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, Erica J. Cushing. 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. Based on the presentence report, the Court
found that the defendant's applicable sentencing range
under the Sentencing Guidelines was 151 to 188 months, and
imposed a sentence of 151 months' imprisonment. Filing 50
at 2; filing 51 at 1. Judgment was entered on January 12,
2015. Filing 50. The defendant now moves to vacate her
sentence pursuant to § 2255, apparently contending that
she was a minor or minimal participant in the offense. Filing
defendant's sole argument is that she should receive a
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 Cir. 1994).
defendant's argument for vacating her sentence based on
Amendment 794 is without merit, for three reasons. First,
Amendment 794 is not applicable to the defendant, who had
already been sentenced well before Amendment 794 became
effective. 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 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 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
706. Accordingly, even if the defendant had a
plausible claim that Amendment 794 changed the law applicable
to her in a way that supported an additional role adjustment,
that claim would not establish a right to relief pursuant to
the defendant waived her right to raise that argument on
postconviction relief. The defendant's plea agreement
contained a waiver of "any and all rights to
contest" her conviction and sentence, "including
any proceedings under 28 U.S.C. § 2255, " absent
specific exceptions not found here. Filing 30 at 5. And the
defendant does not contend that her entry into the plea
agreement was not knowing and voluntary.
is no question that a knowing and voluntary waiver of a
defendant's right to direct appeal or collateral attack
is generally enforceable. DeRoo v. United States,
223 F.3d 919, 923 (8th Cir. 2000). Such a waiver is
enforceable when the claim raised falls within the scope of
the waiver, the defendant knowingly and voluntarily entered
into the plea agreement and waiver, and enforcement of the