United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR
POST-CONVICTION RELIEF 
G. EDMUNDS NANCY G. EDMUNDS UNITED STATES DISTRICT JUDGE.
October 14, 2014, Petitioner-Defendant Roy Dixon pleaded
guilty to engaging in a conspiracy to commit honest services
mail and wire fraud. (Dkt. 335). He was sentenced to 42
months of incarceration. Shortly after withdrawing his direct
appeal, Dixon filed the instant motion for relief from
judgment under 28 U.S.C. § 2255 and 18 U.S.C. §
3582. (Dkt. 590). Relying on Amendment 794 to the U.S.
Sentencing Guidelines, Dixon argues that he is eligible for a
two-level reduction based on his "minor role" in
the offense conduct. Even assuming the Court was persuaded
that Dixon was a minor participant, which it is not, his
request is procedurally unsound.
for the reasons specified more thoroughly below, the Court
DENIES Dixon's petition for post-conviction relief. 
794 went into effect on November 1, 2015, altering
Application Note 3(A) of U.S.S.G. § 3B1.2. Guideline
3B1.2 allows the Court to "reduce the offense level of a
defendant who was a 'minimal' or 'minor'
participant in the offense of conviction." United
States v. Sprouse, No. 12-122, 2017 WL 218376, at *1
(E.D. Tenn. January 18, 2017). Amendment 794 "provides
additional guidance to sentencing courts in determining
whether a [3B1.2] mitigating role adjustment applies."
U.S.S.G. app. C, amend. 794 (2015). Dixon argues that this
additional guidance, applied retroactively, qualifies him for
a reduction in sentence. But even assuming this was true, the
Court has no power to retroactively apply Amendment 794.
the Sentencing Commission has "the unusual explicit
power to decide whether and to what extent its
amendments reducing sentences will be given retroactive
effect." United States v. Horn, 679 F.3d 397,
400 (6th Cir. 2012) (emphasis in original). "Amendments
that have been deemed retroactive are listed in U.S.S.G.
1B1.10(d), . . ." Klosowski v. United States,
No. 12-20458, 2016 WL 6696023, at *2 (E.D. Mich. Nov. 15,
2016). As several courts have correctly noted,
"Amendment 794 is not on that list."
Sprouse, 2017 WL 218376, at *2; see also
Klosowski, 2016 WL 6696023, at *2 ("Amendments that
have been deemed retroactive are listed in U.S.S.G.
1B1.10(d), and Amendment 794 is not listed."). For that
reason, Dixon is not entitled to a reduction in sentence
under § 3582.
does his request fare any better under section 2255.
Ordinarily, "nonconstitutional errors  are not
cognizable on collateral review. Defendants must assert their
claims in the ordinary course of trial and direct
appeal." Grant v. United States, 72 F.3d 503,
506 (6th Cir. 1996). The Sixth Circuit has been clear that
"[r]elief is not available in a section 2255 proceeding
for a claim of nonconstitutional, sentencing-guideline error
when that error was procedurally defaulted through the
failure to bring a direct appeal." Hunter v. United
States, 160 F.3d 1109, 1115 (6th Cir. 1998). In fact,
several courts have specifically refused to consider
challenges premised under Amendment 794 on collateral review.
See Sprouse, 2017 WL 218376, at *1 ("Because
the instant defendant's case is not in a posture of
direct appeal . . . the  motion must be considered under 18
U.S.C. § 3582(c)(2)."); Klosowski, 2016 WL
6696023, at *1 ("Amendment 794 has not, however, been
held to be retroactive on collateral appeal.").
Moreover, as the Government points out, "Dixon did not
object to the fact that the PSR did not include a mitigating
role reduction, and he neither argued for a role reduction at
his sentencing hearing, nor sought to challenge his sentence
on appeal." (Gov. Resp. 6). In this way, Dixon would be
hard-pressed to establish that this is one of "those
rare instances where the defaulted claim . . . is committed
in a context that is so positively outrageous as to indicate
a 'complete miscarriage of justice, . . . .' ").
Grant, 72 F.3d 506. Finally, as a practical matter,
the Court need not look beyond the four corners of
Dixon's plea agreement to conclude that he was far from a
"minor participant" in the offense conduct.
See (Dkt. 335, Plea Agreement). For all of those
reasons, the Court must, and does, DENY Dixon's request
for post-judgment relief.
CERTIFICATE OF APPEALABILITY
Rule of Appellate Procedure 22 provides that an appeal may
not proceed unless a certificate of appealability (COA) is
issued under 28 U.S.C. § 2253. Rule 11 of the Rules
Governing Section 2254 and 2255 Proceedings requires that a
district court must “issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant . . . . If the court issues a certificate, the
court must state the specific issue or issues that satisfy
the showing required by 28 U.S.C. § 2253(c)(2).”
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).
Courts must either issue a certificate of appealability
indicating which issues satisfy the required showing or
provide reasons why such a certificate should not issue. 28
U.S.C. § 2253(c)(3); Fed. R. App. P. 22(b); In re
Certificates of Appealability, 106 F.3d 1306, 1307 (6th
Cir.1997). To receive a certificate of appealability,
“a petitioner must show that reasonable jurists could
debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the
issues presented were adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537
U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)
(internal quotes and citations omitted).
reasons stated in this opinion, the Court will deny Dixon a
certificate of appealability because he has failed to make a
substantial showing that his due process rights were
upon the foregoing, IT IS ORDERED that the petition for post
conviction relief is DENIED WITH PREJUDICE. IT IS FURTHER