Herrera v. USA

Filing 3

MEMORANDUM OPINION AND ORDER: The Court summarily DISMISSES the motion to vacate, set aside, or correct sentence brought pursuant to 28 U.S.C. § 2255. (Ordered by Judge Ed Kinkeade on 8/28/2017) (epm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
MYRA ZULEMA HERRERA
(BOP Registration No. 53003-177),
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 3:17-CV-2149-K
(3:15-CR-458-K-(04))

MEMORANDUM OPINION AND ORDER
Movant Myra Zulema Herrera, a federal prisoner, proceeding pro se, has filed a
28 U.S.C. § 2255 motion to vacate, set aside, or correct her sentence. See Dkt. No. 2.
Because it plainly appears that Herrera is not entitled to relief, for the reasons
explained below, the Court DISMISSES her motion pursuant to Rule 4(b) of the
Rules Governing Section 2255 Proceedings for the United States District Courts.
Background
Herrera pleaded guilty to conspiracy to possess with the intent to distribute
methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1) & (b)(1)(c). See United
States v. Herrejon, 3:15-CR-00458-K-4 (N.D. Tex.). The Court sentenced her to 48
months in prison to be followed by two years of supervised release. See id. at Dkt. No.
55. She did not file a direct appeal.
She now moves under Section 2255 to reduce her sentence. Although her
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Section 2255 motion is titled “AMENDMENT OF MOTION 28 U.S.C. § 2255” and
references an “original” Section 2255 motion, see Dkt. No. 2 at 2, a review of the
record shows that this is Herrera’s first, and only, Section 2255 motion. In it, she
argues that the Court should reduce her sentence under Amendment 794 to the
United States Sentencing Guidelines (“U.S.S.G.”), which amended the commentary to
U.S.S.G. § 3B1.2 to clarify the factors a district court should consider when
determining whether to reduce the defendant’s offense level due to a minor or
mitigating role.
Legal Standard and Analysis
Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United
States District Courts provides for summary dismissal “[i]f it plainly appears . . . that
the moving party is not entitled to relief.” It plainly appears that Herrera is not entitled
to relief for at least two reasons. First, the Court did, in fact, reduce her offense level
for

her

minor

role

in

the

offense

under

Section

3B1.2.

See

Herrejon,

3:15-CR-00458-K-4, Dkt. No. 56 (adopting the pre-sentence investigation report,
which included a two-level minor role reduction, pursuant to U.S.S.G. § 3B1.2(b)).
Second, to the extent that Herrera argues that the Court’s sentencing calculation was
nevertheless incorrect, an “‘attempt to challenge the court’s sentencing calculations is
not a basis for a section 2255 proceeding.’” Wright v. United States, 3:16-cv-610-K,
2016 WL 949747, at *2 (N.D. Tex. Mar. 13, 2016) (quoting Momin v. United States,

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Nos. 3:07-cv-889-L & 3:04-cr-289-H, 2008 WL 1971390, at *1) (N.D. Tex. Apr. 30,
2008); accord United States v. Williamson, 183 F.3d 458, 462 (5th Cir. 1999) (“Section
2255 motions may raise only constitutional errors and other injures that could not
have been raised on direct appeal that will result in a miscarriage of justice if left
unaddressed. Misapplications of the Sentencing Guidelines fall into neither category
and hence are not cognizable in § 2255 motions.”) (citation omitted). That is,
Herrera’s claim that she was entitled to a four-point reduction under U.S.S.G. §
3B1.2(b), as explained by Amendment 794, is not cognizable here. See United States v.
Guerrero, ___ F. App’x ___, ___, 2017 WL 2703676, at * 1 (5th Cir. 2017) (noting that
the movant’s claim that the district court should have retroactively applied
Amendment 794 was not cognizable in a Section 2255 proceeding).

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Conclusion
For the foregoing reasons, “it plainly appears . . . that the moving party is not
entitled to relief.” RULES GOVERNING SECTION 2255 PROCEEDINGS

FOR THE

UNITED

STATES DISTRICT COURTS, Rule 4(b). The Court therefore summarily DISMISSES the
motion to vacate, set aside, or correct sentence brought pursuant to 28 U.S.C. § 2255.
SO ORDERED.
Signed August 28th, 2017.

ED KINKEADE
UNITED STATES DISTRICT JUDGE

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