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United States v. Rippey

United States District Court, D. Kansas

November 19, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
CHRYSTAL M. RIPPEY (01), Defendant.

          MEMORANDUM AND ORDER

          DANIEL D. CRABTREE UNITED STATES DISTRICT JUDGE.

         This 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.

         I. Factual Background

         On 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.

         Before 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.

         When 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.

         Ms. Rippey did not appeal her conviction to the Tenth Circuit Court of Appeals. On June 24, 2019, Ms. Rippey, proceeding pro se, [1] 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.

         II. Legal Standard

         Section 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).

         III. Analysis

         A. Ground One

         Ms. 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 ...

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