
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                          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                                         -2-            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            ______                                         -3-            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.                                                            ________                                         -4-
