The opinion of the court was delivered by: ROBERT PATTERSON, Senior District Judge
Petitioner Juan Fabio-Ayala brings the current petition pro
se pursuant to 28 U.S.C. § 2255. He requests that his sentence
be reduced on the ground that the Court erred in granting him the
two-point reduction he received for a minor role in the offense
pursuant to U.S.S.G. § 3B1.2(b) rather than a four-point
reduction for a minimal role in the offense, pursuant to U.S.S.G.
§ 3B1.2(a). The Petitioner's motion is denied because it is
procedurally barred and because there was no judicial error in
the application of the mitigating role sentencing adjustment.
On April 11, 2003, the Petitioner appeared before this Court
and pled guilty without a plea agreement to a felony information
charging him with one count of distribution and possession with
intent to distribute crack, 21 U.S.C. § 812, 841(a)(1) &
(b)(1)(c), and one count of bail jumping, 18 U.S.C. § 3146(a)(1)
& (b)(1)(A)(i). These charges arose out of the following events.
On March 24, 1994 a confidential informant ("CI") of the New York
City Police Department met with the Petitioner on West 141st
Street and Broadway in Manhattan. Petitioner and the CI had known
each other for many years. (See 10/30/04 Tr. at 8.) The CI
asked Petitioner to help him get drugs. Petitioner led the CI
into a video store on 141st Street. Inside the store,
Petitioner took $1,400 from the CI, walked behind a bookshelf and handed the money to the seller, who gave
Petitioner two packages containing 39 grams of crack cocaine
which Petitioner then handed to the CI. On March 30, 1994, the CI
met with the Petitioner at the same street corner in Manhattan.
On this occasion, Petitioner led the CI to the lobby of his
apartment building, and left the CI there while Petitioner
brought the seller to the lobby. Petitioner then served as a
lookout while the CI bought 1-7/8 ounces plus 30 grains of
cocaine for $1,400 in cash. Petitioner was offered a small amount
of money by the CI for each of the two transactions.
After he was arrested and posted bail on these charges,
Petitioner failed to appear at his September 6, 1994 status
conference as required by his bail conditions. A warrant for his
arrest was issued. That warrant was executed in Puerto Rico on
February 10, 2003, and Petitioner was returned to the S.D.N.Y.
On October 30, 2003, the Petitioner appeared before this Court
for sentencing. Based on the aforesaid facts and in accordance
with the presentence report, the Court calculated that
Petitioner's base offense level for distribution and possession
with intent to distribute crack was 30. The Court then deducted
three points for acceptance of responsibility under § 3E1.1(b),
and two points for Petitioner's mitigating role as a minor
participant under § 3B1.2(b). This calculation resulted in a
guideline level of 25, which carries a sentence of 57-71 months.
Instead, the Court sentenced the defendant to 33 months for
distribution and possession with intent to distribute crack
(significantly less than if the defendant had been sentenced as a
minimal participant for that same crime with an offense level 23
and had received a sentence of 46-57 months). Petitioner also
received a consecutive sentence of 24 months for bail jumping.
Although advised of his right to file a notice of appeal of his
conviction and sentence, the Petitioner failed to do so. Discussion
I. Petitioner is Procedurally Barred from Moving for
Collateral Relief on Claims which have not been Raised on Direct
Petitioner is procedurally barred from moving for collateral
relief on claims which he has not raised on direct appeal. See
Reed v. Farley, 512 U.S. 339, 354 (1994). Federal prisoners may
not employ 28 U.S.C. § 2255 as a substitute for direct appeal.
United States v. Frady, 456 U.S. 152, 165 (1982). "Section 2255
provides a remedy only for defects that are constitutional,
jurisdictional, or in some other way fundamental."*fn1
Ramos v. United States, 94 Civ. 2540, 1995 WL 694678, at *2
(S.D.N.Y. Nov. 22, 1995) (citing Davis v. United States,
417 U.S. 333, 346 (1974); Reilly v. Warden, FCI Petersburg,
947 F.2d 43 (2d Cir. 1991)). "[T]o obtain collateral relief a
prisoner must clear a significantly higher hurdle" than on direct
appeal. Frady, 456 U.S. at 166.
By failing to appeal within 10 days of his sentence, Petitioner
waived his right to appeal.*fn2 Fed.R.App.P.
