Wright v. USA

Filing 3

Memorandum Opinion and Order: The Court therefore summarily DISMISSES the motion to vacate, set aside, or correct sentence brought pursuant to 28 U.S.C. § 2255. (Ordered by Judge Ed Kinkeade on 3/13/2016) (trk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
MARY ANN WRIGHT,
Movant,
v.

UNITED STATES OF AMERICA,
Respondent.

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3:16-CV-610-K &
3:16-CV-619-K
(3:14-CR-099-K-1) &
(3:14-CR-415-K-1)

MEMORANDUM OPINION AND ORDER
Movant Mary Ann Wright, a federal prisoner, has moved, under 28 U.S.C. §
2255, to vacate, set aside, or correct her sentence. See Dkt. No. 2. Because it plainly
appears that Wright is not entitled to relief, for the reasons explained below, the Court
DISMISSES her motion pursuant to Rule 4(b) of the Rules Governing Section 2255
Proceedings for the United States District Courts.
Background
Wright pleaded guilty to unlawful transfer, possession of a means of
identification, see United States v. Wright, 3:14-CR-99-K (01) (N.D. Tex.), and to
possession of stolen mail and aggravated identity theft, see United States v. Wright,
3:14-CR-415-K (01) (N.D. Tex.). As to all three convictions, the Court, on February
25, 2015, sentenced Wright to a total aggregate sentence of 84 months’ incarceration,
which consisted of concurrent 60-month sentences as to the conviction for unlawful
transfer, possession of a means of identification and the conviction for possession of

stolen mail and a 24-month sentence as to the aggravated-identity-theft conviction, to
run consecutively to the concurrent sentences. She did not file a direct appeal.
She instead has filed identical Section 2255 motions in both criminal cases in
which she asserts that her
grounds are that counsel wasn’t forthright with me. The government
charged all the mail to me although it wasn’t (actual loss), knowing it
wasn’t mail I had stolen and never arrested me for it. I feel the threat of
conspiracy was bogus to allow time to file more charges and because of
such the accuracy to the offense level should reflect the inflation of the
dollar amendment made Nov 1, 2015.
Dkt. No. 2 at 14; see id. (further explaining that she was told initially by the United
States Marshal that she “was under investigation for conspiracy of stolen mail” and
that later she was “told [she] was going to be charged with a conspiracy” but that
“[t]he charge never came”).
Attached to her motion to vacate is an email that Wright appears to have
received on November 4, 2015 and which sets out “summaries of the key amendments
[to the United States Sentencing Guidelines] that went into effect November 1,
2015.” See id. at 16. The email notes that “[n]one of the amendments were made
retroactive.” Id.
Legal Standard and Analysis
Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United
States District Courts provides for summary dismissal “[i]f it plainly appears … that
the moving party is not entitled to relief[.]” Id.
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Wright appears to contend that, because of an alleged delay in the disposition of
her criminal actions, she should benefit from amendments to the sentencing guidelines
made to account for the impact of economic inflation. Those amendments became
effective November 1, 2015.
Under the 2014 guidelines, used to determine Wright’s advisory guideline
sentencing range, the total intended loss for guideline calculation purposes was
$75,749.15. Because that loss amount exceeded $70,000 but was less than $120,000,
eight levels were added to her base offense level. See USSG § 2B1.1(b)(1)(E) (2014).
Under the current version of the sentencing guidelines, § 2B1.1(b)(1) has been
amended to account for economic inflation. And if that version of the sentencing
guidelines had been applied, Wright would have only received a six-level increase. See
USSG § 2B1.1(b)(1)(D) (for loss amounts exceeding $40,000 but less than $95,000,
increase by 6 levels).
As Wright makes clear in her motion to vacate, however, this amendment was
not made retroactive – to cases like Wright’s, in which the final criminal judgment is
being attacked collaterally. And, because Wright’s offenses of convictions were all
committed in February 2014, the Court appropriately used the 2014 version of the
sentencing guidelines. See USSG § 1B1.11(a).
More fundamentally, even if the Court’s sentencing calculation was somehow
incorrect – which it is not – an “attempt to challenge the court’s sentencing calculation

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is not a basis for a section 2255 proceeding.” Momin v. United States, Nos.
3:07-CV-889-L & 3:04-CR-289-H, 2008 WL 1971390, at *1 (N.D. Tex. Apr. 30,
2008) (citing United States v. Williamson, 183 F.3d 458, 462 (5th Cir. 1999) (“Section
2255 motions may raise only constitutional errors and other injuries that could not
have been raised on direct appeal that will result in a miscarriage of justice if left
unaddressed. Misapplications of the Sentencing Guidelines fall into neither category
and hence are not cognizable in § 2255 motions.”)).
And to the extent that Wright is somehow challenging the intended loss amount
used to calculate her eight-level enhancement – see Dkt. No. 2 at 14 (“The government
charged all the mail to me although it wasn’t (actual loss), knowing it wasn’t mail I had
stolen and never arrested me for it.”) – such a challenge goes to the application of the
sentencing guidelines, and, therefore, such a challenge is also not cognizable in a
Section 2255 proceeding. See United States v. Davis, 8 F.3d 23, 1993 WL 456425, at *1
(5th Cir. Oct. 29, 1993) (per curiam) (“the calculation of the loss at the full market
value of the homes” was among several “sentencing issues that should have also been
presented on direct appeal and not for the first time in a § 2255 proceeding” (citing
United States v. Perez, 952 F.2d 908, 910 (5th Cir. 1992))); see also Moss v. United States,
Nos. 4:12-CV-398-A & 4:10-CR-34-A, at *2 (N.D. Tex. Sept. 28, 2012) (“Movant’s
second ground, that she should not have been held accountable for ‘some of’ the
money attributed to her, also must fail. The government correctly points out that,” a

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challenge to “the sentencing calculation” “is not cognizable in a section 2255 motion.
If she is challenging the loss calculation used in determining her guideline range, such a
challenge fails.” (citing United States v. Sealer, 37 F.3d 1131, 1134 (5th Cir. 1994))).
Finally, to the extent that Wright’s conclusory assertion “that [her] counsel
wasn’t forthright with [her],” Dkt. No. 2 at 14, somehow alleges a Sixth Amendment
violation, any claim that trial counsel provided constitutionally ineffective assistance
also fails. Vague, self-serving, and conclusory allegations are insufficient to merit
habeas relief. See Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983) (bald assertions
in pro se habeas petition have no probative evidentiary value); see also Miller v. Johnson,
200 F.3d 274, 282 (5th Cir. 2000) (“conclusory allegations of ineffective assistance of
counsel do not raise a constitutional issue in a federal habeas proceeding”).
Conclusion
For the foregoing reasons, “it plainly appears … that the moving party is not
entitled to relief.” RULES GOVERNING SECTION 2255 PROCEEDINGS

FOR THE

UNITED

STATES DISTRICT COURTS, Rule 4(b). The Court therefore summarily DISMISSES the
motion to vacate, set aside, or correct sentence brought pursuant to 28 U.S.C. § 2255.
SO ORDERED.
Signed March 13th, 2016.

ED KINKEADE
UNITED STATES DISTRICT JUDGE
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