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July 26, 2004.

U.S., Respondent.

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.

Factual Background

  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 Appeal

  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 ...

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