at
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            772.



                      Such claims are properly  brought under  

                      2255  only if  the  claimed  error is  "a

                      fundamental   defect   which   inherently

                      results  in  a  complete  miscarriage  of

                      justice"  or  "an  omission  inconsistent

                      with  the  rudimentary  demands  of  fair

                      procedure."    The  error  must  "present

                      exceptional circumstances where  the need

                      for the  remedy afforded  by the  writ of

                      habeas corpus is apparent."
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            Id.  (quoting  Hill  v.  United States,  368  U.S.  424,  428
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            (1962)).



                      Appellant's  claim does not rise  to the level of a



            miscarriage of justice.  "Absent extraordinary circumstances,



            a defendant  has no . .  . fundamental interest  in whether a



            sentence reflects his . . . relative culpability with respect



            to his . . . co-defendants."  United States v. Bokun, 73 F.3d
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            8,      (2d Cir. 1995).  See also United States v. Rodriguez,
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            63  F.3d  1159,  1168  (1st  Cir.) ("the  mere  fact  of  [a]



            disparity is  of no consequence"),  cert. denied, 116  S. Ct.
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            681  (1995).    Appellant fails  to  state  any extraordinary



            circumstances  surrounding his case;  he relies instead  on a



            fairness argument.  In this context, we note that the general



            rule in this  circuit is that it is not proper for a district



            court  to depart  from  a  guideline range  in  an effort  to



            equalize  the  sentences  of similarly  situated  defendants.



            United States v. Wogan, 938 F.2d 1446, 1448 (1st Cir.), cert.
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            denied, 502 U.S. 969 (1991).   Given appellant's lack in this
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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   2255 motion.  See, e.g., Entrekin v. United
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            States,  508 F.2d  1328, 1330  (8th  Cir. 1974)  (defendant's
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            assertion that his sentence was harsher than that received by



            his co-defendant cannot be raised  in a   2255 motion), cert.
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            denied, 421 U.S. 977 (1975).
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                      We  add  only  that  to  the  extent  appellant  is



            separately challenging the  trial court's enhancement of  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   2255 absent exceptional



            circumstances."  Knight, 37  F.3d at 772.  We can perceive no
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            obstacle that would have prevented appellant from challenging



            the two-level enhancement on direct appeal.  "Having bypassed



            his opportunity  to  raise the  claim  on direct  appeal,  he



            cannot raise it now on collateral attack."  Id. at 773.
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                      The judgment of the district court is affirmed.
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