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 543)
filed by the defendant, Yara Sujey Martinez Garcia. 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 distribute methamphetamine in violation of 21
U.S.C. § 846. The presentence report found that the
defendant was a minor participant in the offense, warranting
a 2-level reduction in her offense level. Filing 260 at
8. Based on the presentence report, the Court found
that the defendant's applicable sentencing range under
the Sentencing Guidelines was 121 to 151 months, but varied
downward on the defendant's motion and imposed a sentence
of 120 months' imprisonment. Filing 262 at 1; filing 263
at 1, 3. The defendant moves to vacate that sentence pursuant
to § 2255, contending that she was "a minor role in
this case." Filing 543.
defendant's sole argument is that she should receive a
reduction in her offense level pursuant to U.S.S.G. §
3B2.1, based on her allegedly minor participation in the
offense. Filing 543. 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 Cir. 1994).
defendant's argument for vacating her sentence based on
Amendment 794 is without merit, for several reasons. First,
the defendant's motion is untimely. A § 2255 motion
must be filed within 1 year from the latest of
(1) the date on which the judgment of conviction becomes
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
§ 2255(f). Judgment was entered in this case on May 12,
2014, see filing 262, and became final when the time for
taking an appeal ran: far more than 1 year before her October
31, 2016 motion, see filing 543. And none of the other
provisions for ...