Schindler v. United States

          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

          LEE ANN RENO UNITED STATES MAGISTRATE JUDGE.

         Before 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 dismissed.

         I.

         PROCEDURAL HISTORY

         On May 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.^[1] [ECF 194, 195]. Petitioner did not file a direct appeal of his conviction and sentence.^[2]

         On July 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 3].

         On 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 in 2013.

         On June 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].

         II.

         PETITIONER'S GROUNDS

         In his 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 federal ...