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United States v. Wells

United States District Court, N.D. Oklahoma

April 26, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
HAROLD WELLS, Defendant.

          OPINION AND ORDER

          JOHN E. DOWDELL UNITED STATES DISTRICT JUDGE

         Before 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).

         I. Background

         Wells, 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).

         On 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.[1] (Doc. 311).

         Mr. 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. § 2255.

         II. Analysis

         Because 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.

         A 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 final;
(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 governmental action;
(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. § 2255(f)(4).”); ...


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