United States District Court, N.D. Texas, Fort Worth Division
OPINION AND ORDER
O'CONNOR UNITED STATES DISTRICT JUDGE.
David Reeves (“Movant”) filed a motion to vacate,
set aside, or correct his federal sentence pursuant to 28
U.S.C. § 2255. Because it plainly appears that Movant is
not entitled to relief on his Section 2255 motion, the Court
concludes that the motion (ECF No. 1) should be summarily
dismissed. See Rule 4(b), Rules Governing Section
2255 Proceedings for the United States District Courts.
pleaded guilty to possession with intent to distribute
methamphetamine. See United States v. Reeves, No.
4:16-cr-00165-O-1 (N.D. Tex. Oct. 25, 2016), ECF No. 26. In
calculating his sentencing range, Movant's Presentence
Report (“PSR”) recommended that the Court
consider his possession and sale of methamphetamine from at
least February 2012 through his arrest in 2016, and so hold
Movant accountable for distributing 309 grams of
methamphetamine, in addition to the methamphetamine he
distributed during the instant offense. See United States
v. Reeves, No. 4:16-cr-00165-O-1 (N.D. Tex. Oct. 25,
2016), ECF No. 13 at 5-9. Using that calculation of
Movant's prior drug sales, his base offense level was set
at 30. See United States v. Reeves, No. 4:16-cr-
00165-O-1 (N.D. Tex. Oct. 25, 2016), ECF No. 13 at 10. The
PSR also set Movant's criminal history score at three
because of his 2004 Texas conviction for possession or
transportation with intent to manufacture a controlled
substance. See United States v. Reeves, No.
4:16-cr-00165-O-1 (N.D. Tex. Oct. 25, 2016), ECF No. 13 at
11. In all, Movant's PSR calculated his guideline
sentence as 97 to 121 months in prison. The Court adopted the
PSR's calculations and sentenced Movant to 97 months in
prison with three years of supervised release. See United
States v. Reeves, No. 4:16-cr-00165-O-1 (N.D. Tex. Oct.
25, 2016), ECF No. 26. He did not appeal.
seeks post-conviction relief. In his Section 2255 motion,
Movant argues that the Court erred in calculating his
sentence under the United States Sentencing Guidelines
(“U.S.S.G.”) by: (1) measuring his relevant
conduct to include his sales of methamphetamine before 2016;
and (2) using his prior Texas drug conviction to increase his
guideline range in violation of Mathis v. United
States, 136 S.Ct. 2243 (2016); United States v.
Tanksley, 848 F.3d 347 (5th Cir. 2017); and United
States v. Hinkle, 832 F.3d 567 (5th Cir. 2016).
first claims that the Court misapplied the U.S.S.G. by
over-representing his relevant conduct-namely, his prior
methamphetamine sales-under U.S.S.G. § 1B1.3.
See ECF No. 1 at 16 (arguing that the Court erred in
holding Movant responsible for past sales of methamphetamine
because he was in jail from 2008 through 2010 and all of the
evidence of those sales came from informants who were not
credible). However, Movant “may not raise this issue in
a collateral attack.” United States v.
Williamson, 183 F.3d 458, 462 (5th Cir. 1999).
“Section 2255 motions may raise only constitutional
errors and other injures that could not have been raised on
direct appeal that will result in a miscarriage of justice if
left unaddressed, ” and “[m]isapplications of the
Sentencing Guidelines fall into neither category and hence
are not cognizable in § 2255 motions.”
Id. (citation omitted). Because it is well settled
that “‘an attempt to challenge the court's
sentencing calculations is not a basis for a section 2255
proceeding, '” Wright v. United States,
3:16-cv-610-K, 2016 WL 949747, at *2 (N.D. Tex. Mar. 13,
2016) (quoting Momin v. United States, Nos.
3:07-cv-889-L & 3:04-cr-289-H, 2008 WL 1971390, at *1)
(N.D. Tex. Apr. 30, 2008), Movant's first claim is not
next claims that the Court erred in using his prior Texas
drug conviction to increase his guideline sentence in light
of Mathis, Tanksley, and Hinkle.
That claim is also a head-on attack of the Court's
application of the U.S.S.G. and is likewise not cognizable
here. See, e.g., Fisher v. United States,
No. 4:17-cv-50, 2017 WL 3781855, at *2 (E.D. Tex. July 13,
2017), rec. adopted 2017 WL 3725295 (E.D. Tex. Aug.
28, 2017) (“[R]elief is unavailable under § 2255
based on Mathis, Hinkle, and
Tanksley” because “the technical
application of the Sentencing Guidelines does not raise an
issue of constitutional dimension for purposes of § 2255
even if Movant could state a Section 2255 claim under
Mathis, Tanksley, or Hinkle, his
reliance on those cases is misplaced. Mathis,
Tanksley, and Hinkle involve the
enhancement of a defendant's sentence as a career
offender under either the Armed Career Criminal Act or the
U.S.S.G. But Movant was not charged, convicted, or sentenced
as a career offender. Rather, his prior Texas conviction was
used only to calculate his criminal history score. See
United States v. Reeves, No. 4:16-cr-00165-O-1 (N.D.
Tex. Oct. 25, 2016), ECF No. 13 at 11. So, neither
Mathis, Tanksley, nor Hinkle have
any application here. See, e.g., Mendieta v. United
States, No. A-14-cr-192 (1)-SS, 2017 WL 3401520, at *2
(W.D. Tex. Aug. 8, 2017). For these reasons, Movant's
Section 2255 motion is meritless.
review of the motion to vacate and the files and records of
this case, an evidentiary hearing appears unnecessary. No
evidentiary hearing is required if “the motion and the
files and records of the case conclusively show that the
prisoner is entitled to no relief.” 28 U.S.C. §
2255(b). In this instance, the matters reviewed by the Court
conclusively show that Movant is entitled to no relief.
the record in this case and pursuant to Federal Rule of
Appellate Procedure 22(b), Rule 11(a) of the Rules Governing
§§ 2254 and 2255 proceedings, and 28 U.S.C. §
2253(c), the Court denies a certificate of appealability.
Movant has failed to show (1) that reasonable jurists would
find this Court's “assessment of the constitutional
claims debatable or wrong, ” or (2) that reasonable
jurists would find “it debatable whether the petition
states a valid claim of the denial of a constitutional
right” and “debatable whether [this Court] was
correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 48 (2000).
event that Movant elects to file a notice of appeal, the
Court notes that he will need to pay the appellate filing fee