United States District Court, S.D. Texas, Brownsville Division
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND
Rolando Olvera United States District Judge.
the Court is the "Magistrate Judge's Amended Report
and Recommendation" (Docket No. 9) in the
above-captioned case. The Magistrate Judge's Amended
Report and Recommendation (hereafter "Amended
R&R") recommends that Tina Marie Trevino's
"Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal
Custody" (Docket No. 1) be dismissed with prejudice
because Trevino (hereafter "Petitioner") fails to
state a cognizable § 2255 claim. Docket No. 9 at 1. For
the reasons stated below, the Magistrate's Amended
R&R (Docket No. 9) is ADOPTED and Petitioner's §
2255 motion (Docket No.1) is DISMISSED.
January 3, 2017, Petitioner timely filed her objections to
the Magistrate's Amended R&R. In Petitioner's
"Response Towards Recommendation" (Docket No. 12),
she argues that "given the involvement of the
[Petitioner] in the criminal activity[, ] the [Petitioner]
feels she is entitled towards relief." Docket No. 12 at
2. The Court interprets this vague statement to incorporate
Petitioner's "Response Towards Recommendation of the
Pending 28 U.S.C. § 2255" (Docket No. 8), which
argues that the Sentencing Court failed to apply a
"minor role" reduction to her case and that
Amendment 794 3B1.2 applies retroactively to cases on direct
appeal. Docket No. 8 at 2.
Petitioner argues that she was not considered for a
"minor role" reduction, as permitted by Amendment
794. Docket No. 8 at 2. The conviction record indicates
otherwise. Petitioner's Presentence Report (hereafter
"PSR") recommended that Petitioner be assessed a
three-level enhancement for being a manager/supervisor in the
criminal activity for which she was charged. United
States of America v. Tina Marie Trevino, No.
4:14-cr-443-l, Docket No. 69 at 8. The Sentencing Court
rejected the PSR's three-level enhancement. CR Docket No.
113. Thus, the Sentencing Court considered Petitioner's
level of culpability and concluded that she was neither a
manager nor a minor participant.
Petitioner's challenge to the Court's finding that
she was an average participant does not give rise to a
cognizable § 2255 claim. A court's technical
application of the sentencing guidelines does not give rise
to a cognizable § 2255 claim. United States v.
Arias-Lopez, No. CA C-12-148, 2013 WL 628694, at *4
(S.D. Tex. Feb. 19, 2013); see also United States v.
Vaughn, 955 F.2d 367, 368 (5th Cir. 1992) (per curium)
("A district court's technical application of the
Guidelines does not give rise to a constitutional
issue."). Thus, Petitioner's first argument fails.
Petitioner argues that Amendment 794 applies retroactively to
cases on direct appeal. Docket No. 8 at 2. Whether or not
Amendment 794 applies on direct appeal is not relevant to
Petitioner's case. Petitioner is collaterally challenging
her conviction under 28 U.S.C. § 2255. Moreover,
Petitioner was sentenced on March 3, 2016- several months
after Amendment 794 took effect on November 1, 2015. Docket
No. 1 at 1. Thus, Petitioner's second argument fails.
the Magistrate Judge's Amended R&R (Docket No. 9) is
ADOPTED. It is further ORDERED, ADJUDGED, and DECREED that
Petitioner's § 2255 motion (Docket No. 1) is
DISMISSED with prejudice. A certificate of appealability
shall not issue.
Clerk is ORDERED to close this case.
 The Magistrate Judge filed the Amended
R&R to correct a transcription error in the Original
Report and Recommendation. Prior to the correction, the
Petitioner filed her "Response Towards Recommendation of
the Pending 28 U.S.C. § 2255" (Docket No. 8),
objecting to the Original Report and Recommendation.
 Hereafter Petitioner's criminal
case docket entries will be referred to as "CR Docket