Unpublished Disposition, 937 F.2d 614 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 937 F.2d 614 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.Dale Marco THOMAS, Defendant-Appellant.

No. 90-55524.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 23, 1991.* Decided July 5, 1991.



Dale Marco Thomas, a federal prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion to correct his sentence. We review de novo, United States v. Angelone, 894 F.2d 1129, 1130 (9th Cir. 1990), and affirm.

Thomas pleaded guilty to distribution of cocaine base, in violation of 21 U.S.C. § 841(a) (1). Under the terms of the plea agreement, the government agreed to recommend a sentence in the guideline range of 27-33 months. At sentencing, the government recommended a 32-month term of imprisonment. The district court found the sentencing guideline range to be 33-41 months, and sentenced Thomas to 33 months of imprisonment to be followed by 4 years of supervised release. In his section 2255 motion, Thomas contended that the district court erred in computing his offense level under the guidelines because it denied him a two-point reduction for acceptance of responsibility.

Although Thomas raised this issue at the sentencing hearing, he did not bring a direct appeal. In his section 2255 motion, Thomas alleges that: (1) his attorney told him that he was not entitled to appeal because he had entered a guilty plea, and (2) his attorney said he would file a Rule 35 motion to reduce the sentence. Thomas alleges that because his attorney did not file a Rule 35 motion, he filed this section 2255 motion pro se.

Generally, a collateral challenge under section 2255 "may not do service for an appeal." United States v. Frady, 456 U.S. 152, 165 (1982). To obtain collateral relief under section 2255, Thomas must show both cause for his procedural default and actual prejudice resulting from the alleged error. See id. at 168.

Here, Thomas cannot show actual prejudice from the error he alleges. The district court's determination that Thomas was not entitled to the reduction of offense level for acceptance of responsibility is supported by the record. Moreover, entering a guilty plea does not entitle a defendant to the reduction for acceptance of responsibility as a matter of right. United States v. Cooper, 912 F.2d 344, 345 (9th Cir. 1990) (citing U.S.S.G. Sec. 3E1.1). Accordingly, the district court correctly denied Thomas's section 2255 motion.



The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3