United States District Court, N.D. Texas, Amarillo Division
FINDINGS, CONCLUSIONS AND RECOMMENDATION TO DISMISS
MOTION UNDER 28 U.S.C. SECTION 2255 TO VACATE, SET ASIDE, OR
CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY
ANN RENO UNITED STATES MAGISTRATE JUDGE.
the Court is the Motion Under 28 U.S.C. § 2255
to Vacate, Set Aside or Correct Sentence by a
Person in Federal Custody filed by petitioner PHILLIP
WADE SCHINDLER. [ECF 3]. For the reasons set forth below, the
undersigned finds petitioner's motion to vacate should be
17, 2013, petitioner pled guilty, pursuant to a Plea
Agreement, to the felony offense of distribution of and
possession with intent to distribute 9.3 grams of heroin in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C).
United States v. Schindler, No. 2:12-CR-9(01) [ECF
182, 183]. On July 26, 2013, an Addendum to the Presentence
Report was filed recommending an advisory Guideline
Imprisonment Range of 27 to 33 months based on a Total
Offense Level of 12 and a Criminal History Category of V.
[ECF 192-1]. On August 16, 2013, the district judge sentenced
petitioner to a term of 33 months imprisonment for the
distribution offense, a sentence at the top of the advisory
guideline range, and entered a corresponding
Judgment. [ECF 194, 195]. Petitioner did not file a
direct appeal of his conviction and sentence.
24, 2017, petitioner, confined in a Federal Correctional
Institution of the Federal Bureau of Prisons (BOP) and
proceeding pro se, purportedly placed the instant
motion to vacate in the prison mailing system, said motion
being received by the Court and filed stamped July 27, 2017.
[ECF 204]. Petitioner's motion was assigned the
above-referenced civil cause number and filed therein. [ECF
August 28, 2017, petitioner filed Defendant's Motion
and Questionnaire for Reduction of Sentence Pursuant
to 18 U.S.C. § 3582(c) in his criminal case seeking
a modification of his imposed 33-month term of imprisonment
based on Amendment 782 to the United States Sentencing
Guidelines, which became effective November 1, 2014 but
retroactively applies to cases sentenced prior to that date.
[ECF 205]. On October 16, 2017, the United States District
Judge denied petitioner's section 3582 motion stating:
Defendant's Motion for Sentence Reduction Pursuant to 18
U.S.C. § 3582(c)(2) based on Guideline Amendment 782 is
denied because Amendment 782 does not have the effect of
lowering the defendant's applicable guideline range. The
base level guideline for the amount of heroin possessed by
defendant SCHINDLER remains the same as when he was sentenced
5, 2018, respondent filed a response to petitioner's
motion to vacate in the instant civil case opposing relief
and requesting dismissal of petitioner's motion. [ECF 9].
motion to vacate, petitioner does not challenge his
conviction or the resulting sentence, nor does he contend
either his conviction or sentence was imposed in violation of
the United States Constitution or laws of the United States.
Instead, he requests:
1. a sentence reduction under 18 U.S.C. § 3582(c)(2)
pursuant to Amendment 782 to the United States Sentencing
Guidelines that provides a basis for reducing the base
offense level in the drug quantity tables; and
2. a 5-month time credit toward his 33-month federal sentence
for time he spent in Randall County Jail (presumably for time
in state custody after the filing of the complaint in his