Saxton v. United States of America

Filing 8

ORDER overruling objections; adopting 3 Report and Recommendations; dismissing 1 Motion to Vacate; denying a COA in this case; and closing this civil action. Signed by Judge J. Randal Hall on 10/13/2016. (thb)

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

DAVON MITCHELL SAXTON,
Petitioner,
CV 116-133

v.

(Formerly CR 112-119)
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. 7). The
Magistrate Judge recommended dismissal of the motion filed pursuant to 28 U.S.C. § 2255
on the basis that it is successive and has not been authorized by the Eleventh Circuit Court of

Appeals for consideration. (See doc. no. 3.) Nothing in Petitioner's objections undermines
the Magistrate Judge's recommendation, and only one objection warrants further comment.

Petitioner objects to the characterization of his claim that he was not able to seek a
"minor-role adjustment" under U.S.S.G. § 3B1.2 as a claim based on "a change to the

sentencing guidelines which he believes should be retroactively applied to reduce his
sentence." (Doc. no. 7, pp. 5-6 (citing doc. no. 3, p. 6).) According to Petitioner, he does not
need authorization from the Eleventh Circuit to file his numerically second § 2255 motion

because there was no "change," but rather a "clarification," to § 3B1.2, and courts have ruled

a clarifying amendment should apply in collateral proceedings. Petitioner's argument is
without merit because the clarification does not excuse him from needing authorization from
the Eleventh Circuit to file his current § 2255 motion.
In any event, even if the Court were authorized to consider Petitioner's claim, it

would afford him 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. Cruickshank. -F.3d-, No. 14-13754, 2016 WL 5075936, at *7 (11th Cir.

Sept. 20, 2016); 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 would have to

decide "whether [Petitioner's] claim that his sentence is contrary to a subsequently enacted
clarifying amendment is cognizable under § 2255." Burke v. United States, 152 F.3d 1329,
1331 (11th Cir. 1998).

A comparison of the circumstance of Burke and this case confirms relief would not be
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. Id 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
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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, idL at 1332, but he did not. The
record does not reflect any written objection to the Guidelines sentence calculation, and only
small adjustments were made to the Presentence Investigation Report ("PSI") prior to
sentencing, adding information to two paragraphs of the PSI regarding offense behavior that

was not part of relevant conduct. PSI ffif 24, 25; Def.'s Obj. to PSI; CR 112-119, doc. no.
150, Sent. Tr., pp. 3-4. The PSI clearly delineated no adjustment for Petitioner's role in the

offense, and in fact explained, as did the Court at sentencing, that the Total Offense Level

did not apply because Petitioner's sentence for his two counts of conviction under 18 U.S.C.

§ 924(c)(A)(ii) was mandated by statute. PSI ft 23, 54, 55; Sent. Tr., p. 5. "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 ofjustice
sufficient to form the basis for collateral relief." Burke, 152 F.3d at 1332.

The case cited by Petitioner out of the Ninth Circuit in his § 2255 motion, 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.

Likewise, the Eleventh Circuit cases cited in the objections stand only for the proposition
3

that a clarifying amendment should be applied on direct appeal, United States v. Jerchower.
631 F.3d 1181, 1184 (11th Cir. 2011), or that a clarifying amendment may be applied in
collateral proceedings if there is a showing of a "complete miscarriage of justice." United
States v. Armstrong. 347 F.3d 905, 908 (11th Cir. 2003) (citing Burke. 152 F.3d at 1332).
However, as discussed above, Petitioner's claim falls short under the Burke complete
miscarriage ofjustice analysis.

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, even if Petitioner's sentence was not mandated by

statute and a minor-role adjustment under the Guidelines might have some relevance to the
sentence calculation, Petitioner would not be entitled to the relief he seeks.

Accordingly, the Court OVERRULES Petitioner's objections, ADOPTS the Report
and Recommendation of the Magistrate Judge as its opinion, and DISMISSES the § 2255
motion on the basis that it is successive and has not been authorized by the Eleventh Circuit

Court of Appeals for consideration.

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
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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 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 /S^my ofOctober, 2016, at Augusta, Georgia.

)ALHALL

STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA

l44If 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.