United States District Court, S.D. Ohio, Eastern Division
MICHAEL H. WATSON, JUDGE
REPORT AND RECOMMENDATION
Terence P. Kemp, United States Magistrate Judge
a federal prisoner, has filed a motion to vacate his sentence
pursuant to 28 U.S.C. §2255. The case is before the
Court on the motion (Doc. 514) and the United States'
response (Doc. 545). Petitioner also filed a motion for leave
to proceed in forma pauperis (Doc. 515) which is
DENIED because there is no filing fee for a motion brought
under §2255, and a motion to appoint counsel (Doc. 516),
which is also DENIED. For the following reasons, it will be
recommended that the motion to vacate be DENIED.
Facts and Procedural History
October 16, 2014, the grand jury indicted Petitioner and six
other individuals, charging them with conspiracy to possess
more than five hundred grams of cocaine with the intent to
distribute it (Doc. 13). Petitioner was arraigned on October
31, 2014 and pleaded not guilty. The case was set for trial
on December 22, 2014. After a continuance of the trial and
the filing of a superseding indictment, Petitioner changed
his plea to guilty. His plea was accepted and on June 18,
2015, Judge Watson sentenced Petitioner to a total of 90
months of imprisonment. That sentence is reflected in the
judgment and commitment order filed the same day. (Doc. 311).
Petitioner did not appeal.
October 17, 2016, Petitioner filed his motion to vacate. He
asserts a single ground for relief, which he has stated in
Ground One: Petitioner is seeking whether the newly U.S.S.G.
794 clarifying amendment enacted Nov. 1, 2015 is applicable
to his sentencing.
are the supporting facts he alleges (repeated in exactly his
Petitioner asserts during the sentencing phase of the
proceeding the District Court never made an assessment of my
role or participation in the overall conspiracy. Thus,
petitioner was never enhanced under any the leadership or
supervisor role in the offense, plus petitioner never know
about the scope of the other participants, he was basically
in a buyer and seller relationship.
Petitioner asserts, therefore now under this new amendment
facators to 3B1.2, petitioners partication would fall under
the creteria to be eligible for the minor role reduction.
United States makes a twofold response: first, that this
claim was not raised on appeal and is therefore procedurally
defaulted, see, e.g., United States v. Frady, 456
U.S. 152 (1982), and, second, that there is no evidence in
the record which would support an adjustment for a minor role
in the offense. Petitioner has not replied to either of these
Court's discussion of the issue raised in
Petitioner's motion begins and ends with an analysis of
the amendment to the sentencing guideline on which Petitioner
relies. The guideline in question, U.S.S.G. §3B1.2,
deals with adjustments to the base offense level, and permits
a four-level reduction if the defendant was a minimal
participant; a two-level reduction if the defendant was a
minor participant; and a three-level reduction if the
defendant's level of culpability fell between those two.
The guideline itself was not amended in 2015, but the
application note was. It now contains a non-exhaustive list
of factors to be used in deciding if a defendant played a
minimal or minor role in the offense, gives an example of a
lesser role (“simply being paid to perform certain
tasks”), and provides that performing an essential or
indispensable role is not determinative if the defendant is
“substantially less culpable than the average
participant in the criminal activity.” Because the
amendment to the commentary became effective on November 1,
2015, it was not applied in Petitioner's case. The Court
of Appeals has held that the amendment is to be applied on
direct review of a conviction. See United States v.
Carter, 2016 WL 5682707 (6th Cir. Oct. 3, 2016).
However, a §2255 motion is not part of the direct review
process, but is a collateral proceeding.
Court has held that Amendment 794 does not apply in the
context of collateral review. Johnson v. United
States, 2016 WL 6084018 (S.D. Ohio Oct. 17, 2016). Other
District Courts within the Sixth Circuit agree. See
United States v. Miracle, 2017 WL 627442 (E.D. Tenn.
Feb. 15, 2017); Morgan v. United States, 2017 WL
990793 (E.D. Mich. Jan. 31, 2017); Moorer v. United
States, 2016 WL 7012324 (N.D. Ohio Dec. 1, 2016). That
appears to be the consensus of other District Courts as well.
See, e.g., United States v. Carvajal, 2017 WL
1155441, *2 (M.D. Fla. March 28, 2017), citing, inter
alia, United States v. Harlie, 2017 WL 78576 (S.D. Ga.
Jan. 9, 2017); United States v. Germany, 2016 WL
6780213 (D. Md. Nov. 16, 2016). The Court's research has
not located any contrary authority. Most, if not all, of
these decisions rely on the fact that “Amendment 794 is
not among the listed Guideline Amendments that the Commission
has made ...