Paul Ayuso v. USA

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JANUARY 22, 2010
JOHN LEY
ACTING CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 09-13818
Non-Argument Calendar
________________________
D. C. Docket Nos. 09-21072-CV-AJ,
07-20128-CR-AJ
PAUL AYUSO,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 22, 2010)
Before CARNES, MARCUS and FAY, Circuit Judges.
PER CURIAM:

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Paul Ayuso, a federal prisoner proceeding pro se, appeals from the district
court’s denial of his motion to correct his sentence under 28 U.S.C. § 2255. On
appeal, Ayuso argues that the district court erred in denying relief because, at
sentencing, the court erred in finding that he was not eligible for the safety-valve
provision set forth in U.S.S.G. § 5C1.2. Specifically, Ayuso asserts that the court
erred in determining that a previous state offense, for which the state court
withheld adjudication after Ayuso pled nolo contendere, warranted a criminal
history point under U.S.S.G. §§ 4A1.1 and 4A1.2. Ayuso contends that, if the
district court had not erroneously found that this offense warranted a criminal
history point, he would have been eligible for a lower sentence under the
safety-valve provision. For the reasons set forth below, we affirm.
I.
Ayuso, sentenced to 60 months’ imprisonment following his September
2007 conviction for possession with intent to distribute one hundred or more
marijuana plants, filed the present motion to vacate his sentence under 28 U.S.C.
§ 2255. In his motion, Ayuso, represented by counsel, requested that the court
correct his sentence because his 2001 state conviction for petty larceny was
vacated after he had been sentenced in the present case. He argued that this
vacated conviction no longer warranted a criminal history point under the
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Sentencing Guidelines, causing him to become eligible for a lower sentence under
the safety-valve provision set forth in U.S.S.G. § 5C1.2. Ayuso explained that,
after we affirmed his sentence on direct appeal, he filed a motion to vacate his
petty larceny conviction, to which he had originally entered a guilty plea. The state
court granted his motion, and allowed Ayuso to plead nolo contendere to the petty
larceny charge. The state court withheld adjudication in the case and suspended
the entry of a sentence. Thus, Ayuso contended, the disposition of this criminal
charge no longer warranted a criminal history point, and he should be resentenced
in light of the fact that he was now eligible for the safety-valve provision.
Ayuso supported his § 2255 motion with exhibits. These exhibits included
state court documents, which reflected that the state court had granted Ayuso’s
motion to vacate his 2001 petty larceny conviction. The exhibits also reflected that
the state court had withheld adjudication of the offense after Ayuso entered a plea
of nolo contendere.
The government responded, generally arguing that Ayuso’s § 2255 motion
should be denied because, even though the state court had withheld its adjudication
of the offense, his petty larceny charge still warranted a criminal history point
under the Guidelines.
The district court denied Ayuso’s motion, agreeing with the government that
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Ayuso still was not eligible for the safety-valve provision because, even after the
recent state court proceedings, Ayuso’s petty larceny charge still warranted a
criminal history point. The court did not discuss the issue of whether Ayuso’s
sentencing claim was cognizable in a § 2255 proceeding.
Ayuso, proceeding pro se, subsequently filed a notice of appeal. The district
court construed his notice of appeal as a motion for a certificate of appealability
(“COA”). The district court granted Ayuso’s motion for a COA, certifying the
following question for appellate review: “Whether [Ayuos’s] nolo contendere plea
to the Florida misdemeanor petty theft charge should be scored as a criminal
history point.”
II.
Even though the parties do not raise the issue of whether Ayuso’s sentencing
claim is cognizable under § 2255, and the district court did not discuss this issue,
we consider, as a threshold concern, whether Ayuso’s sentencing claim is
cognizable in a § 2255 proceeding. See Hunter v. United States, 559 F.3d 1188,
1190-91 (11th Cir. 2009) (holding that, even though the prisoner likely was
erroneously sentenced as an armed career criminal under the Sentencing
Guidelines, his claim did not warrant a COA because a sentencing error, standing
alone, generally is not cognizable under § 2255); see also Burke v. United States,
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152 F.3d 1329, 1331 (11th Cir. 1998) (holding that, “as a threshold inquiry,” this
Court would consider whether the prisoner’s sentencing claim was cognizable
under § 2255).
