United States District Court, S.D. Texas, Corpus Christi Division
MEMORANDUM OPINION & ORDER.
GONZALES RAMOS UNITED STATES DISTRICT JUDGE.
before the Court is Defendant/Movant Rosa Oralia
Guerrero's motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255. D.E. 129. Movant
seeks a sentence reduction under Amendment 794 to the
Sentencing Guidelines based on her allegedly minor role. The
United States has moved to dismiss this action on the grounds
that Movant waived her right to collaterally attack her
sentence and the issue she raises is not cognizable under 28
U.S.C. § 2255. D.E. 140. For the reasons stated below,
Movant's § 2255 motion is DENIED.
10, 2015, Movant was charged with conspiracy to possess with
intent to distribute more than 1, 000 kilograms of marijuana
in violation of 21 U.S.C. §§ 846, 841(a)(1), and
841(b)(1)(A). On September 3, 2015, Movant entered into a
plea agreement with the Government in which she waived her
right to appeal or collaterally attack her conviction or
sentence. During rearraignment before the Magistrate Judge,
Movant acknowledged that she had read the indictment, and she
understood the charge and had discussed it with her attorney.
Rearraignment Tr., D.E. 136, pp. 10-11. She also identified
the plea agreement she signed and testified that she
discussed it with her attorney before she signed it.
Id., p. 9. The Magistrate Judge reviewed
Movant's waiver of her right to appeal or collaterally
attack her conviction or sentence. Id., pp. 29-30.
Movant testified that she understood her rights and her
waiver, and that she and her attorney had gone over the
waivers before she signed the plea agreement. Id.,
Magistrate Judge advised Movant of the minimum punishment of
10 years' imprisonment and the maximum punishment of
life, followed by supervised release of 5 years up to life; a
fine of up to $10, 000, 000; and a special assessment of
$100. Id., p. 19- 20. Movant was advised that her
guideline punishment range would be based upon the present
offense and her criminal history using the Sentencing
Guidelines. Id., pp. 23-24. She testified that she
understood. Id., p. 24. Movant further testified
that her decision to plead guilty was voluntary and that she
had not been promised leniency or forced to plead guilty.
Id. The Government outlined the facts it relied upon
to charge Movant with conspiracy to possess with intent to
distribute marijuana, and Movant agreed with the recitation.
Id., pp. 36-51. This Court accepted the Findings and
Recommendation on Plea of Guilty and ordered the Probation
Office to prepare a Presentence Investigation Report. D.E.
base offense level, based on 5, 150.8 kilograms of marijuana,
was 32. She received a two-level enhancement pursuant to
U.S.S.G. § 3B1.1(b) because she was a manager or
supervisor and the criminal activity involved more than five
participants and was extensive. Her criminal history category
was I, resulting in a guideline range of 168 to 210
Movant's December 15, 2015 sentencing, the Court granted
a three-level credit for acceptance of responsibility and a
leadership role adjustment of two levels instead of three.
This established a guideline sentence of 108 to 135
months' imprisonment; however, under the statutory
minimum, Movant's guideline became 120 to 135 months. The
Court adopted the PSR as modified and sentenced Movant to the
mandatory minimum 120 months, to be followed by 5 years'
supervised release. Judgment was entered the same day. Movant
did not appeal.
judgment became final on January 1, 2016. Movant filed the
present motion under 28 U.S.C. § 2255 on July 28, 2016.
It is timely.
§ 2255 motion raises one claim: she is entitled to a
sentence reduction under Amendment 794 to the United States
28 U.S.C. § 2255
are four cognizable grounds upon which a federal prisoner may
move to vacate, set aside, or correct his sentence: (1)
constitutional issues, (2) challenges to the district
court's jurisdiction to impose the sentence, (3)
challenges to the length of a sentence in excess of the
statutory maximum, and (4) claims that the sentence is
otherwise subject to collateral attack. 28 U.S.C. §
2255; United States v. Placente, 81 F.3d 555, 558
(5th Cir. 1996). Section 2255 relief “is reserved for
transgressions of constitutional rights and for a narrow
range of injuries that could not have been raised on direct
appeal and would, if condoned, result in a complete
miscarriage of justice.” United States v.
Vaughn, 955 F.2d 367, 368 (5th Cir. 1992).