United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER DENYING DEFENDANT'S MOTION TO
VACATE SENTENCE (Dkt. 20)
Mark A. Goldsmith Judge
August 22, 2016, Defendant filed a motion to vacate her
sentence under 28 U.S.C. § 2255 (Dkt. 20), claiming the
benefit of recent amendments to the sentencing guidelines
related to Amendment 794, an amendment to the commentary for
the mitigating role guideline reduction, U.S.S.G. §
3B1.2. The Government has responded (Dkt. 22). For the
reasons set forth below, Defendant's motion is denied.
January 9, 2014, Defendant was convicted of aiding and
abetting a Hobbs Act Interference With Commerce By Threat of
Violence, 18 U.S.C. § 1951 and 2. See Judgment
at 1 (Dkt. 19). Thereafter, effective November 1, 2015,
Amendment 794 to the Sentencing Guidelines was adopted. It
amended the commentary to U.S.S.G. § 3B1.2, clarifying
the factors a sentencing court should consider when
determining whether to apply the mitigating role adjustment
under § 3B1.2. See U.S.S.G., Supp. to App'x
C at 116-118 (2015).
motion, brought under 28 U.S.C. § 2255, argues that
Amendment 794 should apply retroactively to her sentence,
resulting in a lower Guidelines range due to her claim that
she had only a minor role in the criminal activity underlying
her conviction. See Def. Mot. 1-2 (citing United
States v. Quintero-Leyva, 823 F.3d 519 (9th Cir. 2016)
(Amendment 794 applies retroactively to direct appeals)). The
Government's response argues that any retroactivity of
Amendment 794 is strictly limited to direct appeals; it has
no applicability to Defendant's instant collateral attack
on her sentence. See Gov't Resp. at 3-4.
Government is correct. In Quintero-Leyva, 823 F.3d
at 523, the Ninth Circuit held that Amendment 794 applied
retroactively - but it specified that its holding concerned
direct appeals. In United States v. Carter, __F.3d
__, 2016 WL 5682707, at *6 (6th Cir. Oct. 3, 2016), the Sixth
Circuit adopted the reasoning of Quintero-Leyva and
vacated the sentence of a defendant who was before it on
is not on direct appeal, having been convicted in January
2014, over two and a half years before filing the instant
motion. When faced with this procedural posture,
courts have uniformly held that “[a] district court may
resentence a defendant pursuant to a sentencing guideline
amendment only if the Sentencing Commission has determined
that the amendment is retroactive” via U.S.S.G. §
1B1.10. United States v. Burlingame, No.
15-CR-20042, 2016 WL 6777834, at *2 (E.D. Mich. Nov. 16,
2016). “Amendments that have been deemed retroactive
are listed in U.S.S.G. § 1B1.10(d), and Amendment 794 is
not listed” in § 1B1.10(d) of the current
Guidelines Manual, which incorporates all amendments made
effective on November 1, 2016 and earlier. Id.;
see also Klosowski v. United States, No.
12-CR-20458, 2016 WL 6696023, at *1 (E.D. Mich. Nov. 15,
2016) (holding that Amendment 794 not retroactive on
collateral appeal); 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)
(same; collecting cases); United States v. Tapia,
No. 8:14-CR-30-T-23TBM, 2016 WL 4815150, at *1 (M.D. Fla.
Sept. 14, 2016) (same); United States v.
Perez-Carrillo, No. 7:14CR00050, 2016 WL 4524246, at *1
(W.D. Va. Aug. 26, 2016) (same); Young v. United
States, No. 3:16-CV-3139, 2016 WL 4472937, at *2 (C.D.
Ill. Aug. 24, 2016) (same). Accordingly, Defendant's
motion for modification of her sentence is denied.
CERTIFICATE OF APPEALABILITY
Defendant's claims for relief lack merit, the Court will
also deny a certificate of appealability. To obtain a
certificate of appealability, a petitioner must make a
substantial showing of the denial of a constitutional right.
28 U.S.C. § 2253(c)(2). To demonstrate this denial, the
applicant is required to show that reasonable jurists could
conclude that the petition should have been resolved in a
different manner, or that the issues presented were adequate
enough for encouragement to proceed further. See Slack v.
McDaniel, 529 U.S. 473, 483-484 (2000). For the reasons
stated above, the Court will deny Defendant a certificate of
appealability because reasonable jurists could not find this
Court's assessment of his claims debatable.
reasons set forth above, Defendant's motion to vacate her
sentence (Dkt. 20) is denied, and a certificate of
appealability is denied.