United States District Court, E.D. Michigan, Northern Division
ORDER DENYING MOTION TO VACATE SENTENCE UNDER 28
U.S.C. § 2255, DENYING CERTIFICATE OF APPEALABILITY, AND
DENYING PERMISSION TO PROCEED IN FORMA PAUPERIS
L. LUDINGTON United States District Judge.
September 17, 2015, Petitioner Raul Humberto Rodriguez was
sentenced to sixty-three months imprisonment after pleading
guilty to possessing cocaine with the intent to distribute
and aiding and abetting. ECF No. 55. On September 27, 2016,
Petitioner filed a motion to vacate his sentence under 28
U.S.C. § 2255. ECF No. 98. Petitioner argues that he
should be granted relief because he had only a “minor
role” in the offense. In support, he cites United
States v. Quintero-Leyva, 823 F.3d 519, 523 (9th Cir.
2016), where the Ninth Circuit held that U.S.S.G. §
3B1.2's recent amendment, Amendment 794, was meant to be
“clarifying.” For that reason, the Ninth Circuit
held that the amendment applies retroactively to direct
appeals. On October 6, 2016, the Court ordered the Government
to respond to Petitioner's motion. ECF No. 101. That
response was filed on October 21, 2016. ECF No. 105. For the
reasons stated below, Petitioner's motion to vacate his
sentence will be denied.
justify relief under 28 U.S.C. § 2255, an inmate must
allege: “1) an error of constitutional magnitude; (2) a
sentence imposed outside the statutory limits; or (3) an
error of fact or law that was so fundamental as to render the
entire proceeding invalid.” Short v. United
States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting
Mallett v. United States, 334 F.3d 491, 496- 97 (6th
Cir. 2003)). Petitioner is arguing that he should receive the
retroactive benefit of an amendment to the United States
Sentencing Guidelines that was issued after he was sentenced.
In United States v. Quintero-Leyva, the Ninth
Circuit held that Amendment 794 applied retroactively on
direct appeal. 823 F.3d 519, 523 (9th Cir. 2016). The Sixth
Circuit has subsequently adopted the reasoning and holding of
Quintero-Levya. United States v. Carter,
No. 15-3618, 2016 WL 5682707, at *6 (6th Cir. Oct. 3, 2016).
Amendment 794 has not, however, been held to be retroactive
on collateral appeal. See Aguas-Landaverde v. United
States, No. 2:15-CR-00183, 2016 WL 5341799, at *2 (S.D.
Ohio Sept. 23, 2016), report and recommendation adopted, No.
2:15-CR-00183(2), 2016 WL 6070480 (S.D. Ohio Oct. 17, 2016)
(collecting cases); United States v. Tapia, No.
8:14-CR-30-T-23TBM, 2016 WL 4815150, at *1 (M.D. Fla. Sept.
14, 2016); United States v. Perez-Carrillo, No.
7:14CR00050, 2016 WL 4524246, at *1 (W.D. Va. Aug. 26, 2016);
Young v. United States, No. 3:16-CV-3139, 2016 WL
4472937, at *2 (C.D. Ill. Aug. 24, 2016).
proper avenue for a defendant seeking a sentence reduction
based on an amendment to the Sentencing Guidelines is to file
a motion under 18 U.S.C. § 3582(c)(2).”
Young, 2016 WL 4472937, at *2. Even if
Petitioner's motion was construed as an motion for relief
under § 3582(c)(2), however, Petitioner would still not
be entitled to relief. A district may resentence a defendant
pursuant to a sentencing guideline amendment only if the
Sentencing Commission has determined that the amendment is
retroactive. United States v. Horn, 679 F.3d 397,
400 (6th Cir. 2012). Amendments that have been deemed
retroactive are listed in U.S.S.G. 1B1.10(d), and Amendment
794 is not listed. See Logan v. United States, No.
5:12 CR 286, 2016 WL 5338060, at *5 (N.D. Ohio Sept. 23,
2016). Thus, even if Petitioner's motion was construed as
a motion for resentencing under § 3583(c)(2), Petitioner
would not be entitled to relief.
Petitioner may appeal this Court's dispositive decision,
a certificate of appealability must issue. See 28
U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A
certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
When a court rejects a habeas claim on the merits, the
substantial showing threshold is met if the petitioner
demonstrates that reasonable jurists would find the district
court's assessment of the constitutional claim debatable
or wrong. See Slack v. McDaniel, 529 U.S. 473,
484-85 (2000). “A petitioner satisfies this standard by
demonstrating that . . . jurists could conclude the issues
presented are adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322,
327 (2003). In applying that standard, a district court may
not conduct a full merits review, but must limit its
examination to a threshold inquiry into the underlying merit
of the petitioner's claims. Id. at 336-37.
“The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” Rules Governing § 2254 Cases, Rule
11(a), 28 U.S.C. foll. § 2254.
considered the matter, the Court concludes that Petitioner
has failed to make a substantial showing of the denial of a
constitutional right. Accordingly, a certificate of
appealability is not warranted in this case. The Court
further concludes that Petitioner should not be granted leave
to proceed in forma pauperis on appeal, as any
appeal would be frivolous. See Fed. R. App. P.
it is ORDERED that Petitioner's motion
for relief pursuant to 28 U.S.C. § 2255 is
further ORDERED that a certificate of
appealability is DENIED.
further ORDERED that leave to proceed in