United States District Court, W.D. Virginia, Abingdon Division
Ramseyer, Assistant United States Attorney,
Abingdon, Virginia for United States; Gloria W.
“Faye” Kennedy, Pro Se Defendant.
P. Jones United States District Judge
defendant, Gloria W. “Faye” Kennedy, filed a
Motion to Vacate, Set Aside, or Correct Sentence pursuant to
28 U.S.C. § 2255, challenging her 46-month sentence. The
United States has filed a Motion to Dismiss. After reviewing
the record and considering the arguments of the parties, I
will grant the United States' Motion to Dismiss and deny
Kennedy's § 2255 motion.
November 24, 2015, an Information charged Kennedy with
conspiracy to illegally distribute oxycodone, in violation of
21 U.S.C. §§ 846 and 841(b)(1)(C), and making false
statements during the course of the investigation, in
violation of 18 U.S.C. § 1001. She pleaded guilty to
both counts. A Presentence Investigation Report
(“PSR”) recommended a guideline imprisonment
range of 46 to 57 months. PSR ¶ 65, ECF No. 21. Kennedy
did not raise any objections to the PSR. I sentenced her to a
within-guidelines sentence of 46 months' incarceration on
each count, to be served concurrently. J. 2, ECF No. 16. She
did not appeal.
filed this § 2255 petition arguing that (1) she should
have received a reduction in her sentencing guideline range
because she played a minor role in the criminal conduct and
(2) she should receive a reduction in her term of
incarceration based on her post-sentence rehabilitation.
state a viable claim for relief under § 2255, a
defendant must prove: (1) that the sentence was
“imposed in violation of the Constitution or laws of
the United States”; (2) that “the court was
without jurisdiction to impose such sentence”; or (3)
that “the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack.” 28 U.S.C. § 2255(a). Kennedy bears the
burden of proving grounds for a collateral attack by a
preponderance of the evidence. Miller v. United
States, 261 F.2d 546, 547 (4th Cir. 1958).
Minor Role Reduction.
argues that I erred by failing to consider her limited role
in the conspiracy when sentencing her, in accordance with
Amendment 794 to the United States Sentencing Guidelines
(“U.S.S.G.”) § 3B1.2. This claim fails for
many reasons. First, this issue is waived. Kennedy's plea
agreement expressly waived her right to collaterally attack
her sentence other than to raise issues that cannot be
waived, by law, or for ineffective assistance of counsel.
See United States v. Lemaster, 403 F.3d 216, 220
(4th Cir. 2005) (concluding that collateral attack waivers
are generally enforceable following a knowing and voluntary
guilty plea, as was the case here). Second, at the time of
sentencing, Kennedy never requested a reduction for a minor
role, nor objected to the PSR. Accordingly, she has
procedurally defaulted on this claim. United States v.
Mikalajunas, 186 F.3d 490, 492 (4th Cir. 1999) (noting
that in order to collaterally attack a conviction or
sentence, the defendant generally must have raised those
claims before the trial court and on direct appeal).
addition, Kenney has not pointed to any evidence that would
warrant a minor role reduction. While asserting that she was
blackmailed into writing prescriptions for oxycodone, she
does not contest that she did, in fact, play an active role
in the conspiracy by illegally proscribing the drugs.
U.S.S.G. § 3B1.2(a) (allowing for a reduction in a
defendant's sentencing guideline range if the defendant
is less culpable than others involved in the criminal
conduct). Finally, “[b]arring extraordinary
circumstances, . . . an error in the application of the
Sentencing Guidelines cannot be raised in a § 2255
proceeding.” United States v. Foote, 784 F.3d
931, 940 (4th Cir. 2015) (internal quotation marks and
citation omitted). Accordingly, Kennedy's argument fails.
also asserts that she is entitled to a reduction in her
sentence because while in prison, she has actively
participated in programs and currently works as a
teacher's aid. While these activities are commendable,
they do not serve as a legal basis for revisiting her
sentence. Cf. Pepper v. United States, 562
U.S. 476, 490 (2011) (allowing a court to consider a
defendant's post-sentencing rehabilitation ...