Opinion
NO. CR. S-05-0331 WBS, NO. CIV. S-08-1110 WBS.
May 22, 2008
ORDER
On May 29, 2007, Isael Javier Hernandez Quintana appeared for sentencing on his plea of guilty to one count of possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1). Under the sentencing guidelines, as calculated in the presentence report to which defendant made no objections, defendant's offense level was 35, and his criminal history category was II. The guideline range was thus 188-235 months. At the sentencing hearing, due to defendant's substantial cooperation, the government sought a sentence of 169 months, which amounted to a 10% reduction from the bottom of the guidelines pursuant to section 5K1.1. Defendant requested a sentence of 85 months. The court in the exercise of its discretion imposed a sentence of 144 months in prison.
On May 20, 2008, defendant filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Read in the light most favorable to defendant, all the petition asks the court to do is to resentence him to a lower term. He does not suggest that his sentence was illegal other than the fact that he believes it was too harsh. Nor does he suggest any basis to infer that his attorney rendered ineffective assistance of counsel. Section 2255 relief is not available simply to ask the sentencing court to reconsider the sentence imposed. See Limon-Gonzalez v. United States, 499 F.2d 936 (8th Cir. 1974) (holding that in order to warrant granting a motion to set aside judgment and sentence under 28 U.S.C. § 2255, the claim asserted must rise to constitutional or jurisdictional significance).
Under the circumstances, there is no reason to require the United States to file a formal motion to dismiss defendant's petition nor to allow this matter to proceed further.
IT IS THEREFORE ORDERED that defendant's motion to vacate, set aside, or correct his sentence be, and the same hereby is, DENIED.