Diaz v. United States of America
Filing
4
ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255, DENYING A CERTIFICATE OF APPEALABILITY, CERTIFYING THAT AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL. Signed by Judge S. Thomas Anderson on 10/27/2016. (Anderson, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
OSCAR DIAZ,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
Cv. No. 2:16-cv-02804-STA-dkv
Cr. No. 2:13-cr-20166-01-STA
ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255,
DENYING A CERTIFICATE OF APPEALABILITY,
CERTIFYING THAT AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH,
AND
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Before the Court is the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody (“§ 2255 Motion”) filed by Movant, Oscar Diaz,
Bureau of Prisons register number 25915-076, an inmate at the Federal Correctional Institution
Medium in Yazoo City, Mississippi. (§ 2255 Mot., ECF No. 1.) For the reasons stated below,
the Court DENIES the § 2255 Motion.
I.
PROCEDURAL HISTORY
A.
Criminal Case Number 2:13-cr-20166
On May 14, 2013, a federal grand jury returned a single-count indictment charging that,
on or about May 10, 2013, Diaz and Lazaro Balderas attempted to possess with the intent to
distribute five kilograms or more of a mixture and substance containing a detectable amount of
cocaine, in violation of 21 U.S.C. § 846. (Indictment, ECF No. 1.) According to the presentence
report (“PSR”), the case arose when fifteen kilograms of cocaine were discovered in a car
stopped at a border checkpoint in Luna County, New Mexico. (PSR ¶ 5.) The driver advised the
border agents that she was delivering the cocaine to a person in Memphis, Tennessee, who was
later discovered to be Diaz. (Id. ¶¶ 6-11.) Balderas was Diaz’s “right hand man.” (Id. ¶ 12.)
Pursuant to a written plea agreement, Diaz appeared before this Judge on September 26,
2013, to plead guilty to the sole count of the indictment. (Min. Entry, ECF No. 31; Plea
Agreement, ECF No. 32.) At a hearing on January 13, 2014, the Court sentenced Diaz to a term
of imprisonment of seventy-two months, to be followed by a five-year period of supervised
release. (Min. Entry, id., ECF No. 40.)1 Judgment was entered on January 14, 2014. (J. in a
Criminal Case, ECF No. 41 (sealed).) Diaz did not take a direct appeal.
On December 29, 2014, Diaz filed a pro se motion seeking a reduction in his sentence
pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 782 to the sentencing guidelines. (Mot. for
Reduction of Sentence, ECF No. 43.) On February 27, 2015, the Federal Defender filed a
similar motion on behalf of Diaz. (Def.’s Consent Mot. to Reduce Sentence, ECF No. 47.) On
February 27, 2015, the Court granted the motions and reduced Diaz’s sentence to fifty-nine
months. (Order Regarding Mot. for Sentence Reduction Pursuant to 18 U.S.C. § 3582(c)(2),
ECF No. 48 (sealed).)
1
The 2013 edition of the Guidelines Manual was used to compute Diaz’s sentence. (PSR
¶ 17.) Pursuant to § 2D1.1(c)(4) of the United States Sentencing Guidelines (“U.S.S.G.”), the
base offense level for a drug offense involving at least 5 kilograms but less than 15 kilograms of
cocaine is 32. The Court rejected the recommendation in the PSR that Diaz receive a two-point
enhancement for being a manager or supervisor in a criminal activity that involved fewer than
five participants. U.S.S.G. § 3B1.1(c). The Court also agreed with the defense that Diaz was
eligible for the “safety valve” reduction in U.S.S.G. § 5C1.2 and, consequently, awarded him a
two-level reduction, id. § 2D1.1(b)(16). After a three-level reduction for acceptance of
responsibility, id. § 3E1.1, the total offense level was 27. Given Diaz’s criminal history category
of I, the guideline sentencing range was 70-87 months.
2
B.
Civil Case Number 2:16-cv-02804
On October 6, 2016, Diaz filed his pro se § 2255 Motion, accompanied by a legal
memorandum. (§ 2255 Mot., ECF No. 1; Mem. of Law in Supp. of § 2255 Mot., ECF No. 1-1.)