4(b)(1)(A)(i). A prisoner who waives direct appeal on grounds
other than ineffective assistance of counsel is barred from
collateral relief unless he shows cause, unattributable to
himself, for the waiver of his appeal, and actual prejudice
resulting from the alleged error. Massaro v. United States,
538 U.S. 500, 504 (2003); United States v. Pipitone, 67 F.3d 34, 38
(2d Cir. 1995). Petitioner has not shown any cause for the waiver
of his appeal. Since Petitioner is unable to show cause, this Court need not address whether the alleged error
subjected Petitioner to actual prejudice.
If Petitioner is unable to demonstrate cause and actual
prejudice for waiving his appeal, he may be entitled to
collateral relief if he "can show that a fundamental miscarriage
of justice would result from a failure to entertain the claim" of
federal habeas corpus. See McCleskey v. Zant, 499 U.S. 467,
494-95 (1991). The alleged error claimed by Petitioner was a
failure to treat him as a minimal participant under the United
States Sentencing Guidelines. A claimed misapplication under the
Guidelines of the sort involved here is not a defect so
fundamental as to cause a complete miscarriage of justice.
Ramos, 1995 WL 694678, at * 2 (failing to treat a defendant as
a minimal participant under the Sentencing Guidelines is not a
defect so fundamental as to cause a complete miscarriage of
justice); see also United States v. Addonizio, 442 U.S. 178,
185 (1979) (holding that erroneous judicial assumptions about the
future course of parole proceedings does not meet any of the
established standards of collateral attack). If Petitioner had
received the four point reduction in his sentence, his adjusted
offense level would be 23. The sentencing range for 23 points in
Criminal History Category One is 46-57 months. U.S.S.G.
Sentencing Table. It is particularly clear that no fundamental
miscarriage of justice occurred in Petitioner's case because he
was sentenced to a total of 57 months, which is within the range
for offense level 23.
For all of the reasons stated above, Petitioner's motion is
procedurally barred. Although the Court need not address the
merits of the motion, it chooses to do so because Petitioner
moves pro se. II. Petitioner's Claim of Judicial Error in the Application
of the Mitigating Role Adjustment is Without Merit
Petitioner's claim of judicial error in the application of the
mitigating role adjustment is without merit. A "defendant bears
the burden of establishing by a preponderance of the evidence
that he is entitled to a mitigating role adjustment under Section
3B1.2 of the Sentencing Guidelines." United States v.
Carpenter, 252 F.3d 230, 234 (2d Cir. 2001), appeal after
remand, 320 F.3d 334 (2d Cir. 2003). Mitigating role adjustments
under U.S.S.G. § 3B1.2 are fact specific and based on the
discretion of the judge. United States v. Perez, No. 01 CR 754,
2003 WL 21018815, at * 10 (S.D.N.Y. May 5, 2003); see also
U.S.S.G. § 3B1.2, cmt. n. 3(c) (2002). Mitigating role
adjustments are available only to those offenders who play a part
in the offense that makes them substantially less culpable than
the average participant in a similar offense. U.S.S.G. § 3B1.2,
cmt. n. 3(a). (The fact that an offender played a lesser role
compared to the role his co-conspirators played is insufficient,
in and of itself, to justify a mitigating role adjustment.
Carpenter, 252 F.3d at 235.) A minimal participant is one who
is "plainly among the least culpable" of the individuals involved
in the offense, and who lacks knowledge or understanding of the
"scope and structure of the enterprise and of the activities" of
the other offenders. U.S.S.G. § 3B1.2, cmt. n. 4. The guidelines
and case law make clear that the minimal role adjustment is to be
used infrequently. Id.; Carpenter, 252 F.3d at 234.
Despite the fact that Petitioner was neither the supplier of
the narcotics at issue in the offense, nor responsible for their
distribution or for disbursing the resulting profits, he still
does not meet the standard for minimal participation. See
U.S.S.G. § 3B1.2 cmt. n. 4. At sentencing the Court found that
Petitioner acted as a steerer. (10/30/03 Tr. at 34.) A steerer is
a lower level functionary who, despite his lower level of
involvement, is indispensable as the connection between buyers
and sellers in street level drug transactions.*fn3 See United States v. Neils,
156 F.3d 382, 383-84 (2d Cir. 1998). Petitioner meets the
description of a steerer in a street level drug transaction that
would not have occurred without Petitioner introducing the CI and
the seller, the only other participant. A steerer in the typical
street level distribution scheme cannot be considered a minimal
participant, but can be considered a minor participant. Id.
Petitioner admitted he received payment for acting as a steerer
in both transactions, and as a lookout in the second transaction.
The Petitioner handled both the cash and the crack during the
first transaction and therefore had sufficient knowledge and
understanding of the scope and structure of the ...