United States District Court, E.D. Texas, Tyler Division
MEMORANDUM OPINION ADOPTING REPORT AND RECOMMENDATION
AND ENTERING FINAL JUDGMENT
Clark, United States District Judge
Fermin Diaz, an inmate confined at the Adams County
Correctional Institution in Mississippi, proceeding pro
se, filed the above-styled motion to vacate, set aside,
or correct his federal sentence under 28 U.S.C. § 2255.
This Court ordered the matter be referred to the United
States Magistrate Judge.
in federal custody pursuant to a conviction for one count of
conspiracy to possess with intent to distribute and the
distribution of more than ten kilograms of methamphetamine
under 21 U.S.C. § 846 and one count of the use and
carrying a firearm during a drug trafficking crime under 18
U.S.C. § 924(c), in case number 6:06-cr-46. On November
9, 2006, Diaz entered a guilty plea in accordance with a
negotiated plea agreement. Pursuant to the agreement, on June
12, 2007, Diaz was sentenced to 135 months' imprisonment
for the conspiracy charge and 60 months' imprisonment on
the firearm charge-to be served consecutively. The formal
judgment and sentence was entered on June 20, 2007.
See 6:06-cr-46, Dkt. #752. Diaz did not file a
15, 2015, the Court reduced Diaz's sentence for the
conspiracy count to the statutory minimum of 120 months'
imprisonment under 18 U.S.C. § 3582 after a retroactive
amendment to the sentencing guidelines for drug offenses.
See 6:06-cr-46, Dkt. #849. Consequently, Diaz is
serving a total of fifteen years' imprisonment.
filed this instant section 2255 motion in August 2016. He
sought a downward departure under 18 U.S.C. § 924(e)(2).
He cited Johnson v. United States, 135 S.Ct. 2551
(2015), and Welch v. United States, 136 S.Ct. 1257
(2016), in support of his motion. Diaz also maintains that it
“was very clear that the firearm [did] not belong to
petitioner and also he was indicted by [a] unreliable
witness.” Diaz also argued that under Bailey v.
United States, 516 U.S. 137 (1995), Court must vacate
his convictions for the “use” of a firearm during
the drug trafficking offense. Specifically, he maintained
that “it was very clear that the firearms [did not]
belong to petitioner” and that “evidence of the
proximity and accessibility of the firearm to the drug or
drug proceeds is not alone sufficient to support a conviction
for ‘use' under the statute.”
review of the pleadings and the underlying criminal record,
the Magistrate Judge issued a Report recommending that,
because his motion was both untimely and meritless,
Diaz's motion should be dismissed. Diaz has filed timely
objections, (Dkt. #10).
objections, Diaz maintains that his plea does not
“qualify as intelligent” because he did not
receive “real notice” of the charge against him.
He also reiterates his main argument within his section 2255
motion: The firearm used during the crime did not belong to
him and the State did not prove “active
employment” of the firarm.
2255 is “fundamentally different from a direct
appeal.” United States v. Drobny, 955 F.2d
990, 994 (5th Cir. 1992). Section 2255 “provides relief
for a petitioner who can establish that either (1) his
sentence was imposed in violation of the Constitution or laws
of the United States, (2) the sentencing court was without
jurisdiction to impose the sentence, (3) the sentence was in
excess of the maximum authorized by law, or (4) the sentence
is subject to collateral attack.” U.S. v.
Seyfert, 67 F.3d 544, 546 (5th Cir. 1999) (citing
United States v. Faubion, 19 F.3d 226, 232 (5th Cir.
the Antiterrorism and Effective Death Penalty Act (AEDPA) of
1996, which imposed a number of habeas corpus reforms, an
inmate must file a section 2255 motion within one year of the
(1) the date on which the judgment of conviction becomes
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from ...