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Trevino v. United States

United States District Court, S.D. Texas, Brownsville Division

January 10, 2017

TINA MARIE TREVINO, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 1:14-cr-443-l

          ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          Rolando Olvera United States District Judge.

         Before the Court is the "Magistrate Judge's Amended Report and Recommendation" (Docket No. 9)[1] 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.

         On 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.

         First, 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.[2] 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.

         Furthermore, 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.

         Second, 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.

         Therefore 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.

         The Clerk is ORDERED to close this case.

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Notes:

[1] 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.

[2] Hereafter Petitioner's criminal case docket entries will be referred to as "CR Docket ...


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