United States District Court, S.D. Texas, Laredo Division
REPORT AND RECOMMENDATION OF THE UNITED STATES
Sheldon United States Magistrate Judge.
Emesto Javier Martinez, pro se, filed the pending
§ 2255 Motion in which he requests a re-sentencing or,
in the alternative, that his sentence be reduced to the
120-month statutory minimum. (Dkt. No. 1; Cr. Dkt. No.
The District Court has referred this matter to the
undersigned United States Magistrate Judge. (Dkt. No. 4.)
Upon review of the pleadings, filings, and the applicable
law, and for the reasons stated herein, the Magistrate Judge
respectfully submits this Report and Recommendation, pursuant
to 28 U.S.C. § 636(b)(1)(B), recommending that
Petitioner's Motion be DENIED and that
Petitioner's civil case be DISMISSED WITH
pled guilty with a written plea agreement to importation of
50 grams or more of methamphetamine in violation of 21 U.S.C.
§§ 952(a), 960(a)(1) and (b)(1)(H). (Cr. Dkt.
Minute Entry Dated September 20, 2013; Cr. Dkt. Nos. 31, 32,
46.) In his plea agreement, Petitioner waived his appellate
rights and his right to contest his conviction or sentence by
means of any post-conviction proceeding. (Cr. Dkt. No. 31 at
3.) Petitioner faced a guideline range of 262 to 327 months
of imprisonment. (Dkt. No. 35 at 6-7, 15.) At sentencing,
Petitioner requested a minor role reduction pursuant to
U.S.S.G. § 3B1.2. (Cr. Dkt. No. 60 at 19:9-22:25.) The
District Court denied this request by stating that Petitioner
did not play an average role in the criminal operation
because his role was essential. (Id. at 19:9-22:25.)
The District Court then sentenced Defendant on June 13, 2014
to 168 months of imprisonment. (Id. at 29:14-22; Cr.
Dkt. No. 46.) Therefore, even though the District Court did
not grant Petitioner's request for a minor role
reduction, it still departed downward by almost 100
months from the Guideline Range of 262-327 months of
imprisonment. After sentencing, Petitioner filed a Notice of
Non-Appeal and never appealed his case. (Cr. Dkt. No. 45.)
794 went into effect in 2015 after Defendant was sentenced.
Sentencing Guidelines for United States Courts, 80 FR
25782-01 (May 5, 2015). Before the amendment, the commentary
to § 3B1.2 provided that the mitigating role adjustment
was available to any defendant whose level of participation
made one less culpable than the average participant in the
criminal activity. U.S.S.G. § 3B1.2 cmt. 3(A) (2014).
Amendment 794 did not change the text of § 3B1.2, but it
changed the commentary by adding a non-exhaustive list of
factors and other language for consideration when deciding
whether to apply § 3B1.2. Sentencing Guidelines for
United States Courts, 80 FR 25782-01 (May 5, 2015); see
United States v. Gomez-Valle, 828 F.3d 324, 329 (5th
Petitioner filed a § 2255 motion requesting a
re-sentencing under Amendment 794, but such a claim is not
cognizable in a § 2255 motion. United States v.
Lincon, 736 Fed. App'x 515, 515 (5th Cir. 2018) (per
curiam); United States v. Williamson, 183 F.3d 458,
462 (5th Cir. 1999); see also United States v.
Vaughn, 955 F.2d 367, 368 (5th Cir. 1992) (per curiam)
("A district court's technical application of the
Guidelines does not give rise to a constitutional
issue."). In certain circumstances, however, the
district court may still reduce a sentence under an amendment
to the Guidelines pursuant to 18 U.S.C. § 3582(c)(2).
But § 3582(c)(2) only applies to retroactive guidelines
amendments that are listed in U.S.S.G. § IB 1.10(d), and
Amendment 794 is not listed in § IB 1.10(d). U.S.S.G.
§ IB 1.10(d); see Lincon, 736 Fed.Appx. at 516.
Accordingly, Petitioner's claim is not cognizable in a
§ 2255 motion.
foregoing reasons, the Magistrate Judge recommends that the
District Court DENY Petitioner's §
2255 Motion (Dkt. No. 1; Cr. Dkt. No. 32) and that
Petitioner's civil action be DISMISSED WITH
of Right to Object
Pursuant to 28 U.S.C. § 636, the parties are granted
fourteen days to submit written objections to the proposed
findings and recommendations of a magistrate judge. A party
filing objections must specifically identify those findings
or recommendations to which objections are being made. The
District Court need not consider frivolous, conclusive, or
general objections. Battle v. United States Parole
Comm'n, 834 F.2d 419, 421 (5th Cir. 1987) (quoting
Nettles v. Wainwright, 611 F.2d 404, 410 n.8 (5th
Cir. 1982) (en banc), overruled on other grounds by
Douglass v. United Services Auto. Ass'n, 79 F.3d
1415 (5th Cir. 1996) (en banc)).
party's failure to file written objections to the
proposed findings and recommendations contained in a Report
within fourteen (14) days after being served with a copy of
the Report bars that party from de novo review by
the District Court of the proposed findings and
recommendations and, except upon grounds of plain error, bars
the party from appellate review of proposed factual findings
and legal conclusions accepted by the District Court to which
no objections are filed. See 28 U.S.C. §
636(b)(1); Thomas v. Am, 474 U.S. 140, 150-53
(1985); Douglass, 79 F.3d at 1428-29.
Clerk of Court is DIRECTED to send a copy of this Report and
Recommendation to Petitioner, Ernesto Javier Martinez, via
certified mail, return receipt requested.
 "Dkt." refers to the Civil
Action No. 5:18-CV-68; "Cr. Dkt." refers to the
Criminal Action No. 5:13-CR-827.