United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
A. FITZWATER SENIOR JUDGE
Johnny Ray Cheek’s (“Cheek’s”) April
18, 2019 motions to reduce sentence and for leave to proceed
in forma pauperis are denied.
pleaded guilty to bank robbery and using, carrying, and
brandishing a firearm during or in relation to a crime of
violence. He was sentenced to consecutive 57- and 84-month
terms of imprisonment and a 3-year term of supervised
release. See United States v. Cheek, No.
3:11-CR-157-D (N.D. Tex. 2012), appeal dism’d,
508 Fed. Appx. 346 (5th Cir. 2013). Cheek unsuccessfully
sought relief under 28 U.S.C. § 2255 and 28 U.S.C.
§ 2241, contending that his sentence for the firearm
offense should not be served consecutively to the term
imposed for the bank robbery offense. See Cheek v. United
States, 2013 WL 4561242 (N.D. Tex. 2013); Cheek v.
Chandler, 2013 WL 4561377 (N.D. Tex. 2013). And his
successive § 2255 motions were subsequently transferred
to the court of appeals, where authorization for successive
filing was denied. Cheek v. United States, 2014 WL
2938091 (N.D. Tex. 2014); Cheek v. United States,
622 Fed. Appx. 449 (5th Cir. 2015) (per curiam); see also
Cheek v. United States, No. 3:16-CV-57-D (N.D. Tex.
2016) (identical successive motion dismissed without
prejudice), certificate of appealability
denied, No. 16-10354 (5th Cir. Mar. 15, 2017).
Cheek’s habeas petition under the savings clause of
§ 2241 was dismissed for want of jurisdiction. See
Cheek v. Warden FCI, 2016 WL 3004851 (N.D. Tex. Apr. 26,
2016), rec. adopted, 2016 WL 2989057 (N.D. Tex. May
24, 2016). And his successive § 2255 motion challenging
his sentence under 18 U.S.C. § 924(c)(1) based on
Johnson v. United States, ___ U.S.___, 135 S. Ct.
2551, 2563 (2015), was transferred to the Fifth Circuit,
where leave to file was again denied. Cheek v. United
States, No. 3:16-CV-1514-D (N.D. Tex. July 21, 2016).
now seeks to “vacate, set aside, [or] correct [his]
sentence.” Relying on § 401 of the First Step Act,
Pub. L. No. 115-391, 132 Stat. 5194 (2018), and
“Amendment 493,” he seeks to reduce his criminal
history category and ultimately his sentence.
court lacks jurisdiction to reduce Cheek’s sentence.
See United States v. Early, 27 F.3d 140, 141 (5th
Cir. 1994) (per curiam) (dismissing motion for reduction of
sentence because it “was unauthorized and without
jurisdictional basis”). Cheek has failed to cite any
legal authority permitting the court to modify his sentence
at this late date, and the court has found none.
Cheek’s motion was not filed by the government or made
within 14 days of sentencing, it cannot be construed as a
request for Rule 35 sentence correction or reduction.
See Fed. R. Crim. P. 35; Early, 27 F.3d at
141. Likewise, the relief sought is not authorized by 18
U.S.C. § 3582(c)(2) because the request is not premised
on a retroactive amendment to the United States Sentencing
Guidelines. See Early, 27 F.3d at 142; United
States v. Doublin, 572 F.3d 235, 237 (5th Cir. 2009)
(holding that § 3582(c)(2) permits discretionary
modification of defendant’s sentence in certain cases
where sentencing range has been subsequently lowered by
Sentencing Commission); U.S.S.G. § 1B1.10(a).
§ 401 of the First Step Act does not apply to Cheek.
While § 401 changed both the length of certain drug
mandatory minimum penalties and the types of prior offenses
that can trigger enhanced penalties under 21 U.S.C. §
851, Cheek was not sentenced for a drug offense or subjected
to enhanced penalties under § 851. Further, to the
extent he is relying on § 403, there was no stacking of
gun offenses under 18 U.S.C. § 924(c)(1)(C), and, thus,
it has no bearing on his case. Additionally, the revisions in
§§ 401 and 403 are not retroactive, and they apply
only to defendants sentenced after December 20, 2018.
liberally construing the motion to reduce sentence to seek
§ 2255 relief, the court lacks jurisdiction to consider
the request because Cheek has not received permission from
the court of appeals to file a successive § 2255 motion.
See 28 U.S.C. §§ 2255(h) and 2244(b)
(limiting circumstances under which defendant may file
successive application); United States v. Key, 205
F.3d 773, 774 (5th Cir. 2000) (per curiam) (holding §
2244(b)(3)(A) constitutes a jurisdictional bar unless court
of appeals has first granted permission to file successive
the court denies Cheek’s motions to reduce sentence and
for leave to proceed in forma pauperis and
prospectively certifies that any appeal of this memorandum
opinion and order would not be taken in good faith.
See 28 U.S.C. § 1915(a)(3); Fed. R. App. P.
24(a)(3). In support, the court finds that any appeal would
present no legal point of arguable merit and would therefore
be frivolous. If Cheek files an appeal, he may challenge this
certification by filing a separate motion to proceed in
forma pauperis on appeal with the Clerk of the Court,
U.S. Court of Appeals for the Fifth Circuit. See
Fed. R. App. P. 24(a)(5).
Cheek’s motion as a successive § 2255 motion, the
motion is dismissed without prejudice for lack of
jurisdiction and for failure to obtain prior authorization
from the United States Court of Appeals for the Fifth Circuit
to file a successive § 2255 motion. See 28
U.S.C. §§ 2255(h) & 2244(b)(3); 28 U.S.C.
§ 1631. Pursuant to Fed. R. App. P. 22(b), Rule 11(a) of
the Rules Governing Section 2255 Proceedings, and 28 ...