Rogers v. USA - 2255
Filing
2
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 12/6/2016. (c/m 12/06/2016 jf3s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
NICHELLE NICOLE ROGERS
:
v.
:
Civil Action No. DKC 16-3133
Criminal Case No. DKC 14-0463
:
UNITED STATES OF AMERICA
:
MEMORANDUM OPINION
Petitioner Nichelle Nicole Rogers filed a Motion to Vacate
pursuant
to
28
U.S.C.
§
2255,
seeking
a
reduction
in
her
sentence based on a sentencing guideline amendment adopted after
her sentencing.
For the following reasons, the motion will be
denied.
Petitioner was sentenced on March 23, 2015, to a 54 month
term of imprisonment, consecutive to a sentence she was already
serving or commencing June 4, 2016, whichever first occurred.
She did not appeal.
On September 19, 2016, the court received
for filing the Motion dated September 15, 2016.
Petitioner
seeks a reduction in her guideline range, and a resentencing,
based
on
Amendment
guidelines.
794
which
affects
Section
3B1.2
of
the
As recently discussed by another district judge in
denying a similar motion:
Amendment 794 amended the Commentary to
U.S.S.G.
§
3B1.2,
which
addresses
a
mitigating role in the offense.1 United
States v. Donis-Galan, No. 15-11209, 2016 WL
1238205, at *2 n.2 (11th Cir. March 30,
2016). Amendment 794 introduced a list of
non-exhaustive factors that a sentencing
court
should
look
at
when
determining
whether or not to apply a mitigating role
adjustment.2 United States v. Gomez-Valle,
No. 15-41115, 2016 WL 3615688, at *4 (5th
Cir. July 5, 2016). Amendment 794 also
provides that “a defendant who does not have
a proprietary interest in the criminal
activity and who is simply being paid to
perform certain tasks should be considered
for an adjustment under this guideline.” Id.
Amendment
794
is
not
retroactively
applicable on collateral review. U.S.S.G. §
1B1.10 lists those Guideline amendments that
have been made retroactively applicable to
defendants
on
collateral
review,
and
Amendment 794 is not listed. United States
v.
Perez-Carrillo,
No.
7:14CR00050,
7:16CV81172, 2016 WL 4524246, at *2 (W.D.
Va. Aug. 26, 2016).
1
The effective date of Amendment 794 was
November 1, 2015.
U.S.S.G. app. C., amend
794, at 118 (Supp. Nov. 1, 2015).
2
The factors are “(i) the degree to which
the defendant understood the scope and
structure of the criminal activity; (ii) the
degree to which the defendant participated
in planning or organizing the criminal
activity; (iii) the degree to which the
defendant
exercised
decision-making
authority or influenced the exercise of
decision-making authority; (iv) the nature
and extent of the defendant's participation
in the commission of the criminal activity”;
and “(v) the degree to which the defendant
stood
to
benefit
from
the
criminal
activity.” See U.S.S.G. app. C, amend. 794,
at 116 (Supp. Nov. 1, 2015).
2
Kidwell
v.
United
States,
No.
5:12-CR-00351-F-15,
5957561, at *2 (E.D.N.C. Oct. 13, 2016).
2016
WL
Thus, Petitioner is
not entitled to relief, whether considered under 28 U.S.C. §
2255 or 18 U.S.C. § 3582, and the motion will be denied by
separate order.
Pursuant to Rule 11(a) of the Rules Governing Proceedings
under 28 U.S.C. § 2255, the court is also required to issue or
deny a certificate of appealability when it enters a final order
adverse to the applicant.
A certificate of appealability is a
“jurisdictional
prerequisite”
earlier order.
United States v. Hadden, 475 F.3d 652, 659 (4th
Cir. 2007).
to
an
appeal
from
the
court’s
A certificate of appealability may issue “only if
the applicant has made a substantial showing of the denial of a
constitutional right.”
28 U.S.C. § 2253(c)(2).
Where the court
denies petitioner’s motion on its merits, a petitioner satisfies
this
standard
by
demonstrating
that
reasonable
jurists
would
find the court’s assessment of the claim debatable or wrong.
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Miller-El
v. Cockrell, 537 U.S. 322, 336–38 (2003).
Upon review of the
record, the court finds that Petitioner does not satisfy the
above standard.
Accordingly, the court will decline to issue a
3
certificate
of
appealability
on
the
issues
which
have
resolved against Petitioner.
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
4
been
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