In order to appeal the denial of his § 2255 motion, a prisoner must first
obtain a COA. 28 U.S.C. § 2253(c)(1). In order to obtain a COA, a prisoner must
make a “substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2); see also Slack v McDaniel, 529 U.S. 473, 484-85, 120 S.Ct. 1595,
1603-04, 146 L.Ed.2d 542 (2000). Appellate review is limited to the issues
specified in the COA. Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir.
1998). Procedural issues that must be resolved before we can address the
underlying issue specified in the COA are presumed to be encompassed in the
COA. McCoy v. United States, 266 F.3d 1245, 1248 n.2 (11th Cir. 2001) (holding
that we could consider whether the prisoner’s claim was procedurally barred, even
though this issue was not specified in the COA, because the district court failed to
consider this issue, and the issue had to be addressed before we could reach the
merits of the prisoner’s underlying claim). We do not scrutinize a COA for
non-jurisdictional errors. See Thomas v. Crosby, 371 F.3d 782, 785 (11th Cir.
2004).
Unless the claimed error involves a lack of jurisdiction or a constitutional
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violation, § 2255 relief is limited. United States v. Addonizio, 442 U.S. 178, 185,
99 S.Ct. 2235, 2240, 60 L.Ed.2d 805 (1979). An error that is not jurisdictional or
constitutional will form the basis for § 2255 relief only where “the claimed error
constituted a fundamental defect which inherently results in a complete miscarriage
of justice.” Id. at 185, 99 S.Ct. at 2240. A non-constitutional error that results in a
miscarriage of justice “should present exceptional circumstances where the need
for the remedy afforded by the writ of habeas corpus is apparent.” Hill v. United
States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962) (quotation
omitted). Errors that seriously undermine the validity of criminal proceedings
have been held to constitute a miscarriage of justice. See, e.g., Davis v. United
States, 417 U.S. 333, 346-47, 94 S.Ct. 2298, 2305, 41 L.Ed.2d 109 (1974) (holding
that a prisoner’s claim that he was convicted for a legal act was cognizable under
§ 2255); United States v. Behrens, 375 U.S. 162, 164-66, 84 S.Ct. 295, 296-97, 11
L.Ed.2d 224 (1963) (holding that prisoner was entitled to relief under § 2255
where his sentence was imposed outside of the prisoner’s or counsel’s presence).
Under the Sentencing Guidelines, U.S.S.G. §§ 4A1.1 and 4A1.2 generally
govern the number of criminal history points assessed for a defendant’s previous
crimes. See generally U.S.S.G. §§ 4A1.1, 4A1.2. Under § 4A1.1(c), one criminal
history point should be assessed for a “prior sentence” that was not otherwise
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counted under another provision. U.S.S.G. § 4A1.1(c). Section 4A1.2(a) defines
the term “prior sentence” as “any sentence previously imposed upon adjudication
of guilt, whether by guilty plea, trial, or plea of nolo contendere.” U.S.S.G.
§ 4A1.2(a). Pursuant to § 4A1.2(f):
Diversion from the judicial process without a finding of guilt (e.g.,
deferred prosecution) is not counted. A diversionary disposition
resulting from a finding or admission of guilt, or a plea of nolo
contendere, in a judicial proceeding is counted as a sentence under
§ 4A1.1(c) even if a conviction is not formally entered.
U.S.S.G. § 4A1.2(f). We have held, on direct appeal, that even if a charge does not
constitute a “prior sentence” under § 4A1.2(a) because the state court withheld
adjudication, the offense still warrants a criminal history point as a diversionary
disposition under § 4A1.2(f) if the defendant pled nolo contendere to the charge.
United States v. Rockman, 993 F.2d 811, 813-14 (11th Cir. 1993).
III.
Here, Ayuso’s sentencing claim is not cognizable under § 2255 because it is
not a constitutional error and does not rise to the level of a miscarriage of justice.
In his pleadings below and in his brief on appeal, Ayuso does not indicate that the
alleged miscalculation of his criminal points implicates a constitutional error. In
addition, Ayuso’s sentencing claim is distinguishable from those errors that have
been held to constitute a miscarriage of justice, as these errors implicated a
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fundamental defect in the validity of the district court proceedings. Moreover,
Ayuso’s claim that the district court erred in assessing a criminal history point for
his state court petty larceny conviction lacks merit under U.S.S.G. § 4A1.2(f) and
our holding in Rockman. Accordingly, because Ayuso’s claim is not constitutional
and does not rise to the level of a miscarriage of justice, his claim is not cognizable
under § 2255, and we affirm on this basis.
AFFIRMED.
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