United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL UNITED STATES DISTRICT JUDGE
the Court is Defendant's “Motion to Vacate, Set
Aside or Correct Sentence Pursuant to 28 U.S.C. §
2255(f)(4) Based on the ‘Minor Role'
Amendment” (Doc. 312).
a former police officer, was indicted on July 19, 2010 on
Counts 1 through 10 of an Indictment which charged that he
had conspired to violate the civil rights of a person,
conspired to possess and distribute and aided and abetted the
distribution of controlled substances, conspired to steal
more than $1, 000 of United States funds, and used a
communication facility to commit or facilitate the commission
of a drug felony. (See Doc. 2; see also
Doc. 242-1). The Judges of this District recused, and United
States District Judge Bruce D. Black was then assigned. (Doc.
19, 20, 21, 22). Following a jury trial, verdicts were
entered on June 10, 2011, finding Mr. Wells not guilty on
five counts and guilty on the remaining five counts of the
Indictment. (Doc. 242-1). Judge Black subsequently granted
Mr. Wells's motion for acquittal as to one of the counts,
which charged that he had possessed a firearm during a drug
trafficking crime, because there was no evidence that he
carried his service weapon “in relation to” the
drug conspiracy of which he was convicted. (See Doc.
271 at 5-9; Doc. 274).
December 8, 2011, Mr. Wells was sentenced to a total term of
120 months, on Counts 7, 8, 9, and 10 of the Indictment. The
term consisted of 120 months as to Count 7, 60 months as to
Count 8, 120 months as to Count 9, and 48 months as to Count
10, each sentence to run concurrently with the others. (Doc.
281 at 2). On May 5, 2015, Mr. Wells filed a motion for
reduction of sentence under Fed. R. Crim. P. 35(b)(2)(C) or
an alternative motion for writ of audita querela. (Doc. 306).
This Court dismissed Mr. Wells's motion on December 13,
2017, concluding that Mr. Wells was ineligible for a sentence
reduction and that there was no basis for a writ of audita
querela. (Doc. 311).
Wells filed the present motion on April 20, 2018. He argues
that Amendment 794 to the Sentencing Guidelines, which went
into effect in November 2015, should be applied retroactively
to vacate, set aside, or correct his sentence under 28 U.S.C.
Mr. Wells proceeds pro se, the Court construes his
filing liberally. See United States v. Pinson, 584
F.3d 972, 975 (10th Cir. 2009); Odgen v. San Juan
Cty., 32 F.3d 452, 455 (10th Cir. 1994). Even so, the
Court finds that this § 2255 motion must be denied.
one-year period of limitation applies to motions under §
2255. This limitation period runs from the latest of:
(1) the date on which the judgment of conviction becomes
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2255(f)(1)-(4). Mr. Wells asserts that
§ 2255(f)(4) applies here, yet he points to no new facts
that were not available to him at his sentencing on December
6, 2011. Instead, he seems to suggest that the promulgation
of Amendment 794 serves as a basis for invoking §
2255(f)(4). This argument has been rejected by courts across
the country. SeeUnited States v. Harrison,
680 Fed.Appx. 678, 680-81 (10th Cir. 2017) (unpublished);
United States v. Bazaldua, Nos. 06-CR-0100 (JNE/JSM)
& 16-CV-2479 (JNE), 2016 WL 5858634, at *1 (D. Minn. Oct.
5, 2016) (unpublished) (“Amendment 794 to the
Sentencing Guidelines therefore is not a basis for
[defendant] to invoke § 2255(f)(4).”); United
Statesv. Barnes, No. 3:14CR121, 2017 WL
4324701, at *3 (E.D. Va. Sept. 28, 2017) (unpublished)
(“Amendment 794 cannot constitute a new
‘fact' for purposes of 28 U.S.C. §