Harris v. United States of America

Filing 2

ORDER re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Jasquez Bonet Harris. Mr. Harris's request for § 2255 relief, construed as a motion for reduction under § 3582(c)(2)pursuant to Amendment 794 has no legal validity and must be dismissed. See United States v. White, 765 F.3d 1240, 1250 (10th Cir. 2014). In light of this ruling, Defendants request for appointment of counsel is DENIED. Signed by Honorable David L. Russell on 10/19/16. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,

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Plaintiff,
v.
JASQUEZ HARRIS,
Defendant.

CR-12-90-R
CIV-16-1066-R

ORDER
Before the Court is Defendant’s Pro-Se Motion of Eligibility and Motion for
Appointment of Counsel, Pursuant to the Criminal Justice Act of 1964 (18 U.S.C. §
3006A). (Doc. No. 1007). Defendant does not style the motion as one seeking relief under
28 U.S.C. § 2255, however, within the document he states that such a motion is the sole
means by which he may seek a reduction of his sentence, the time for pursuing a direct
appeal having expired. The Court hereby construes the motion as having been filed
pursuant to 28 U.S.C. § 3582(c), denies his request for the appointment of counsel, and
denies his request for reduction of sentence.
Defendant Harris pled guilty in this Court to one count of conspiracy to violate
federal drug laws in violation of 21 U.S.C. § 846. For this offense, on January 15, 2013,
the Court sentenced Defendant to 120-months imprisonment. Defendant did not pursue a
direct appeal. Defendant now seeks relief, ostensibly pursuant to 28 U.S.C. § 2255,
asserting that he is entitled to a reduction based on new guidelines set forth in Amendment

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794 to the federal sentencing guidelines because his role in the offense was minor. In
support of his contention Defendant cites to the recent decision of the Ninth Circuit in
United States v. Quintero-Leyva, 823 F.3d 519 (9th Cir. 2016), wherein the court applied
Amendment 794 retroactively on direct appeal to a defendant who had argued at
sentencing, prior to the amendment, for a reduction based on his minor role.
The Court first notes that although Mr. Harris purports to rely on § 2255, his reliance
is misguided. A viable § 2255 claim must be based on a lack of jurisdiction, constitutional
error, fundamental defects resulting in “a complete miscarriage of justice,” or “a
proceeding inconsistent with the rudimentary demands of fair procedure.” United States v.
Timmreck, 441 U.S. 780, 783 84 (1979)(citations and quotations omitted). Instead, Mr.
Harris is seeking the retroactive benefit of an amendment issued after he was sentenced.
This type of claim must be brought as a motion under 18 U.S.C. § 3582, not as a § 2255
motion. See Castro v. United States, 540 U.S. 375, 381–82 (2003) (“Federal courts
sometimes will ignore the legal label that a pro se litigant attaches to a motion and recharacterize the motion in order to place it within a different legal category.... They may
do so in order to avoid an unnecessary dismissal, ... to avoid inappropriately stringent
application of formal labeling requirements, ... or to create a better correspondence between
the substance of a pro se motion's claim and its underlying legal basis.”); see also United
States v. Henriquez–Serrano, No. 09–3003, 2009 WL 1228248, at *1 (10th Cir. May 6,
2009) (construing pro se motion labeled as § 2255 petition as a motion to reduce sentence

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under § 3582).Therefore, the court will construe his § 2255 motion as a motion for
reduction pursuant to § 3582.
Furthermore, Mr. Harris is not entitled to relief under § 3582. Section 3582(c)(2)
allows for a reduction if the defendant's sentence was “based on a sentencing range that
has subsequently been lowered by the Sentencing Commission,” and “such reduction is
consistent with the applicable policy statements issued by the Sentencing Commission.”
18 U.S.C. § 3582(c)(2). The “applicable policy statements” referenced in § 3582(c)(2) are
those found in § 1B1.10 of the Sentencing Guidelines. Pursuant to that provision, a
sentence reduction under § 3582(c)(2) is authorized only when a retroactively applicable
Guideline amendment has "the effect of lowering the defendant’s applicable guideline
range.” U.S.S.G. § 1B1.10(a)(2)(B). Amendment 794, which amended § 3B1.2 of the
United States Sentencing Guidelines ("USSG"), took effect on November 1, 2015, after
Mr. Harris’s conviction became final. In general, the Court is required to use the guidelines
manual in effect on the date a defendant is sentenced. See Dorsey v. United States, ___
U.S. ____, 132 S.Ct. 2321, 2332 (2012); U.S.S.G. § 1B1.11(a) (requiring use of “the
Guidelines Manual in effect on the date that the defendant is sentenced”). The United States
Sentencing Commission may, however, specify amendments that are to be retroactively
applied to all cases, including those on collateral review. See USSG. § 1B1.10(d) (2015)
(listing retroactive guideline amendments). Section 1B1.10, which lists all Guidelines
amendments that the Sentencing Commission has made retroactively applicable to
defendants on collateral review, does not include Amendment 794. Accordingly, Mr.

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Harris’s request for § 2255 relief, construed as a motion for reduction under § 3582(c)(2)
pursuant to Amendment 794 has no legal validity and must be dismissed. See United States
v. White, 765 F.3d 1240, 1250 (10th Cir. 2014). In light of this ruling, Defendant’s request
for appointment of counsel is DENIED.
IT IS SO ORDERED this 19th day of October, 2016.

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