United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard United States District Judge.
matter is before the Court upon initial review of the pro se
motion to vacate under 28 U.S.C. § 2255 (filing 60)
filed by the defendant, Annette Maureen Lujan. The motion was
timely filed less than 1 year after the defendant's
conviction became final. See § 2255(f). The
Court's initial review is governed by Rule 4(b) of the
Rules Governing Section 2255 Proceedings for the United
States District Courts, which provides:
The judge who receives the motion must promptly examine it.
If it plainly appears from the motion, any attached exhibits,
and the record of prior proceedings that the moving party is
not entitled to relief, the judge must dismiss the motion and
direct the clerk to notify the moving party. If the motion is
not dismissed, the judge must order the United States
attorney to file an answer, motion, or other response within
a fixed time, or to take other action the judge may order.
§ 2255 movant is entitled to an evidentiary hearing
unless the motion and the files and records of the case
conclusively show that the movant is entitled to no relief.
§ 2255(b); Sinisterra v. United States, 600
F.3d 900, 906 (8th Cir. 2010). Accordingly, a motion to
vacate under § 2255 may be summarily dismissed without a
hearing if (1) the movant's allegations, accepted as
true, would not entitle the movant to relief, or (2) the
allegations cannot be accepted as true because they are
contradicted by the record, inherently incredible, or
conclusions rather than statements of fact. Engelen v.
United States, 68 F.3d 238, 240 (8th Cir. 1995); see
also Sinisterra, 600 F.3d at 906.
defendant was convicted, pursuant to a guilty plea, of
conspiracy to possess 50 grams or more of methamphetamine
with intent to distribute it, in violation of 21 U.S.C.
§ 846. The presentence report found no basis for an
adjustment based on the defendant's role in the offense,
filing 52 at 8, and the defendant did not object to that
finding, see filing 44. The Court found that the
defendant's applicable sentencing range under the
Sentencing Guidelines was 60 to 71 months, and imposed the
statutory mandatory minimum sentence of 60 months'
imprisonment. Filing 57 at 2; filing 58 at 1. The defendant
moves to vacate that sentence pursuant to § 2255. Filing
defendant's sole argument is that she should receive a
two-point reduction in her offense level pursuant to U.S.S.G.
§ 3B1.2, based on her allegedly minor participation in
the offense. Filing 60. Her argument is premised on
U.S.S.G. Amend. 794: that amendment, which was effective on
November 1, 2015, made no change to the text of § 3B1.2.
Instead, it made changes and additions to the commentary to
§ 3B1.2, to provide additional guidance to courts in
determining whether a mitigating role adjustment applies. And
Amendment 794 was not made retroactive to defendants who had
already been sentenced. See, 18 U.S.C. §
3582(c)(2); U.S.S.G. § 1B1.10(d); see also
United States v. Hernandez, 18 F.3d 601, 602 (8th
defendant's argument for vacating her sentence based on
Amendment 794 is without merit, for several reasons. The
first, and most obvious, is that Amendment 794 was effective
November 1, 2015, and the defendant was sentenced on March
17, 2016. The Court uses the Guidelines manual in effect on
the date that a defendant is sentenced. See U.S.S.G. §
1B1.11(a). Accordingly, the defendant already received the
benefit of Amendment 794 at her sentencing.
if the defendant had been sentenced before November
1, 2015, Amendment 794 would not apply to her. The Court is
aware of United States v. Quintero-Leyva, 823 F.3d
519, 522-23 (9th Cir. 2016), in which the Ninth Circuit
recently held that Amendment 794 applies retroactively to
cases on direct appeal. Filing 60 at 1. But this
case is not on direct appeal, and was not on November 1,
2015. Furthermore, while the Ninth Circuit applies a
"clarifying" amendment to the Sentencing Guidelines
retroactively to cases on direct appeal, the Eighth Circuit
has rejected that view, holding that only amendments
enumerated in § 1B1.10 are to be applied retroactively,
even if appellate review has not concluded. United States
v. Dowty, 996 F.2d 937, 938 (8th Cir. 1993) (citing
United States v. Caceda, 990 F.2d 707, 710 (2d Cir.
1993)); see United States v. Williams, 905
F.2d 217, 218 (8th Cir. 1990).
even if the defendant has some basis for a retroactive
reduction to her sentence, she was sentenced to the statutory
minimum. And the Court is without authority to impose a
sentence below a statutory mandatory minimum sentence.
See United States v. Theeler, 633
F.App'x 358, 359 (8th Cir. 2016).
even if the defendant had some plausible argument for
sentencing error, that argument would not be cognizable under
§ 2255. The Eighth Circuit has explained that
Section 2255 was intended to afford federal prisoners a
remedy identical in scope to federal habeas corpus. Like
habeas corpus, this remedy does not encompass all claimed
errors in conviction and sentencing. It provides a remedy for
jurisdictional and constitutional errors, neither of which is
at issue here. Beyond that, the permissible scope of a §
2255 collateral attack on a final conviction or sentence is
severely limited; an error of law does not provide a basis
for collateral attack unless the claimed error constituted a
fundamental defect which inherently results in a complete
miscarriage of justice.
Sun Bear v. United States,
644 F.3d 700, 704 (8th
Cir. 2011) (en banc) (citations and quotations omitted). And,
the Court of Appeals said, ordinary questions of Guidelines
interpretation falling short of the "miscarriage of
justice" standard do not present a proper § 2255
claim, and may not be re-litigated under § 2255. Sun
Bear, 644 F.3d at 704. In sentencing, a
"miscarriage of justice" is cognizable under §
2255 when the sentence is in excess of that authorized by
law, i.e., imposed without, or in excess of,
statutory authority. Sun Bear, 644 F.3d at 705-06.
In other words, the Eighth Circuit has concluded that a
sentence that is within the ...