United States District Court, D. Nevada
before the court is petitioner Jesus Guadalupe Felix
Burgos's pro se motion to vacate, set aside, or
correct sentence pursuant to 28 U.S.C § 2255. (ECF No.
417). The government has filed a timely response. (ECF No.
419). Petitioner has not replied, and the period to do so has
February 8, 2011, a grand jury returned a six-count
indictment against multiple defendants, and charged
petitioner on counts 1, 5 and 6. (ECF No. 1). On February 7,
2012, petitioner pleaded guilty to count 1 of the indictment.
(ECF Nos. 175, 176).
29, 2012, the court sentenced petitioner to 135 months,
followed by five years of supervised release. (ECF Nos. 236,
238). On June 26, 2012, petitioner appealed (ECF No. 248).
The court of appeals affirmed the judgment on September 5,
2013. (ECF No. 324).
16, 2015, the court reduced petitioner's sentence from
135 months to 120 months, pursuant to an amendment to the
mandatory minimum sentencing provisions of 18 U.S.C §
3582(c). (ECF No. 378).
instant motion, petitioner moves to vacate his sentencing and
remand for resentencing pursuant to the minor participant
provision of Amendment 794 to the United States Sentencing
Guidelines (“USSG”) and United States v.
Quintero-Leyva, 823 F.3d 519 (9th Cir. 2016). (ECF No.
prisoners “may move . . . to vacate, set aside or
correct [their] sentence” if the court imposed the
sentence “in violation of the Constitution or laws of
the United States . . . .” 28 U.S.C. § 2255(a).
Section 2255 relief should be granted only where “a
fundamental defect” caused “a complete
miscarriage of justice.” Davis v. United
States, 417 U.S. 333, 345 (1974); see also Hill v.
United States, 368 U.S. 424, 428 (1962).
on § 2255 motions are based on the fact that the movant
“already has had a fair opportunity to present his
federal claims to a federal forum, ” whether or not he
took advantage of the opportunity. United States v.
Frady, 456 U.S. 152, 164 (1982). Section 2255 “is
not designed to provide criminal defendants multiple
opportunities to challenge their sentence.” United
States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993).
instant motion, petitioner asks this court to vacate his
sentencing and remand for resentencing pursuant to the minor
participant provision of Amendment 794 to the USSG and
Quintero-Leyva, 823 F.3d at 524. (ECF No. 417).
Specifically, petitioner argues Quintero-Leyva
establishes that Amendment 794 is a “clarifying
amendment, ” and thus applies retroactively, entitling
a petitioner to relief. Id. at 15.
court disagrees. Petitioner has brought his claim under a 28
U.S.C § 2255 motion. According to the United States
Supreme Court, relief under § 2255 requires allegation
of a constitutional or jurisdictional error, a
“fundamental defect which inherently results in a
complete miscarriage of justice, ” or “an
omission inconsistent with the rudimentary demands of fair
procedure.” United States v. Timmreck, 441
U.S. 780, 783-84 (1979). Here, petitioner makes no such
assertions and, thus, has failed to show constitutional or
jurisdictional error, a complete miscarriage of justice, or
any omission inconsistent with the rudimentary demands of
fair procedure. Therefore, his claim falls outside of the
finite bases for relief for § 2255 motions, as explained
while § 2255 covers most post-conviction challenges, 18
U.S.C § 3582 allows for narrow circumstances where a
defendant may request a sentence modification. Liberally
construing petitioner's pro se filing, the court
will address his claim as if brought under § 3582.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(“a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers”); Estelle v.
Gamble, 429 U.S. 97, 106 (1976) (holding that pro
se documents are to be “liberally
modification under § 3582 is allowed only “in the
case of 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”
and the reduction in question “is consistent with
applicable policy statements issued by the Sentencing
Commission.” 18 U.S.C § 3582(c)(2). Further,
§ 1B1.10 of the Sentencing Guidelines clarifies that
sentence reduction under § 3582(c)(2) does not apply if
the amendment relied upon is not “an amendment listed
in subsection (d) [of § 1B1.10].” U.S.S.G §
1B1.10(a)(2). Amendment 794 is not incorporated within the