United States District Court, N.D. Texas, Dallas Division
FINDINGS. CONCLUSIONS AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
D. STICKNEY UNITED STATES MAGISTRATE JUDGE.
cause of action was referred to the United States Magistrate
Judge pursuant to the provisions of Title 28, United States
Code, Section 636(b), as implemented by an order of the
United States District Court for the Northern District of
Texas. The Findings, Conclusions and Recommendation of the
United States Magistrate Judge follow:
filed this petition to vacate, set-aside, or correct sentence
pursuant to 28 U.S.C. § 2255. Petitioner pled guilty to
possession of a controlled substance with intent to
distribute, and aiding and abetting. On December 2, 2014, the
district court sentenced her to 48 months in prison. She did
not file an appeal.
August 1, 2016, Petitioner filed the instant § 2255
petition. She argues she should receive a mitigating role
adjustment to her sentence under § 3B1.2 of the
sentencing guidelines as clarified by Amendment 794.
claim that she 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), she 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. §
IB 1.10(a). Section 3582(c)(2) applies only to retroactive
guidelines amendments, as set forth in the guidelines policy
statement. See U.S.S.G. § IB 1.10(a).
794 became effective on November 1, 2015. It did not alter
the language of U.S.S.G. § 3D 1.2, 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. § IB
1.10(d). See United States v. Gomez-Valle, 828 F.3d
324, 330 (5th Cir. 2016). Therefore, it does not
apply retroactively under § 3582(c).
the record shows that the district court found Petitioner to
be a minimal participant and granted her a 4-level reduction
under U.S.S.G. § 3B 1.2(a). Petitioner's claim
should be denied.
foregoing reasons, the Court recommends that the motion to
vacate, set aside or correct sentence oursuant to 28 U.S.C. 6
2255 he denied.
FOR SERVICE AND NOTICE OF ...