[NOT FOR PUBLICATION]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, United States Attorney, Jose A. Quiles-Espinosa,
Senior Litigation Counsel, and Warren Vazquez, Assistant U.S.
Attorney, on brief for appellee.
February 27, 1996
Per Curiam. Appellant Oscar Diaz-Cruz appeals from
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.
2255; Knight v. United States, 37 F.3d 769, 772 (1st Cir.
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
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."
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 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
8, (2d Cir. 1995). See also United States v. Rodriguez,
63 F.3d 1159, 1168 (1st Cir.) ("the mere fact of [a]
disparity is of no consequence"), cert. denied, 116 S. Ct.
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.
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
States, 508 F.2d 1328, 1330 (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 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
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.
The judgment of the district court is affirmed.
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