United States District Court, S.D. Texas, Victoria Division
MEMORANDUM OPINION & ORDER.
D. RAINEY SENIOR U.S. DISTRICT JUDGE.
before the Court is Defendant/Movant Juan Manuel
Hernandez' motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255 and memorandum of
law in support. D.E. 76, 77. 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 has
not obtained the Fifth Circuit's permission to file a
successive § 2255 motion. D.E. 79.
14, 2013, Movant pled guilty to possession with intent to
distribute more than 500 grams of methamphetamine in
violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(A). The Presentence Investigation Report (PSR)
calculated Movant's base offense level, based on 16.5
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 credit for acceptance of responsibility, his total
offense level was 37. Movant's criminal history category
was I, resulting in a guideline range of 210-262 months'
imprisonment. At sentencing, the Court adopted the PSR
without change and sentenced Movant to a below-guideline
sentence of 198 months, to be followed by 5 years'
supervised release. Judgment was entered March 10, 2014.
did not appeal his conviction or sentence, but instead filed
a § 2255 motion on August 1, 2014, lodging five
different complaints concerning ineffective assistance of his
trial counsel. The Court denied Movant's § 2255
motion, and his appeal of that denial was dismissed for want
of prosecution on September 22, 2015.
mailed the present motion under § 2255 on October 27,
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 he is entitled to a sentence
reduction under Amendment 794, and his current 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. “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 present motion was filed after a previous
§ 2255 motion; thus, his current motion is a second or
pertinent part, 28 U.S.C. § 2255(h) provides:
second or successive motion must be certified as provided in
section 2244 by a panel of the ...