The sole issue presented in the § 2255 Motion is whether,
PURSUANT TO THE NEW AMENDMENT 794 TO USSG § 3B1.1,
MOVANT’S SENTENCE IS ENTITLED TO RELIEF BASED ON A
RETROACTIVE AMENDED § 3B1.2 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 THE REDUCTION, AND THE FACT
THAT A DEFENDANT PERFORMS AN ESSENTIAL OR INDISPENSABLE
ROLE IN THE CRIMINAL ACTIVITY IS NOT DETERMINATIVE[.]
(§ 2255 Mot. at PageID 4, ECF No. 1; see also Mem. of Law in Supp. of § 2255 Mot. at 2-4,
ECF No. 1-1.)
II.
LEGAL STANDARDS
Pursuant to 28 U.S.C. § 2255(a),
[a] prisoner in custody under sentence of a court established by Act of Congress
claiming the right to be released upon the ground that the sentence was imposed
in violation of the Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack, may
move the court which imposed the sentence to vacate, set aside or correct the
sentence.
“A prisoner seeking relief under 28 U.S.C. § 2255 must allege either: (1) an error of
constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of
fact or law that was so fundamental as to render the entire proceeding invalid.” Short v. United
States, 471 F.3d 686, 691 (6th Cir. 2006) (internal quotation marks omitted).
After a § 2255 motion is filed, it is reviewed by the Court and, “[i]f it plainly appears
from the motion, any attached exhibits, and the record of prior proceedings that the moving party
is not entitled to relief, the judge must dismiss the motion.” Rule 4(b), Rules Governing Section
3
2255 Proceedings for the United States District Courts (“§ 2255 Rules”). Where the judge
considering the § 2255 motion also presided over the criminal case, the judge may rely on his
recollection of the prior case. Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996); see
also Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977) (“[A] motion under § 2255 is ordinarily
presented to the judge who presided at the original conviction and sentencing of the prisoner. In
some cases, the judge’s recollection of the events at issue may enable him summarily to dismiss
a § 2255 motion . . . .”). The movant has the burden of proving that he is entitled to relief by a
preponderance of the evidence. Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006).
III.
ANALYSIS OF MOVANT’S CLAIM
In his § 2255 Motion, Diaz seeks a reduction of his sentence under Amendment 794 to
the sentencing guidelines, which took effect on November 1, 2015. That amendment clarified
the circumstances in which § 3B1.2, which provides an adjustment of 2, 3, or 4 levels for a
defendant who plays a part in committing the offense that makes him “substantially less culpable
than the average participant,” may be applied. Under the amendment, the defendant is to be
compared with other participants “in the criminal activity,” rather than to the universe of persons
participating in similar crimes. Diaz argues that he is entitled to receive a two-level reduction as
a “minor participant.” (Mem. of Law in Supp. of § 2255 Mot. at 4, ECF No. 1-1.)
Diaz is not entitled to relief. The § 2255 Motion does not allege an error of constitutional
magnitude, a sentence imposed outside the statutory limits, or an error of fact or law that was so
fundamental as to render the entire proceeding invalid. See supra p. 3. Ordinarily, errors in the
application of the sentencing guidelines are not cognizable under § 2255. Grant v. United States,
72 F.3d 503, 506 (6th Cir. 1996); see also United States v. Lankford, Nos. 99-5870, 99-6075,
2000 WL 1175592, at *1 (6th Cir. Aug. 9, 2000) (“Technical violations of the federal sentencing
4
guidelines will not warrant [§ 2255] relief.”); United States v. Norfleet, No. 98-1311, 1999 WL
1281718, at *5 (6th Cir. Dec. 28, 1999) (“Normally, Norfleet could not obtain collateral review
of sentencing guidelines errors.”); Hunter v. United States, 160 F.3d 1109, 1115 (6th Cir. 1998)
(“Relief is not available in a section 2255 proceeding for a claim of nonconstitutional,
sentencing-guideline error when that error was procedurally defaulted through the failure to
bring a direct appeal.”). Diaz does not argue that his sentence was incorrect when it was
imposed. Therefore, he is not entitled to relief under 28 U.S.C. § 2255. United States v. Brock,
Nos. 1:13-cr-025(6), 1:16-cv-881, 2016 WL 4527477, at *1-2 (S.D. Ohio Aug. 30, 2016) (report
and recommendation); United States v. Brandstetter, Nos. 6:13-CR-7-DCR-REW-6, 6:16-CV43-DCR-REW, 2016 WL 4501431, at *6 (E.D. Ky. Aug. 3, 2016) (report and recommendation),
adopted, 2016 WL 4501465 (E.D. Ky. Aug. 26, 2016).
