ORDER GRANTING GOVERNMENT'S MOTION TO DISMISS § 2255 MOTION

[Dkt. 4]

DEAN D. PREGERSON, District Judge.

Presently before the court is Plaintiff-Respondent United States of America ("the government)'s Motion to Dismiss Defendant-Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. Having considered the submissions of the parties, the court grants the motion and adopts the following Order.

I. Background

Petitioner pleaded guilty to one count of conspiracy to distribute over 100 grams of cocaine base and methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A)(iii), and Motion to Dismiss ("MTD"), Ex. A; Case No. CR 9-605, Dkt. 162.)1 At the time Petitioner entered her plea, she was subject to a 10-year mandatory minimum sentence. (MTD, Ex. A at 3-4; Dkt. 100; Dkt. 128.)

After Petitioner pleaded guilty, but before she was sentenced, Congress enacted the Fair Sentencing Act ("FSA"), which took effect August 3, 2010. See Dorsey v. United States, 132 S.Ct. 2321, 2329 (2012). Under the FSA, Petitioner would only have been subject to a five year mandatory minimum sentence rather than a ten year mandatory minimum. (MTD, Ex. A at 4.)

Petitioner was sentenced on December 13, 2010. At that time, the Supreme Court had not yet held that the FSA applied retroactively to defendants who had been convicted, but not sentenced, before the FSA's effective date. See Dorsey, 132 S.Ct. at 2335. Although the government did not concede that the FSA was retroactive, it nevertheless took the position that Petitioner should receive the benefits of the FSA. (MTD, Ex. A at 4.) The government recommended a low-end guidelines sentence of 92 months imprisonment and five years of supervised release. (Id. at 4, 8.) The court imposed a below guidelines sentence of 80 months imprisonment and five years of supervised release. (Dkt. 161-162.)

Petitioner now contends that the court erred in sentencing her by imposing a sentence under pre-FSA guidelines, and moves for relief pursuant to 28 U.S.C. § 2255. (Motion at 6B.)

II. Discussion

Section 2255 allows federal prisoners to file motions to vacate, set aside, or correct a sentence on the ground that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or 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). Petitioner claims that the court "plainly erred in imposing sentence under the pre-FSA statute." (Mot. at 6B.) Petitioner's motion also appears to suggest that her guilty plea should not bar her from relief under Section 2255 because the court plainly erred. Id.

Petitioner's primary contention appears to be that at the time she made her plea, she was incorrectly told that the applicable mandatory minimum was ten years.2 (Petitioner's Response at 2.) Thus, Petitioner argues, her plea hearing did not comport with Federal Rule of Criminal Procedure 11.3 Rule 11 requires that the court inform a defendant of and determine that the defendant understand, among other things, the maximum possible penalty and any mandatory minimum penalty. Fed. R. Crim. P. 11(b)(1)(H), (I).

First, Plaintiff entered her guilty plea before enactment of the FSA. Thus, at the time of Petitioner's plea hearing, the court could not have erred by informing Petitioner that the pre-FSA ten year mandatory minimum applied. Second, even if Petitioner were correct, a formal violation of Rule 11 cannot serve as the basis for a collateral attack under § 2255. United States v. Timmeck, 441 U.S. 780, 784 (1979); United States v. Dominguez Benitez, 542 U.S. 74, 81 n.6 (2004). Such a violation, which can be raised on direct appeal, "is neither constitutional nor jurisdictional," and cannot result "in a `complete miscarriage of justice' or in a proceeding `inconsistent with the rudimentary demands of fair procedure.'" Timmeck, 441 U.S. at 784; see also Castro v. United States, No.11-cr-232-IEG, 2012 WL 3629062 at *2-3 (S.D. Cal. Aug. 21, 2012); Fed. R. Crim P. 11(h) ("A variance from the requirements of this rule is harmless error if it does not affect substantial rights.").

Furthermore, Petitioner actually received the benefit she seeks by way of this motion. Petitioner seeks "to be re-sentenced under the FSA." (Mot. at 6B.) Petitioner was, however, sentenced under post-FSA guidelines. Indeed, the court could not possibly have imposed the 80 month sentence that it did if it had proceeded under the pre-FSA regime, which required a mandatory minimum sentence of 120 months. Accordingly, Petitioner's sentence involved no miscarriage of justice.

III. Conclusion

For the reasons stated above, the government's Motion to Dismiss is GRANTED. Petitioner's § 2255 motion is DISMISSED.

IT IS SO ORDERED.