Diaz v. USA

Filing 2

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that this case is administratively terminated and will not be considered a motion to vacate brought pursuant to 28 U.S.C. § 2255. IT IS FURTHER ORDERED that a copy ofmovant's motion shall be trans ferred to his criminal case, United States v. Diaz, No. 4:15CR00009 JAR, and filed as a motion for reduction in sentence, brought pursuant to Rule 35 of the Rules of Criminal Procedure and/or a § 3582 motion. The government shall respond to movant' s motion in a reasonable time, as set forth in the Federal Rules of Civil Procedure. IT IS FURTHER ORDERED that no certificate of appealability shall issue. Signed by District Judge John A. Ross on 11/9/16. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ALPHONSO DIAZ,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent,

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No. 4:16CV1742 JAR

MEMORANDUM AND ORDER

Before the Court· is movant Alphonso Diaz's motion to vacate, set aside or correct
sentence, brought pursuant to 28 U.S.C. § 2255. Based on the reasoning set forth below, the
Court will interpret movant' s motion as one for a reduction in sentence and transfer his motion to
his criminal case for full briefing.
Background
On July 31, 2015, movant pied guilty to the offense of conspiracy to distribute
hydrocodone. See United States v. Diaz, No. 4:15CR00009 JAR (E.D.Mo. 2015). On November
5, 2015, this Court sentenced movant to the Bureau of Prisons for a term of imprisonment of24
months and two years' supervised release. Id.

Movant did not appeal his conviction and

sentence.
Discussion
Movant filed the instant motion to vacate, pursuant to 28 U.S.C. § 2255 on October 26,
2016, by placing it in the prison mailing system. In his motion, movant requests that the Court
apply a new amendment to the United States Sentencing Guidelines, referred to as the

"Mitigating Role Amendment," or Amendment 794, which amended the commentary to
U.S.S.G. § 3Bl.2. 1
In essence, movant is seeking a sentence reduction through a clarifying amendment to the
sentencing guidelines. The only existing authority for the Court to modify movant' s sentence
comes from Rule 35 of the Federal Rules of Criminal Procedure, or 18 U.S. C. § 3582, which is
more properly sought through a motion for reduction in sentence in movant' s criminal case.
Therefore, the Court will administratively terminate the instant action and it will not be counted
as a motion to vacate under 28 U.S.C. § 2255. Movant's motion will be interpreted as a motion
for reduction in sentence, pursuant to Rule 35 of the Rules of Criminal Procedure and transferred
to his criminal action.
Accordingly,

IT IS HEREBY ORDERED that this case is administratively terminated and will not
be considered a motion to vacate brought pursuant to 28 U.S.C. § 2255.

IT IS FURTHER ORDERED that a copy ofmovant's motion shall be transferred to his
criminal case, United States v. Diaz, No. 4:15CR00009 JAR, and filed as a motion for reduction
in sentence, brought pursuant to Rule 35 of the Rules of Criminal Procedure and/or a § 3582
motion. The government shall respond to movant' s motion in a reasonable time, as set forth in
the Federal Rules of Civil Procedure.

IT IS FURTHER ORDERED that no certificate of appealability shall issue.
Dated this 9th day ofNovember, 2016.

.ROSS
ED STATES DISTRICT JUDGE
1

Tue commentary to Sentencing Guidelines was amended on November 1, 2015.

2