Sapp v. United States of America

Filing 6

ORDER ADOPTING 2 Report and Recommendations, DISMISSING 5 Supplemental Motion to Vacate filed by Desmond Sanjuan Sapp. Signed by Judge J. Randal Hall on 09/12/2016. (maa)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

DESMOND SANJUAN SAPP,
Petitioner,
CV 116-121

v.

(Formerly CR 111-131)
UNITED STATES OF AMERICA,

Respondent.

ORDER

After a careful, de novo review of the file, the Court concurs with the Magistrate

Judge's Report and Recommendation, to which objections have been filed (doc. no. 4). The
Magistrate Judge recommended dismissal of the motion filed pursuant to 28 U.S.C. § 2255
for two reasons: (1) Petitioner did not qualify as an armed career criminal or receive any

adjustment under the advisory Guidelines that turned on any language similar to the residual
clause language invalidated under Johnson v. United States, 135 S. Ct. 2551 (2015), and (2)
even assuming Petitioner had received some type of "crime of violence" Guidelines
enhancement, in the Eleventh Circuit, the decision in Johnson does not apply to career

offender enhancements under the sentencing Guidelines. (Doc. no. 2, pp. 3-4.) Petitioner's

disagreement with the binding Eleventh Circuit case law upon which the Magistrate Judge
relied, United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015), forms no basis for

undermining the Magistrate Judge's analysis, and Petitioner's objections to dismissal, as well
as to the recommendation for denying the request for appointed counsel, are OVERRULED.

Along with his objections, Petitioner filed a "supplemental" motion, in which he

seeks to add a claim that Amendment 794 to U.S.S.G. § 3B1.2 makes him eligible for a

minor-role reduction to his sentence. (Doc. no. 5.) This newest claim affords Petitioner no
relief.

Amendment 794 made no substantive change to U.S.S.G. § 3B1.2. Rather, it merely
"clarified the factors to consider for a minor-role adjustment." United States v. Casas, 632 F.
App'x 1003, 1004 (11th Cir. 2015).

Indeed, the Sentencing Commission specifically

explained that Amendment 794 is intended only as a clarifying amendment. U.S.S.G. Supp.
App. C, Amend. 794 (Reason for Amend.) ("This amendment provides additional guidance
to sentencing courts in determining whether a mitigating role adjustment applies."). Thus, as
a threshold matter, the Court must decide "whether [Petitioner's] claim that his sentence is
contrary to a subsequently enacted clarifying amendment is cognizable under § 2255."

Burke v. United States. 152F.3d 1329, 1331 (11th Cir. 1998).
A comparison of the circumstance of Burke and this case confirms relief is not
available to Petitioner in a § 2255 proceeding. In both cases, the petitioners did not appeal.

IcL at 1331. After sentencing, the Sentencing Commission added a clarifying amendment to
the Guidelines, and the petitioners moved under § 2255 to modify their sentences based on

the change. IcL Yet because "§ 2255 is not a substitute for direct appeal," nonconstitutional

claims such as clarifying amendments to the Guidelines "can be raised on collateral review
only when the alleged error constitutes a 'fundamental defect which inherently results in a

complete miscarriage of justice [or] an omission inconsistent with the rudimentary demand
of fair procedure.'" Id (quoting Reed v. Farley, 512 U.S. 339, 348 (1994)).

Because Amendment 794 is a clarifying amendment resulting in no change to the
substantive law, Petitioner had the opportunity to challenge the denial of a minor-role

adjustment at his original sentencing and on direct appeal, id at 1332, but he did not. The
record does not reflect any objection to the Guidelines sentence calculation, and the

Presentence Investigation Report ("PSI") clearly delineated no adjustment for Petitioner's
role in the offense. PSI f 21. "Considering all of the circumstances, [the Court] cannot say

that the alleged misapplication of the sentencing guidelines in this case was fundamentally
unfair or that it constituted a miscarriage of justice sufficient to form the basis for collateral
relief." Burke, 152 F.3d at 1332.

The case cited by Petitioner out of the Ninth Circuit, United States v. Ouintero-Lewa,

823 F.3d 519 (9th Cir. 2016), is of no help not only because it is non-binding case law
outside of the Eleventh Circuit, but also because it held that Amendment 794 may be applied
retroactively to direct appeals. 823 F.3d at 522-23. There is no authority that Amendment

794 may be applied in this post-conviction context. Moreover, the conclusion reached by the
Court herein is consistent with other decisions from the Southern District of Georgia. See
Jacobs v. United States, Nos. CV 416-216 / CR 414-343, 2016 WL 4183312 (S.D. Ga. Aug.

5, 2016), adopted by CV 416-216, doc. no. 4 (S.D. Ga. Aug. 24, 2016) (Bowen, J.); Knight
v. United States, CV 616-102 / CR 609-048, 2016 WL 4082701 (S.D. Ga. July 29, 2016),

adopted by CV 616-102, doc. no. 4 (S.D. Ga. Aug. 19, 2016) (Wood, C.J.). Thus, the
"supplemental" claim forms no basis for relief.

Accordingly, the Court ADOPTS the Report and Recommendation of the Magistrate

Judge as its opinion, DISMISSES Petitioner's motion and supplemental motion filed

pursuant to 28 U.S.C. § 2255, and DENIES the motion for appointment of counsel (CR 111131, doc. no. 15).

Further, a federal prisoner must obtain a certificate of appealability ("COA") before
appealing the denial of his motion to vacate. This Court "must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant." Rule 11(a) to the Rules
Governing Section 2255 Proceedings. This Court should grant a COA only if the prisoner
makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
For the reasons set forth in the Report and Recommendation and herein, and in consideration

of the standards enunciated in Slack v. McDanieL 529 U.S. 473, 482-84 (2000), Petitioner
has failed to make the requisite showing. Accordingly, the Court DENIES a COA in this

case.1 Moreover, because there are no non-frivolous issues to raise on appeal, an appeal
would not be taken in good faith. Accordingly, Petitioner is not entitled to appeal in forma
pauperis. See 28 U.S.C. § 1915(a)(3).

Upon the foregoing, the Court CLOSES this civil action.

SO ORDERED this JjZ^w of September, 2016, at Augusta, Georgia.

HONORABLE J. RANDAL HALL

UMTEJJSTATES DISTRICT JUDGE
}RN DISTRICT OF GEORGIA

u'If the court denies a certificate, a party may not appeal the denial but may seek a
certificate from the court of appeals under Federal Rule of Appellate Procedure 22." Rule 11(a)
to the Rules Governing Section 2255 Proceedings.