Forman v. USA

Filing 5

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING 3 REPORT AND RECOMMENDATIONS. Signed by District Judge Marcia A. Crone on 11/19/19. (ljw, )

UNITED STATES DISTRICT COURT

CRISTIAN JAQUES FORMAN,
Movant,
versus
UNITED STATES OF AMERICA,
Respondent.

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 1:16-CV-461

MEMORANDUM ORDER OVERRULING MOVANT’S OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Movant Cristian Jaques Forman, an inmate at the Federal Prison Camp located in Anthony,
Texas, proceeding pro se, brought this motion to vacate, set aside or correct sentence pursuant to
28 U.S.C. § 2255.
The court referred this matter to the Honorable Zack Hawthorn, United States Magistrate
Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court.
The magistrate judge recommends that the motion be dismissed as barred by limitations or, in the
alternative, denied.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record, pleadings and all available evidence. Movant filed
objections to the magistrate judge’s Report and Recommendation. This requires a de novo review
of the objections in relation to the pleadings and the applicable law. See FED. R. CIV. P. 72(b).
After careful consideration, the court concludes movant’s objections are without merit.
Movant seeks a reduction in his sentence for a minor role pursuant to a recent amendment to the
United States Sentencing Guidelines, Amendment 794.

However, after movant filed his

objections, the Fifth Circuit considered the issue and found that Amendment 794 is not
retroactively applicable and that relief is unavailable in a § 2255 proceeding based on the
Amendment. United States v. Alipizar, 718 F. App’x 305, 306 (5th Cir. 2018); In re Pinales, 703
F. App’x 353, 354 (5th Cir. 2017); United States v. Guerrero, 691 F. App’x 179, 180 (5th Cir.
2017). Accordingly, movant’s objections should be overruled.
Furthermore, the movant is not entitled to the issuance of a certificate of appealability. An
appeal from a judgment denying a motion under section 2255 may not proceed unless a judge
issues a certificate of appealability. See 28 U.S.C. § 2253; FED. R. APP. P. 22(b). The standard
for granting a certificate of appealability, like that for granting a certificate of probable cause to
appeal under prior law, requires the movant to make a substantial showing of the denial of a
federal constitutional right. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Elizalde v.
Dretke, 362 F.3d 323, 328 (5th Cir. 2004); see also Barefoot v. Estelle, 463 U.S. 880, 893
(1982). In making that substantial showing, the movant need not establish that he should prevail
on the merits. Rather, he must demonstrate that the issues are subject to debate among jurists of
reason, that a court could resolve the issues in a different manner, or that the questions presented
are worthy of encouragement to proceed further. See Slack, 529 U.S. at 483-84. Any doubt
regarding whether to grant a certificate of appealability is resolved in favor of the movant, and the
severity of the penalty may be considered in making this determination. See Miller v. Johnson,
200 F.3d 274, 280-81 (5th Cir.), cert. denied, 531 U.S. 849 (2000).
Here, the movant has not shown that any of the issues raised by his claims are subject to
debate among jurists of reason. The factual and legal questions advanced by the movant are not
novel and have been consistently resolved adversely to his position. In addition, the questions

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presented are not worthy of encouragement to proceed further. Therefore, the movant has failed
to make a sufficient showing to merit the issuance of a certificate of appealability. Accordingly,
a certificate of appealability shall not be issued.
ORDER
Accordingly, movant’s objections are OVERRULED.

The findings of fact and

conclusions of law of the magistrate judge are correct, and the report of the magistrate judge is
ADOPTED. A final judgment will be entered in this case in accordance with the magistrate
judge’s recommendation.
SIGNED at Beaumont, Texas, this 19th day of November, 2019.

________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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