The proper vehicle for an inmate to obtain a sentence reduction because of a change in
the sentencing guidelines is 18 U.S.C. § 3582(c)(2). United States v. Logan, Nos. 5:16 CV 1461,
5:12 CR 286, 2016 WL 5338060, at *5 (N.D. Ohio Sept. 22, 2016); United States v. Gillispie,
Nos. 5:12-CR-29-JMH-REW, 5:16-CV-316-JMH-REW, 2016 WL 5402781, at *1 (E.D. Ky.
Aug. 26, 2016) (report and recommendation), adopted, 2016 WL 5419432 (E.D. Ky. Sept. 26,
2016). Even if the Court were, in the interest of judicial economy, to construe Diaz’s § 2255
Motion as a motion under 18 U.S.C. § 3582(c)(2), Diaz would not be entitled to relief.
Section 3582(c)(2) authorizes a reduction for a defendant “who has been sentenced to a
term of imprisonment based on a sentencing range that has subsequently been lowered by the
Sentencing Commission pursuant to 28 U.S.C. 994(o) . . . , if such a reduction is consistent with
applicable policy statements issued by the Sentencing Commission.” “Section 1B1.10 of the
Sentencing Guidelines contains the policy statement for § 3582(c)(2). Subsection 1B1.10(a)
5
provides that the court may reduce the defendant’s term of imprisonment if the applicable
guideline range has subsequently been lowered by one of the amendments named in subsection
(d).” United States v. Bonds, No. 15-2405, 2016 WL 5956726, at *3 (6th Cir. Oct. 14, 2016); see
also United States v. Watkins, No. 15-6205, 2016 WL 3924240, at *1 (6th Cir. July 21, 2016)
(“If no amendment listed in § 1B1.10(d) lowers the defendant’s ‘applicable guideline range,’
then a sentence reduction is inconsistent with § 1B1.10 and, therefore, not authorized by §
3582(c)(2).”) (citing U.S.S.G. § 1B1.10(a)(2)(B)). Because Amendment 794 is not listed in
U.S.S.G. § 1B1.10(d), Diaz is not entitled to relief under § 3582(c)(2). Logan, 2016 WL
5338060, at *5; Gillispie, 2016 WL 5402781, at *2.2
Finally, even if Amendment 794 were applicable, Diaz has not demonstrated that he
would qualify as a “minor participant.” A minor participant is one “who is less culpable than
most other participants in the criminal activity, but whose role could not be described as
minimal.” U.S.S.G. § 3B1.2 application note 5. However, “an adjustment under this guideline
may not apply to a defendant who is the only defendant convicted of an offense unless that
offense involved other participants in addition to the defendant and the defendant otherwise
qualifies for such an adjustment.” Id. application note 2. The only other person charged for the
offense was Balderas, who the PSR describes as Diaz’s “right hand man.” The other individual
involved was a “cooperating defendant” who was a drug courier for Diaz. (PSR ¶¶ 5-9.) The
2
Diaz’s reliance on the Ninth Circuit’s decision in United States v. Quintero-Leyva, 823
F.3d 519 (9th Cir. 2016), is misplaced. In Quintero-Leyva, the Ninth Circuit held that
Amendment 794 applies retroactively to cases on direct appeal. Id. at 522, 523. The Sixth
Circuit recently issued a similar decision. See United States v. Carter, Nos. 15-3618, -3643,
2016 WL 5682707, at *6 (6th Cir. Oct. 3, 2016). These decisions do not address whether
Amendment 794 is retroactively applicable to cases on collateral review. See Aguas-Landaverde
v. United States, Case No. 2:16-CV-00854, Crim. No. 2:15-CR-00183(2), 2016 WL 5341799, at
*2 (S.D. Ohio Sept. 23, 2016) (report and recommendation); Gillispie, 2016 WL 5402781, at *2
n.4.
