Gomez v. USA

Filing 2

ORDERED that Maria Gomez's motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255 (ECF No. 40 in case 3:11-cr-100) is DENIED. IT IS FURTHER ORDERED that plaintiff is DENIED a certificate of appealability. Signed by Judge Larry R. Hicks on 3/20/2017. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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UNITED STATES OF AMERICA,

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Plaintiff,
Case No. 3:11-cr-0100-LRH-VPC

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v.
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ORDER
MARIA GOMEZ,
Defendant.

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Before the court is defendant Maria Gomez’s (“Gomez”) motion to vacate, set aside, or

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correct her sentence pursuant to 28 U.S.C. ' 2255. ECF No. 40. The United States filed an

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opposition to the motion. ECF No. 43.

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I.

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Facts and Procedural Background
On August 24, 2011, Gomez was indicted on two charges: (1) conspiracy to possess with

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intent to distribute methamphetamine in violation of 21 U.S.C. §§ 846 & 841(a)(1) and

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(b)(1)(A); and (2) possession with intent to distribute methamphetamine in violation of 21 U.S.C.

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§§ 841(a)(1) and (b)(1)(A). ECF No. 11. On January 10, 2012, Gomez pled guilty to count one

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of the indictment for conspiracy to possess with intent to distribute methamphetamine.

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ECF No. 19. She was subsequently sentenced to ninety-six (96) months incarceration.

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ECF No. 32. Gomez did not appeal her sentence to the Ninth Circuit Court of Appeals. On

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May 11, 2015, the court reduced Gomez’s sentence to eighty-seven (87) months incarceration

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based on a guideline sentencing range that was subsequently lowered and made retroactive by

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the United States Sentencing Commission (“USSC”). ECF No. 38.
Subsequently, on August 4, 2016, Gomez filed the present motion to vacate, set aside, or

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correct her sentence pursuant to 28 U.S.C. ' 2255. ECF No. 40.

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II.

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Motion to Vacate Sentence
Pursuant to 28 U.S.C. '2255, a prisoner may move the court to vacate, set aside, or

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correct a sentence if Athe sentence was imposed in violation of the Constitution or laws of the

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United States, or that the court was without jurisdiction to impose such sentence, or that the

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sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral

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attack.@ 28 U.S.C. ' 2255; 2 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice

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and Procedure § 41.3b (5th ed. 2005).

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In her motion to vacate, Gomez argues that the court should grant her motion because she

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was a minor participant in the conspiracy, and thus, is entitled to a minor participant reduction

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under Amendment 794 to the Sentencing Guidelines. See ECF No. 40. The court disagrees.

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In November 2015, the United States Sentencing Commission modified the commentary

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to sentencing guideline § 3B1.2 through Amendment 794. See U.S.S.G. App. C, Amend. 794.

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Through that amendment, a criminal defendant may receive a reduction to his or her guideline

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calculation, and thus to the applicable guideline sentencing range, if that defendant was a

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minimal participant in a criminal conspiracy. Such a reduction is made at the time of sentencing

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and is solely within the discretion of the sentencing court.

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In her motion, Gomez contends that she was a minimal participant in the underlying

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criminal conspiracy, and as such, would have been entitled to receive a reduction to her guideline

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calculation range had Amendment 794 been in effect at the time of her sentencing. See

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ECF No. 40. However, Amendment 794 was not made retroactive by the USSC in cases, like

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Gomez’s, on collateral review. See, e.g., United States v. Burlingame, 2016 U.S. Dist. LEXIS

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158288, *5 (E.D. Mich. 2016) (holding that Amendment 794 has not been held to be retroactive

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on collateral appeal); Aguas-Landaverde v. United States, 2016 U.S. Dist. LEXIS 13-525, *2

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(S.D. Ohio 2016); United States v. Tapia, 2016 U.S. Dist. LEXIS 123706, *1 (M.D. Fla. 2016).
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Accordingly, the court shall deny her motion to vacate, set aside, or correct her sentence pursuant

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to 28 U.S.C. ' 2255.

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III.

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Certificate of Appealability
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AAEDPA@), Aan appeal

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may not be taken to the court of appeals from . . . the final order in a proceeding under section

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2255@ unless a district court issues a certificate of appealability (ACOA@) based on Aa substantial

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showing of the denial of a constitutional right.@ 28 U.S.C. ' 2253(c)(1)(B).

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Here, the court finds that Gomez has not shown a denial of a constitutional right in her
motion. In denying his motion, the court notes that Gomez has failed to raise a meritorious

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challenge to her sentence based upon the subsequent sentencing guideline amendment,

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Amendment 794. Supra, Section II. As such, the court finds that Gomez has failed to

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demonstrate that reasonable jurists would find the court’s assessment of her claims debatable or

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wrong. See Allen v. Ornoski, 435 F.3d 946, 950-951 (9th Cir. 2006). Therefore, the court shall

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deny Gomez a certificate of appealability as to her motion to vacate sentence.

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IT IS THEREFORE ORDERED that defendant=s motion to vacate, set aside, or correct
her sentence pursuant to 28 U.S.C. ' 2255 (ECF No. 40) is DENIED.

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IT IS FURTHER ORDERED that defendant is DENIED a certificate of appealability.

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IT IS SO ORDERED.

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DATED this 20th day of March, 2017.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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