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 Juan German Hernandez,
Jr.'s motion to vacate, set aside, or correct sentence
pursuant to 28 U.S.C. § 2255 and memorandum of law in
support. D.E. 49, 50. Movant seeks a sentence reduction under
Amendment 794 to the Sentencing Guidelines based on his
allegedly minor role. The United States has moved to dismiss
this action on the grounds that Movant waived his right to
collaterally attack his sentence and the issue he raises is
not cognizable under 28 U.S.C. § 2255. D.E. 62. For the
reasons stated below, Movant's motion is DENIED.
8, 2013, Movant was charged with conspiracy and possession
with intent to distribute more than 500 grams of
methamphetamine in violation of 21 U.S.C. §§ 846,
841(a)(1), and 841(b)(1)(A). On July 10, 2013, Movant pled
guilty to the conspiracy charge pursuant to a written plea
agreement with the Government in which he waived his right to
appeal or collaterally attack his conviction or sentence.
During rearraignment, Movant acknowledged that he had the
indictment, and he understood the charge and had discussed it
with his attorney. Rearraignment Tr., D.E. 58, p. 12. He also
identified the plea agreement he signed and testified that he
discussed it with his attorney before he signed it.
Id., p. 30. The Court reviewed Movant's waiver
of his right to later challenge his conviction or sentence.
Id., pp. 31-32. Movant testified that he understood
his rights and his waiver, and that he and his attorney had
gone over the waiver before he signed the plea agreement.
Id. The Court advised Movant of the minimum
punishment of ten years' imprisonment and the maximum
punishment of life, followed by supervised release of five
years up to life; a fine of up to $10, 000, 000; and a
special assessment of $100. Id., p. 18. Movant was
advised that his guideline punishment range would be based
upon the present offense and his criminal history using the
Sentencing Guidelines. Id., p. 25. He testified that
he understood. Id. Movant further testified that his
decision to plead guilty was voluntary and that he had not
been promised leniency or forced to plead guilty.
Id., p. 26. The Government outlined the facts it
relied upon to charge Movant with conspiracy to possess with
intent to distribute methamphetamine, and Movant agreed with
the recitation. Id., pp. 34-38. The Court accepted
Movant's guilty plea and ordered the Probation Office to
prepare a Presentence Investigation Report (PSR).
calculated Movant's base offense level, based on 15.572
kilograms of methamphetamine, at 38. He received a two-level
enhancement pursuant to U.S.S.G. § 2D1.1(b)(5) because
the offense involved the importation of methamphetamine and
he was not subject to an adjustment for mitigating role.
After credits for safety valve and acceptance of
responsibility, his total offense level was 35. Movant's
criminal history category was I, resulting in a guideline
range of 168-210 months' imprisonment. At sentencing, the
Court adopted the PSR without change and sentenced Movant to
120 months, to be followed by five years' supervised
release. Judgment was entered October 2, 2013. Movant did not
filed the present motion under 28 U.S.C. § 2255 on
October 22, 2016. It is timely. See 28 U.S.C. §
November 1, 2015, the United States Sentencing Commission
issued Amendment 794, which amended the commentary to
U.S.S.G. § 3B1.2 to clarify the factors a district court
should consider in making a determination of minor or
mitigating role. Movant claims that he is entitled to a
sentence reduction under Amendment 794 and that his sentence
violates the Equal Protection Clause of the Fifth Amendment
because he has not been treated equally with those whose
sentences were based upon the proper minor role adjustment as
the Sentencing Commission intended.
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).
claims his sentence is unconstitutional because he did not
receive a downward adjustment for minor role under U.S.S.G.
§ 3B1.2. “A district court's technical
application of the Guidelines does not give rise to a
constitutional issue cognizable under § 2255.”
United States v. Segler, 37 F.3d 1131, 1134 (5th
Cir. 1994) (citing United States v. Vaughn, 955 F.2d
367, 368 (5th Cir. 1992)). Even if it did, Movant's claim
is barred by his waiver to collaterally attack his sentence
based upon the terms of his plea agreement.
record supports a finding that Movant's guilty plea was
knowing and voluntary. As set forth supra, he was
questioned at rearraignment regarding his understanding of
the charges against him and was informed of the minimum and
maximum punishments. Movant now claims that he was
“coerced to sign” the plea agreement (D.E. 50, p.
3); however, he swore at rearraignment that he was not
promised leniency for his plea or forced to plead guilty. He
was also questioned regarding the plea agreement and his
waiver of his right to later challenge his conviction or
sentence. Movant testified he understood the plea agreement
and understood that he was waiving this right.
give great weight to a defendant's statements during the
plea colloquy. Blackledge v. Allison, 431 U.S. 63,
73 (1977) (“Solemn declarations in open court carry a
strong presumption of verity.”); United States v.
Cothran, 302 F.3d 279, 283-84 (5th Cir. 2002);
United States v. Abreo, 30 F.3d 29, 31 (5th Cir.
1994) (placing great weight on defendant's statements
during plea). Movant's testimony that he understood he
was waiving his right to later challenge his conviction ...