6
Court is not persuaded that Diaz is substantially less culpable than Balderas or the cooperating
defendant. Therefore, he is not entitled to a reduction under U.S.S.G. § 3B1.2.
* * * *
The motion, together with the files and record in this case “conclusively show that the
prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see also Rule 4(b), § 2255 Rules. The
Court finds that a response is not required from the United States Attorney and that the motion
may be resolved without an evidentiary hearing. See Smith v. United States, 348 F.3d 545, 550
(6th Cir. 2003); Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999). Movant’s
conviction and sentence are valid and, therefore, his § 2255 Motion is DENIED. Judgment shall
be entered for the United States.
IV.
APPEAL ISSUES
Twenty-eight U.S.C. § 2253(a) requires the district court to evaluate the appealability of
its decision denying a § 2255 motion and to issue a certificate of appealability (“COA”) “only if
the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2); see also Fed. R. App. P. 22(b).
No § 2255 movant may appeal without this
certificate.
The COA must indicate the specific issue(s) that satisfy the required showing. 28 U.S.C.
§§ 2253(c)(2) & (3). A “substantial showing” is made when the movant demonstrates that
“reasonable jurists could debate whether (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal
quotation marks omitted); see also Henley v. Bell, 308 F. App’x 989, 990 (6th Cir. 2009) (per
curiam) (same). A COA does not require a showing that the appeal will succeed. Miller-El, 537
7
U.S. at 337; Caldwell v. Lewis, 414 F. App’x 809, 814-15 (6th Cir. 2011) (same). Courts should
not issue a COA as a matter of course. Bradley v. Birkett, 156 F. App’x 771, 773 (6th Cir.
2005).
There can be no question that the issue raised in Movant’s § 2255 Motion is meritless for
the reasons previously stated. Because any appeal by Movant on the issue raised in his § 2255
Motion does not deserve attention, the Court DENIES a certificate of appealability.
The Sixth Circuit has held that the Prison Litigation Reform Act of 1995, 28 U.S.C. §§
1915(a)-(b), does not apply to appeals of orders denying § 2255 motions. Kincade v. Sparkman,
117 F.3d 949, 951 (6th Cir. 1997). Rather, to appeal in forma pauperis in a § 2255 case, and
thereby avoid the appellate filing fee required by 28 U.S.C. §§ 1913 and 1917, the prisoner must
obtain pauper status pursuant to Federal Rule of Appellate Procedure 24(a). Kincade, 117 F.3d
at 952. Rule 24(a) provides that a party seeking pauper status on appeal must first file a motion
in the district court, along with a supporting affidavit. Fed. R. App. P. 24(a)(1). However, Rule
24(a) also provides that if the district court certifies that an appeal would not be taken in good
faith, or otherwise denies leave to appeal in forma pauperis, the prisoner must file his motion to
proceed in forma pauperis in the appellate court. See Fed. R. App. P. 24(a) (4)-(5).
In this case, for the same reasons the Court denies a certificate of appealability, the Court
determines that any appeal would not be taken in good faith. It is therefore CERTIFIED,
pursuant to Federal Rule of Appellate Procedure 24(a), that any appeal in this matter would not
be taken in good faith. Leave to appeal in forma pauperis is DENIED.3
3
If Movant files a notice of appeal, he must also pay the full $505 appellate filing fee or
file a motion to proceed in forma pauperis and supporting affidavit in the Sixth Circuit Court of
Appeals within 30 days.
8
IT IS SO ORDERED this 27th day of October, 2016.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
9
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?