Rogers v. USA - 2255
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
Civil Action No. DKC 16-3133
Criminal Case No. DKC 14-0463
UNITED STATES OF AMERICA
Petitioner Nichelle Nicole Rogers filed a Motion to Vacate
sentence based on a sentencing guideline amendment adopted after
For the following reasons, the motion will be
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.
seeks a reduction in her guideline range, and a resentencing,
As recently discussed by another district judge in
denying a similar motion:
Amendment 794 amended the Commentary to
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
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.
applicable on collateral review. U.S.S.G. §
1B1.10 lists those Guideline amendments that
have been made retroactively applicable to
Amendment 794 is not listed. United States
7:16CV81172, 2016 WL 4524246, at *2 (W.D.
Va. Aug. 26, 2016).
The effective date of Amendment 794 was
November 1, 2015.
U.S.S.G. app. C., amend
794, at 118 (Supp. Nov. 1, 2015).
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
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
activity.” See U.S.S.G. app. C, amend. 794,
at 116 (Supp. Nov. 1, 2015).
5957561, at *2 (E.D.N.C. Oct. 13, 2016).
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
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
United States v. Hadden, 475 F.3d 652, 659 (4th
A certificate of appealability may issue “only if
the applicant has made a substantial showing of the denial of a
28 U.S.C. § 2253(c)(2).
Where the court
denies petitioner’s motion on its merits, a petitioner satisfies
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
Accordingly, the court will decline to issue a
resolved against Petitioner.
A separate order will follow.
DEBORAH K. CHASANOW
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?