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 304)
filed by the defendant, Gary A Goff. 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
defendant was convicted, pursuant to a guilty plea, of
conspiracy to possess pseudoephedrine in violation of 21
U.S.C. § 846. The presentence report found "no
evidence in support of a role adjustment in this case[,
]" filing 277 at 7, and the defendant did not
object to that finding, see filing 227. The Court
found that the defendant's applicable sentencing range
under the Sentencing Guidelines was 57 to 71 months, but
varied downward on the defendant's motion and imposed a
sentence of 24 months' imprisonment. Filing 274
at 2; filing 275 at 1. The defendant moves to vacate that
sentence pursuant to § 2255. Filing 304.
defendant's sole argument is that he should receive a
two-point reduction in his offense level pursuant to U.S.S.G.
§ 3B1.2, based on his allegedly minor participation in
the offense. Filing 304 at 5. His 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 Cir. 1994).
defendant's argument for vacating his 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 December
18, 2015. 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 his sentencing.
if the defendant had been sentenced before November
1, 2015, Amendment 794 would not apply to him. The defendant
cites 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 304 at 5. 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 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 statutory range cannot be
challenged, pursuant to § 2255, on the basis of alleged
Guidelines error. See Sun Bear, 644 F.3d at
even if the defendant had a plausible claim that
Amendment 794 changed the law applicable to him in a way that
supported a minor role adjustment, that claim would not