Spotted Horse v. United States of America

Filing 3

ORDER DENYING 1 MOTION TO VACATE AND ORDER DENYING CERTIFICATE OF APPEALABILITY by Roxanne Spotted Horse. Signed by U.S. District Judge Charles B. Kornmann on 02/07/2017. (SAC)

UNITED STATES DISTRICT COURT

FILED

DISTRICT OF SOUTH DAKOTA

FEB 08 2017

NORTHERN DIVISION
ROXANNE SPOTTED HORSE,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

1:17-CV-01003-CBK
1: 13-CR-10010-CBK
ORDER DENYING MOTION TO VACATE
AND
ORDER DENYING
CERTIFICATE OF APPEALABILITY

Defendant pleaded guilty to assault with a dangerous weapon and was sentenced October
7, 2013, to 12 months and one day custody. She did not appeal her conviction or sentence. She
was released to supervision on January 15, 2014. She admitted to violating the terms of
supervised release and her supervised release was revoked on July 28, 2014. She was sentenced
to 12 months custody. She was released to supervision March 20, 2015. She again admitted to
violating the terms of supervised release and her supervised release was revoked a second time
on August 15, 2016. She was sentenced to 24 months custody. She filed a notice of appeal and
her appeal is still pending before the United States Court of Appeals for the Eighth Circuit.
Petitioner submitted a motion to vacate, set aside, or correct her sentence pursuant to 28
U.S.C. § 2255. Petitioner challenges her August 15, 2016, sentence, contending that she is
entitled to relief based upon Amendment 794 to the United States Sentencing Guidelines.
Amendment 794 was adopted by the United States Sentencing Commission effective November
15, 2015, to clarify the application of Guideline§ 3Bl.2, the mitigating role reduction.
I have conducted an initial consideration of the motion, as required by Rule 4 of the
Rules Governing Section 2255 Proceedings for the United States District Courts.
Petitioner appealed the very sentence she is challenging and that appeal is still pending.
This Court has no jurisdiction to consider any attack of her August 15, 2016, revocation sentence
while this case is on appeal.
Petitioner claims that her sentence should be modified based upon a retroactive
amendment to the sentencing guidelines. Notwithstanding the fact that her case is currently on
appeal, petitioner would not be entitled to relief. Pursuant to Chapter Seven of the sentencing
guidelines, the sentencing range of imprisonment in revocation sentences is calculated based

upon the classification of the violation (Grade A, B, or C) and the offender's criminal history
category. The Chapter Three provisions are not applicable.
Based upon the foregoing,

IT IS ORDERED that the motion to vacate, set aside, or correct sentence is denied.
TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT:
Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255
challenging the failure to award a reduction for a minor participant.
Pursuant to 28 U.S.C. § 2253, a certificate of appealability may issue only ifthe applicant
has made a substantial showing of the denial of a constitutional right.
When the district court denies a habeas petition on procedural grounds
without reaching the prisoner's underlying constitutional claim, a COA
should issue when the prisoner shows, at least, that jurists of reason would
find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling ... Where a
plain procedural bar is present and the district court is correct to invoke it
to dispose of the case, a reasonable jurist could not conclude either that the
district court erred in dismissing the petition or that the petitioner should
be allowed to proceed further. In such a circumstance, no appeal would be
warranted.
Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000) (emphasis
supplied). Petitioner did not and has not made a substantial showing that jurists of reason would
find it debatable whether the petition was correctly dismissed.

IT IS HEREBY CERTIFIED that there does not exist probable cause of an appealable
issue with respect to the Court's order denying petitioner's petition for a writ of habeas corpus.
This in no way hampers the petitioner's ability to request issuance of the certificate by a circuit
judge pursuant to Fed. R. App. P. 22.
DATED this

~y of February, 2017.
BY THE COURT:

c~~~~
United States District Judge

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