United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. CRABTREE UNITED STATES DISTRICT JUDGE.
matter comes before the court on defendant Chrystal M.
Rippey's Motion to Vacate, Set Aside, or Correct Sentence
under § 2255. Doc. 25. The government filed a response
to Ms. Rippey's motion. Doc. 30. The court considers both
parties' arguments below and, for reasons explained by
this Order, denies Ms. Rippey's motion.
September 26, 2018, Ms. Rippey pleaded guilty to Count 1 of
an Indictment, charging that she knowingly escaped from the
custody of a residential re-entry center in Leavenworth,
Kansas. Docs. 17, 18. Ms. Rippey was confined at the
residential re-entry center after conviction for wire fraud,
a violation of 18 U.S.C. § 1343, and mail fraud, a
violation of 18 U.S.C. § 1341. Id. Ms. Rippey
escaped from the facility in her employer's car without
his permission on July 17, 2018. Doc. 29 at 7; Doc. 19 at 4.
Ms. Rippey's escape from the facility violated 18 U.S.C.
§ 751(a). Doc. 17 at 1-2, Doc. 18 at 1.
sentencing, the United States Probation Office prepared a
Presentence Investigation Report (PSR), using the 2018
edition of the United States Sentencing Commission Guidelines
Manual (“U.S.S.G.” or “the
Guidelines”). Doc. 19 at 4. The PSR determined that Ms.
Rippey had escaped from custody, which corresponded to a base
level offense of 13 under U.S.S.G. § 2P1.1(a)(1).
Id. at 4. The PSR included a two-level reduction
under U.S.S.G. § 3E.1.1(a) because of Ms. Rippey's
acceptance of responsibility for the offense. Id. at
5. After applying the reduction to the base offense level,
the PSR computed a total offense level of 11. Id. at
11. This total offense level, combined with Ms. Rippey's
criminal history category of V, produced an advisory
Guidelines' sentencing range of 24 months to 30
months' imprisonment. Id.
accepting her plea agreement, Ms. Rippey waived “any
right to appeal or collaterally attack any matter in
connection with [her] prosecution, her conviction, or the
components of the sentence . . . including the length and
conditions of supervised release . . . .” Doc. 18 at 5
(Plea Agreement § 9). She also waived “any right
to challenge her sentence, or the manner in which it was
determined, or otherwise attempt to modify or change her
sentence, in any collateral attack, including, but not
limited to, a motion brought under 28 U.S.C. § 2255
(except as limited by United States v. Cockerham,
237 F.3d 1179, 1187 (10th Cir. 2001)), or a motion brought
under Federal Rule of Civil Procedure 60(b).”
Id. at 4-5. The court accepted the plea, and
sentenced Ms. Rippey to 24 months' imprisonment followed
by one year of supervised release. Doc. 21 at 2-3.
Rippey did not appeal her conviction to the Tenth Circuit
Court of Appeals. On June 24, 2019, Ms. Rippey, proceeding
pro se,  filed the pending § 2255 Motion to
Vacate, Set Aside, or Correct Sentence. Doc. 25. Her motion
alleges (1) ineffective counsel, and (2) improper calculation
of the sentencing guidelines. Id. at 4-5. The court
considers Ms. Rippey's arguments, below.
2255 entitles a federal prisoner to relief “[i]f the
court finds that the judgment was rendered without
jurisdiction, or that the sentence imposed was not authorized
by law or [is] otherwise open to collateral attack, or that
there has been such a denial or infringement of the
constitutional rights of the prisoner as to render the
judgment vulnerable to collateral attack.” 28 U.S.C.
§ 2255(b). Motions of this kind attack the legality of
the prisoner's detention, and “must be filed in the
district court that imposed the sentence.” Bradshaw
v. Story, 86 F.3d 164, 166 (10th Cir. 1996) (citations
omitted). The district court must then hold an evidentiary
hearing “[u]nless the motion and the files and records
of the case conclusively show that the prisoner is entitled
to no relief . . . .” 28 U.S.C. § 2255(b). A
§ 2255 petitioner must allege facts that, if proven,
would warrant relief from her conviction or sentence. In
re Lindsey, 582 F.3d 1173, 1175 (10th Cir. 2009). A
court need not conduct an evidentiary hearing where a
petitioner's factual allegations are inherently
incredible, where they amount to conclusions instead of
assertions of fact, or where they contradict the record.
See id.; see also United States v.
Cervantes-Samaniego, No. 07-20099-JWL, 2012 WL 1788141,
at *1, *4 (D. Kan. May 17, 2012) (citations omitted). If the
court finds for the petitioner, “the court shall vacate
and set the judgment aside” and discharge the
petitioner or resentence her or “grant a new trial or
correct the sentence as may appear appropriate.” 28
U.S.C. § 2255(b).
Rippey first asserts an ineffective assistance of counsel
claim. Doc. 25 at 4. Ms. Rippey provides the following facts
to support this claim:
I received a 4 point upward departure on a part of my
indictment that was my own to use for work. He gave &
signed the vehicle to me. Was suppose[ed] to get dropped. My