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United States v. Fischer

United States District Court, D. Nebraska

May 18, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
KATHLEEN FISCHER, Defendant.

          MEMORANDUM AND ORDER

          Joseph F. Bataillon Senior United States District Judge.

         This matter is before the court on initial review of defendant Kathleen Fischer's pro se motions to vacate under 28 U.S.C. § 2255, Filing No. 123, and 28 U.S.C. § 2241, Filing No. 126.

         I. BACKGROUND

         Kathleen Fischer entered a plea of guilty to one count of distribution or possession with intent to distribute 500 grams or more of a methamphetamine mixture. That charge carries a ten-year mandatory minimum sentence. 21 U.S.C. §§ 841(b)(1).

         In a binding plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), Fischer agreed to a sentence of 180 months (fifteen years) based on her “role in the offense, criminal history, and acceptance of responsibility.” Filing No. 78, Plea Agreement at 6. She also agreed to forfeit some currency and to pay the government the sum of approximately $3, 400. Id. Other than the statement quoted above, the plea agreement did not refer to any calculations under the Guidelines. In exchange for the guilty plea, the government agreed not to file an Information of convictions for felony drug offenses or violent crimes under 21 U.S.C. § 851. It also agreed not to seek forfeiture of real property to the government. The plea agreement also contemplated cooperation. See Filing No. 78.

         Fischer's presentence investigation report (“PSR”) indicates that Fischer's suggested Guidelines range would have been 262 to 327 months based on her status as a career offender for having two prior convictions of felony drug offenses. Filing No. 97, PSR (Sealed) at 9; see U.S.S.G. § 4B1.1. Under the Guidelines' career-offender provision, Fischer's base offense level was 37, less 3 levels for acceptance of responsibility, resulting in a total offense level 34 at criminal history category VI.[1] Id. The plea agreement does not mention or refer to the PSR.

         Fischer filed a motion to vacate under 28 U.S.C. § 2255 on August 1, 2013. Filing No. 103. She contended, inter alia, that her attorney had failed to file an appeal. Id. The motion was denied as untimely on initial review. Filing No. 104. She later filed a motion to reduce her sentence under 18 U.S.C. § 3582(c)(2) based on Guidelines Amendment 782, which retroactively reduced the base offense levels for drug offenses by two levels. Filing No. 109. Fischer's appointed counsel later moved to withdraw, stating that Fischer did not qualify for an Amendment 782 sentence reduction because she had been sentenced as a career offender. Filing No. 111 and Filing No. 116.[2]

         Fischer now seeks relief based on Amendment 794 to U.S.S.G. 3B1.2. That amendment relates to Guidelines commentary on the use of minor and minimal participant downward adjustments in Guidelines calculations. She asserts that under the revised commentary text she is entitled to a four-level reduction in her Guidelines sentence for her minimal participation.

         She also contends, under 28 U.S.C. § 2241, that she is entitled to a sentence reduction by reason of several recent Supreme Court cases.[3]

         II. LAW

         Under the Rules Governing Section 2255 Proceedings for the United States District Courts (“2255 Rules”), the court must perform an initial review of the defendant's § 2255 motion. See 28 U.S.C. § 2255, Rule 4(b). The rules provide that unless “it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, ” the court must order the United States Attorney to respond to the motion. Id.

         A § 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. 28 U.S.C. § 2255(b); Sinisterra v. United States, 600 F.3d 900, 906 (8th Cir. 2010). 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.

         A “second or successive” § 2255 motion cannot be entertained by the trial court without prior approval by the Court of Appeals. 28 U.S.C. §§ 2244(b)(3) and 2255(h). Without pre-approval from the appropriate circuit court, a trial court cannot exercise jurisdiction over a second or successive § 2255 motion. See Boykin v. United States, 242 F.3d 373 (8th Cir. 2000) (unpublished opinion).

         A claim attacking a sentence is properly entertained in a § 2255 petition in the sentencing court, whereas a claim attacking the execution of that sentence should be brought in a § 2241 petition in the jurisdiction of incarceration. Nichols v. Symmes,553 F.3d 647, 649 (8th Cir. 2009). “A petitioner who seeks to challenge his sentence or conviction generally must do so in the sentencing court through § 2255 and cannot use § 2241 to challenge the conviction without ...


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