French v. USA

Filing 2

MEMORANDUM AND ORDER, this Court DENIES Ms. French's § 2255 Motion (Doc. 1) and DISMISSES this action. The Court DIRECTS the Clerk of Court to enter judgment accordingly. Further, the Court DENIES a certificate of appealability. Signed by Judge J. Phil Gilbert on 9/19/2016. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LIBBY J. FRENCH,
Petitioner,
vs.

Case No. 16-cv-01031-JPG

UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM AND ORDER
This matter comes before the Court on petitioner Libby J. French’s Motion to Vacate, Set
aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). The Government has not filed
a response and the time for doing so has not expired. However, a response from the government
is not required by the Court. For the following reasons, the Court denies Ms. French’s motion.
1. Background.
On March 28, 2013, pursuant to a plea agreement, Ms. French pleaded guilty to one
count of conspiracy to manufacture methamphetamine in violation of 21 U.S.C. § 846 and one
count of maintaining a place to manufacture methamphetamine in violation of 21 U.S.C. §
856(a)(1). See United States v. French, Case No. 12-cr-40104 (Doc. 48). On July 25, 2013, the
undersigned Judge sentenced Ms. French to 87 months imprisonment, four years supervised
release, a $200 special assessment, and a $300 fine1. (Doc. 71, 12-cr-40104).

Although the

Court found that Ms. French was substantially involved in the process, there was no aggravating
or mitigating role adjustment. (Doc. 62, 12-cr-40104). However, the Court did consider

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The 2012 United States Sentencing Guidelines, incorporating all guideline amendments, was used to calculate
defendant’s offense level and recommended sentencing range.

mitigating circumstances in awarding Ms. French a below the advisory guideline range sentence.
(Doc. 78, 12-cr-40104 Ms. French did not file a direct appeal.
Ms. French’s § 2255 motion argues that Amendment 794 with regard to a mitigating role
reduction should be applied retroactively to her sentence. She also argues that her sentence
should be reduced since she did not receive any personal financial gain and only participated in
the offenses due to her addiction.
2. Analysis.
The Court must grant a § 2255 motion when a defendant’s “sentence was imposed in
violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255.

However,

“[h]abeas corpus relief under 28 U.S.C. § 2255 is reserved for extraordinary situations.” Prewitt
v. United States, 83 F.3d 812, 816 (7th Cir. 1996). “Relief under § 2255 is available only for
errors of constitutional or jurisdictional magnitude, or where the error represents a fundamental
defect which inherently results in a complete miscarriage of justice.” Kelly v. United States, 29
F.3d 1107, 1112 (7th Cir. 1994) (quotations omitted). It is proper to deny a § 2255 motion
without an evidentiary hearing if, “the motion and the files and records of the case conclusively
demonstrate that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see Sandoval v.
United States, 574 F.3d 847, 850 (7th Cir. 2009). No evidentiary hearing has been conducted in
this matter as the records and files clearly demonstrate that Ms. French is not entitled to any
relief.
Amendment 794 to the United States Sentencing Guidelines became effective on
November 1, 2015. Although Amendment 794 has been held retroactive on direct appeal, it has
not been held retroactive for collateral review.

See U.S.S.G §§ 1B1.10(d)(listing covered

amendments for retroactivity); U.S. v. Quintero-Leyva, 823 F.3d. 519, 521 nt 1 (9th Cir.

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2016)(holding that Amendment 794 applies retroactively in direct appeals, but declining to
determine whether the amendment applies to “a defendant who has exhausted his direct appeal
can move to reopen sentencing proceedings.”). The petitioner has not cited to any controlling
case law that Amendment 794 applies retroactively. As such, the Court properly used the
sentencing guideline manual in effect on the date of the petitioner’s sentencing. See U.S.S.G §
1B1.11.
The Court is unsure of the second argument within the petitioner’s § 2255 motion stating
that she received no financial gain. “[T]he degree to which the defendant stood to benefit from
the criminal activity” would be a consideration for the Court if Amendment 794 had applied
retroactively to the petitioner. See U.S.S.G § 3B1.2 (application note 3(C)(v)). However, since
the amendment does not apply, the assertion that the petitioner received no financial gain does
not indicate an error of constitutional or jurisdictional magnitude that would warrant relief under
§ 2255.
Finally, the Court has reviewed the correspondence attached to the petitioner’s § 2255
motion. The Court commends the petitioner for completing the Residential Drug Abuse Program
and her participation in continuing education while incarcerated. However, while these efforts
are commendable, they are not a basis for relief under § 2255.
3. Certificate of Appealability.
Having denied Ms. French’s motion, the Court must grant or deny a certificate of
appealability. See Rule 11(a) of the Rules Governing Section 2255 Proceedings for the United
States District Courts; 28 U.S.C. § 2253(c). Section 2253(c)(2) provides that a certificate of
appealability may issue only if a petitioner has made a substantial showing of the denial of a
constitutional right. Ms. French has made no such showing. Therefore, the Court denies a

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certificate of appealability. Pursuant to Rule 11(a), Ms. French may not appeal the denial of a
certificate of appealability, but she may seek a certificate from the Court of Appeals for the
Seventh Circuit.
4. Conclusion
Accordingly, this Court DENIES Ms. French's § 2255 Motion (Doc. 1) and DISMISSES
this action. The Court DIRECTS the Clerk of Court to enter judgment accordingly. Further, the
Court DENIES a certificate of appealability.
IT IS SO ORDERED.
DATED: 9/19/2016
s/J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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