United States District Court, D. New Mexico
Roybal FCI-La Tuna Anthony, New Mexico Defendant/Movant Pro
Tierney Acting United States Attorney Cynthia L. Weisman Joel
R. Meyers Shana B. Long Stephen R. Kotz Assistant United
States Attorneys Albuquerque, New Mexico Attorneys for the
Respondent/Plaintiff United States of America
MEMORANDUM OPINION AND ORDER OF DISMISSAL
MATTER comes before the Court, under rule 4(b) of the Rules
Governing Section 2255 Proceedings, on the Movant's
Motion Pursuant to 28 U.S.C. Section 2255 in Light of
Retroactivity of Quintero-Leyva, 2016 WL 2865713 (9th Cir.
2016), filed September 23, 2016 (CIV Doc. 1; CR Doc.
1141)(“§ 2255 Motion”). The Court determines
that Movant George Roybal is not entitled to relief and will
dismiss the Motion as rule 4(b) provides.
December 12, 2012, Roybal and several co-Defendants were
charged under a multi-count Indictment. See
Indictment, filed December 12, 2012 (CR Doc. 2). Roybal was
charged with: (i) Conspiracy in violation of 21 U.S.C.
§§ 841(a)(1) & (b)(1)(B) (Count 1); (ii)
Distribution of Cocaine in violation of 21 U.S.C.
§§ 841(a)(1) & (b)(1)(B) (Count 5); (iii)
Distribution of Marijuana in violation of 21 U.S.C.
§§ 841(a)(1) & (b)(1)(D) (Count 15); (iv)
Conspiracy to Launder Money in violation of 18 U.S.C. §
1956(h) (Count 37); and (v) Use of a Telephone to Facilitate
a Drug Trafficking Offense in violation of 21 U.S.C. §
843(b) (Counts 42 and 43). See Indictment at 1. In a
Superseding Indictment and a Second Superseding Indictment,
Roybal was charged with an additional count of Witness
Tampering, in violation of 18 U.S.C. § 1512(a)(1)(A)
(Count 62). See Superseding Indictment at 1, filed
February 12, 2014 (CR Doc. 426); Second Superseding
Indictment at 1, filed September 9, 2014 (CR Doc. 626).
Roybal entered into a rule 11(c)(1)(C) Plea Agreement, filed
January 14, 2015 (CR Doc. 735), and pled guilty to Count 1
(Conspiracy to Distribute Cocaine) and Count 61 (Witness
Tampering). See Plea Agreement at 4-5. On November
17, 2015, the Court sentenced him to 97 months of
incarceration with three years of supervised release.
See Judgment, filed November 17, 2015 (CR Doc.
1070). Presumably based on the Plea Agreement's appellate
review waiver, Roybal did not appeal his sentence.
See Plea Agreement at 9.
entry of the Judgment, Roybal filed a Motion to Reduce
Sentence under 28 U.S.C. § 3582. See RE: Two
Point Reduction, filed May 16, 2016 (CR Doc.
1130)(“Reduction Motion”). In his Reduction
Motion, Roybal seeks a 2-level reduction based on retroactive
application of U.S.S.G. Amendment 782. See Reduction
Motion at 1-3. The Reduction Motion is currently pending
before the Court. Roybal then filed his pro se § 2255
Motion. In his § 2255 Motion, Roybal argues that he is
entitled to a sentence reduction based on retroactive
application of Amendment 794 to Section 3B1.2 of the United
States Sentencing Guidelines. See § 2255 Motion
LAW ON SECTION 2255 COLLATERAL REVIEW AND RETROACTIVE
APPLICATION OF SENTENCING GUIDELINE AMENDMENTS
seeks collateral review of his sentence under 28 U.S.C.
§ 2255. Section 2255 provides:
A prisoner in custody under a 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
28 U.S.C. § 2255(a). The defendant is to file the
initial motion under § 2255 with the court that imposed
the sentence, for that court's consideration. See In
re Hanserd, 123 F.3d 922, 925 (6th Cir. 1997)(discussing
differences between § 2255 motions and traditional
habeas petitions); Browning v. United States, 241
F.3d 1262, 1264 (10th Cir. 2001). Rule 4(b) of the Rules
Governing Section 2255 Proceedings states:
The judge who receives the motion must promptly examine it.
If 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 and
direct the clerk to notify the moving party.
Under rule 4 of the Rules Governing Section 2255 cases, the
Court is under an obligation to review a § 2255 motion,
and to summarily dismiss the motion if the filings and the
record in the movant's underling criminal proceeding
establish that the movant is clearly not eligible for relief.
4(b) of the Rules Governing Section 2255 Proceedings.
grounds his request for § 2255 relief on Amendment 794
to the Sentencing Guidelines. Arguments grounded on
amendments to the Guidelines are ordinarily brought under 18
U.S.C. § 3852 and not as § 2255 claims. See
United States v. Jones, 143 F.Appx. 526, 527 (4th Cir.
2005)(holding it error to construe the petitioners'
reduction-of-sentence motions based on retroactive
application of Guidelines Amendment as § 2255 motions);
Ono v. Pontesso, 1998 WL 757068, at *1 (9th Cir.
1998)(holding that request for a modification of a sentence
pursuant to a Guidelines amendment “is most properly
brought as a motion under 18 U.S.C. § 3582”);
United States v. Mines, 2015 WL 1349648, at *1 (E.D.
Va. 2015)(where petitioner “seeks a reduction in
sentence pursuant to any amendment to the United States
Sentencing Guidelines, he must file a separate motion for
reduction of sentence pursuant to 18 U.S.C. §
has a § 3582 Motion to Reduce Sentence pending based on
a different amendment to the Sentencing Guidelines.
See Reduction Motion at 1-3. Rather than amending
his Reduction Motion, Roybal has chosen to bring this
proceeding, asserting retroactive application of Amendment
794 under § 2255. See § 2255 Motion at 1.
Under the United States Court of Appeals for the Tenth
Circuit's precedent, only those amendments that are
explicitly enumerated in § 3582(c)(2) are deemed to be
retroactive. See United States Sentencing Guidelines
Manual § 1B1.10(a)(2); United States v. Avila,
997 F.2d 767, 768 (10th Cir. 1993). Amendment 794 is not such
an enumerated amendment. See United States v.
Harrison, 2016 WL 6310768, *2 (N.D. Okla.
2016)(“Amendment 794 is not retroactive under the
sentencing guidelines, federal statutes, or Tenth Circuit
precedent.”); United States v. Fouse, 2016 WL