United States District Court, D. Nevada
R. HICKS UNITED STATES DISTRICT JUDGE.
the court is defendant Maria Gomez's
(“Gomez”) motion to vacate, set aside, or correct
her sentence pursuant to 28 U.S.C. § 2255. ECF No. 40.
The United States filed an opposition to the motion. ECF No.
Facts and Procedural Background
August 24, 2011, Gomez was indicted on two charges: (1)
conspiracy to possess with intent to distribute
methamphetamine in violation of 21 U.S.C. §§ 846
& 841(a)(1) and (b)(1)(A); and (2) possession with intent
to distribute methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(A). ECF No. 11. On January
10, 2012, Gomez pled guilty to count one of the indictment
for conspiracy to possess with intent to distribute
methamphetamine. ECF No. 19. She was subsequently sentenced
to ninety-six (96) months incarceration. ECF No. 32. Gomez
did not appeal her sentence to the Ninth Circuit Court of
Appeals. On May 11, 2015, the court reduced Gomez's
sentence to eighty-seven (87) months incarceration based on a
guideline sentencing range that was subsequently lowered and
made retroactive by the United States Sentencing Commission
(“USSC”). ECF No. 38.
on August 4, 2016, Gomez filed the present motion to vacate,
set aside, or correct her sentence pursuant to 28 U.S.C.
§ 2255. ECF No. 40.
Motion to Vacate Sentence
to 28 U.S.C. Â§2255, a prisoner may move the court to vacate,
set aside, or correct a sentence if ''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.'' 28 U.S.C. § 2255; 2 Randy
Hertz & James S. Liebman, Federal Habeas Corpus Practice
and Procedure § 41.3b (5th ed. 2005).
motion to vacate, Gomez argues that the court should grant
her motion because she was a minor participant in the
conspiracy, and thus, is entitled to a minor participant
reduction under Amendment 794 to the Sentencing Guidelines.
See ECF No. 40. The court disagrees.
November 2015, the United States Sentencing Commission
modified the commentary to sentencing guideline § 3B1.2
through Amendment 794. See U.S.S.G. App. C, Amend.
794. Through that amendment, a criminal defendant may receive
a reduction to his or her guideline calculation, and thus to
the applicable guideline sentencing range, if that defendant
was a minimal participant in a criminal conspiracy. Such a
reduction is made at the time of sentencing and is solely
within the discretion of the sentencing court.
motion, Gomez contends that she was a minimal participant in
the underlying criminal conspiracy, and as such, would have
been entitled to receive a reduction to her guideline
calculation range had Amendment 794 been in effect at the
time of her sentencing. See ECF No. 40. However,
Amendment 794 was not made retroactive by the USSC in cases,
like Gomez's, on collateral review. See, e.g., United
States v. Burlingame, 2016 U.S. Dist. LEXIS 158288, *5
(E.D. Mich. 2016) (holding that Amendment 794 has not been
held to be retroactive on collateral appeal);
Aguas-Landaverde v. United States, 2016 U.S. Dist.
LEXIS 13-525, *2 (S.D. Ohio 2016); United States v.
Tapia, 2016 U.S. Dist. LEXIS 123706, *1 (M.D. Fla.
2016). Accordingly, the court shall deny her motion to
vacate, set aside, or correct her sentence pursuant to 28
Certificate of Appealability
the Antiterrorism and Effective Death Penalty Act of 1996
(AAEDPA"), "an appeal may not be taken to the court
of appeals from . . . the final order in a proceeding under
section 2255" unless a district court issues a
certificate of appealability (ACOA") based on "a
substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(1)(B).
the court finds that Gomez has not shown a denial of a
constitutional right in her motion. In denying his motion,
the court notes that Gomez has failed to raise a meritorious
challenge to her sentence based upon the subsequent
sentencing guideline amendment, Amendment 794.
Supra, Section II. As such, the court finds that
Gomez has failed to demonstrate that reasonable jurists would
find the court's assessment of her claims debatable or
wrong. See Allen v. Ornoski, 435 F.3d 946, 950-951
(9th Cir. 2006). Therefore, the court shall deny Gomez a
certificate of appealability as to her motion to vacate
THEREFORE ORDERED that defendant's motion to vacate, set
aside, or correct her sentence pursuant to 28 ...