concurring:
I concur in the majority’s affirmance of the district court’s denial of Talk’s 28 U.S.C. § 2255 motion to vacate his sentence. I write separately because I conclude Talk has not asserted a cognizable basis for collateral attack of his sentence under the limited scope of § 2255.
Grounds for successful collateral attacks under § 2255 are limited far beyond errors justifying reversal on direct appeal. United States v. Blackwell, 127 F.3d 947, 954 (10th Cir.1997). In particular, relief is warranted under § 2255 only if the alleged error is “jurisdictional,” “constitutional,” “a fundamental defect which inherently results in a complete miscarriage of justice,” or “an omission inconsistent with the rudimentary demands of fair procedure.” Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962).
Reduced to its essence, Talk’s argument is that this court, in reviewing the sentence on appeal in Talk II, applied a de novo standard rather than an abuse of discretion standard in determining whether the factors cited by the district court warranted departure from the sentencing guidelines. Talk does not argue, nor can he argue, this alleged error was jurisdictional. Further, I am not persuaded the alleged error is constitutional. Although a defendant has certain constitutional rights in relation to sentencing (e.g., right to be sentenced based on reliable information, United States v. Robinson, 30 F.3d 774, 787 (7th Cir.1994); right not to be sentenced while incompetent, United States v. Soldevila-Lopez, 17 F.3d 480, 490 (1st Cir.1994)), I have found no case recognizing a constitutional right to a particular standard of appellate review, nor have I found a case recognizing a constitutional right to be sentenced by a particular entity (e.g., district court vs. appellate court). See generally Field v. Sheriff of Wake County, 831 F.2d 530, 536 (4th Cir.1987) (no constitutional right to be sentenced by jury); United States v. Fitzpatrick, 548 F.2d 105, 108-09 (3d Cir.1977) (no constitutional right to be sentenced by trial judge).
This leaves only the possibility that Talk has asserted a viable statutory claim. The majority acknowledges the standards for statutory claims announced in Hill, but ultimately relies on United States v. Gattas, 862 *1074F.2d 1432 (10th Cir.1988), which held a sentencing court’s failure to make a written record of its resolution of contested matters concerning the presentenee report and attach the record to the report, as required by Fed.R.Crim.P. 32(c)(3)(D), was sufficiently fundamental to support a claim under § 2255. The conclusion in Gaitas rested on the fact that presentence reports can heavily influence “a defendant’s classification in prison, his ability to obtain furloughs, the treatment programs provided to him, and his parole determinations,” and thus are “vitally important to the post-sentencing lives of criminal defendants.” Id. at 1434. I am not persuaded the “vitally important to the post-sentencing lives of criminal defendants” statement in Gattas, focused as it was on the particular facts in that case, was intended to operate as a standard in future cases for determining whether a cognizable § 2255 claim has been asserted. In fact, I believe the adoption of this statement as a standard for determining the viability of a statutory claim is erroneous in that it waters down the “fundamental miscarriage of justice” and “omission inconsistent with the rudimentary demands of fair procedure” standards established long ago by the Supreme Court. See Hill, 368 U.S. at 428, 82 S.Ct. 468. I conclude Talk has not alleged a viable statutory claim under these stringent standards.
Although the majority suggests application of a de novo standard rather than an abuse of discretion standard would have “result[ed] in a significantly miscalculated sentence,” I disagree. At worst, such an error would have resulted in this court substituting its judgment for that of the district court with respect to whether particular factors warranted a downward departure from the sentencing guidelines. In my opinion, such a result constitutes neither “a fundamental defect which inherently results in a complete miscarriage of justice,” nor “an omission inconsistent with the rudimentary demands of fair procedure.” Id.