United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
KINKEADE, UNITED STATES DISTRICT JUDGE
the Court is Petitioner's petition to vacate, set-aside,
or correct sentence pursuant 28 U.S.C. § 2255. For the
foregoing reasons, the Court denies the petition.
21, 2013, Petitioner pled guilty to conspiracy to possess
with intent to deliver methamphetamine in violation of 21
U.S.C. §§ 846 and 841(a)(1), (b)(1)(B). On January
22, 2014, the district court sentenced him to 144 months in
prison. On July 7, 2015, the Fifth Circuit Court of Appeals
affirmed. United States v. Velaz, 609 Fed.Appx. 226
(5th Cir. 2015).
August 15, 2016, Petitioner filed the instant § 2255
petition. He argues he should receive a mitigation role
adjustment to his sentence under § 3B1.2 of the
sentencing guidelines as clarified by Amendment 794. On
November 8, 2016, Petitioner filed a traverse in which he
appears to argue that his sentence is unlawful under the
Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2551 (2015), which invalidated the
residual clause of the Armed Career Criminal Act (ACCA).
claim that he is entitled to a reduced sentence under
Amendment 794 is not cognizable under § 2255. See
United States v. Williamson, 183 F.3d 458, 462 (5th Cir.
1999) (stating misapplication of the sentencing guidelines is
not a cognizable claim under 28 U.S.C. § 2255);
United States v. Vaughn, 955 F.2d 367, 368 (5th Cir.
1992) (per curiam). Instead, a claim for reduction of
sentence due to a retroactive guideline amendment should be
brought under 18 U.S.C. § 3582(c)(2). United States
v. Towe, 26 F.3d 614, 616 (5th Cir. 1994)
even if the Court construed Petitioner's motion as one
brought under § 3582 (c)(2), he would not be entitled to
relief. Under 18 U.S.C. § 3582(c)(2) a court may modify
a previously imposed sentence if the defendant's
applicable sentencing range under the sentencing guidelines
has subsequently been lowered by the Sentencing Commission.
See United States v. Doublin, 572 F.3d 235, 237
(5th Cir. 2009); see also U.S.S.G. §
1B1.10(a). Section 3582(c)(2) applies only to retroactive
guidelines amendments, as set forth in the guidelines policy
statement. See U.S.S.G. § 1B1.10(a).
794 became effective on November 1, 2015. It did not alter
the language of U.S.S.G. § 3D1.2, but merely clarified
that, when determining a defendant's role in criminal
activity for purposes of § 3B1.2, the court should
compare the defendant's role to other participants in the
criminal activity at issue, not to persons participating in
other similar crimes.
on direct appeal, a clarifying amendment is not retroactively
applicable unless it is listed in U.S.S.G. § 1B1.10(d).
See United States v. Drath, 89 F.3d 216, 217-18
(5th Cir. 1996); United States v.
Rodriguez, 306 Fed. App'x 147, 148 (5th
Cir. 2009). Amendment 794 is not listed in U.S.S.G. §
1B1.10(d). See United States v. Gomez-Valle, 828
F.3d 324, 330 (5th Cir. 2016). Therefore, it does
not apply retroactively under § 3582(c), and Petitioner
is not entitled to relief.
Johnson v. United States
Johnson, the Supreme Court considered the residual
clause of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), which
defines “violent felony” to include any felony
that “involves conduct that presents a serious
potential risk of physical injury to another.”
(Id.) The Court found the residual clause to be
Petitioner was not sentenced under the ACCA, he argues that
the career offender enhancement under USSG § 4B1.2(a)(2)
contains the same language as the ACCA's residual clause,
and is therefore unconstitutional. Section 4B1.2(a) defines a
“crime of violence” as any crime punishable by
imprisonment for a term exceeding one year that (1) has as an
element the use, attempted use, or threatened use of physical
force against another, or (2) is burglary, arson, or