Germany v. USA-2255

Filing 2

MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 11/16/2016. (c/m 11/16/16 bas, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MARVIN GERMANY, #58422-037

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Petitioner

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v

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UNITED STATES OF AMERICA

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Respondent

Civil Action No. RDB-16-3704
(Related Crim. Case RDB-14-0580)

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MEMORANDUM OPINION

On December 7, 2015, Marvin Germany was sentenced to seventy-two months of incarceration
pursuant to his entry of a guilty plea to one count of conspiracy to distribute and possess with intent to
distribute heroin, in violation of 21 U.S.C. § 846. See United States v. Germany, Criminal No. RDB-140580. Md. at ECF 405. No appeal was filed.
On November 14, 2016, Germany filed a self-represented Motion to Vacate pursuant to 28
U.S.C. § 2255, dated November 8, 2016, raising a claim that he is entitled to a sentence reduction based
on his minimal role in the crime. He appears to base his claim on the newly amended “clarification” of
§3B1.2 of the United States Sentencing Guidelines (“U.S.S.G.”) Manual (Amendment 794), and
contends that the Amendment should be applied retroactively in his favor. For reasons set forth herein,
the Court finds that Germany’s argument in favor of retroactive application of Amendment 794 fails.
On November 1, 2015, the United States Sentencing Commission (“Commission”) issued
Amendment 794 to the commentary in U.S.S.G. § 3B1.2, based on its finding that minor role reductions
were “applied inconsistently and more sparingly that the Commission intended.” United States v.
Quintero-Leyva, 823 F.3d 519, 521 (9th Cir. 2016). Because the Amendment was made retroactive by
the Commission (and not the Supreme Court), it applies retroactively only on direct appeal. Id. at 523-

24; see also Fakhoury v. United States, 2016 WL 4939226, *2 (D. Md. 2016).

Further, Amendment

794 is not among the listed Guideline Amendments that the Commission has made retroactively
applicable to defendants on collateral review. See United States v. Hunley, 2016 WL 4523417, *1-2 (W.
D. Va. 2016). Germany’s Motion to Vacate is, therefore, denied.
In addition to the above analysis, a Certificate of Appealability (“COA”) must be considered.
Unless a COA is issued, a petitioner may not appeal the Court’s decision in a § 2255 proceeding. 28
U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b). In Slack v. McDaniel, 529 U.S. 473 (2000), the Supreme
Court held that “[w]hen the district court denies a habeas petition on procedural grounds without
reaching the prisoner’s underlying constitutional claim, a Certificate of Appealability should issue when
the prisoner shows, at least, that … jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Slack, 529 U.S. at 483. Germany does not satisfy this standard,
and the Court declines to issue a COA. The denial of a COA does not preclude Germany from seeking
permission to file a successive petition or from pursuing his claims upon receiving such permission.
The Motion to Vacate shall be dismissed. A separate Order follows.

Date: __November 16, 2016_______

________/s/_______________________
RICHARD D. BENNETT
UNITED STATES DISTRICT JUDGE

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