United States District Court, E.D. Oklahoma
OPINION AND ORDER
H. Payne United States District Judge
the Court is Petitioner/Defendant Shawn Ashley
Deatherage's (“Defendant”) motion to vacate,
set aside, or correct sentence by a person in federal custody
brought pursuant to 28 U.S.C. § 2255 (Dkt. 1; Dkt. 249
in Case No. 15-CR-68-1). The Government has filed a sealed
Response in Opposition (Dkt. 6). Defendant seeks relief based
on Amendment 794 to the United States Sentencing Guidelines
(“USSG”). For the reasons cited herein,
Defendant's motion pursuant to § 2255 is
November 12, 2015, pursuant to a written plea agreement,
Defendant pleaded guilty to the charge of Drug Conspiracy in
violation of 21 U.S.C. §§ 846, 841(a)(1) and
841(b)(1)(A) (Count One). (Dkt. 110 in Case No. 15-CR-68-1
(Minutes of Change of Plea Hearing)). At that time, the
Government agreed to dismiss Counts Two through Five against
Defendant at sentencing. (Id.).
advance of sentencing, the United States Probation Office
prepared a Presentence Investigation Report
(“PSR”) as to Defendant on January 29, 2016,
based on the 2015 USSG Manual. The PSR did not recommend a
“minor participant” reduction, which grants a two
point reduction to defendants who are found to be
“substantially less culpable than the average
participant in the criminal activity.” USSG §
3B1.2, comment n. 3(A) (2015). (See PSR ¶ 38
(recommending no adjustment for Defendant's role in the
offense)). Neither the Government nor the Defendant objected
to the PSR.
9, 2016, the Court sentenced Defendant to 120 months
imprisonment on Count One, and the Government dismissed the
remaining counts. (Dkt. 239 in Case No. 15-CR-68-1
(Judgment)). Defendant did not directly appeal her conviction
or sentence. Nonetheless, Defendant filed this § 2255
motion on October 17, 2016. In the motion, Defendant argues
she is entitled to a “minor role” reduction based
on Amendment 794 to the USSG and the Ninth Circuit's
interpretation of that Amendment in United States v.
Quintero-Levya, 823 F.3d 519 (9th Cir. 2016). Defendant
argues she deserves a reduction for her minimal
participation, because she was not determined to be a leader,
organizer, or manager. (Dkt. 1, at 4).
federal prisoner may obtain relief under § 2255 only if
her sentence (1) was imposed in violation of the Constitution
or federal laws, (2) was imposed by a court without
jurisdiction to do so, (3) was in excess of the maximum
permitted by the law, or (4) is otherwise subject to attack.
28 U.S.C. § 2255(a). Here, Defendant does not raise any
possible grounds for reexamination of her sentence under 28
U.S.C. § 2255.
794 is not retroactive in § 2255 collateral proceedings
under the sentencing guidelines, federal statutes, or Tenth
Circuit precedent. See United States v. Harrison,
2016 WL 6310768, at *2 (N.D. Okla. Oct. 27, 2016). Amendment
794 amended the commentary to U.S.S.G. § 3B1.2, the
“mitigating role” guideline. Section 1B1.10(d) of
the USSG lists all amendments eligible for retroactive
effect. See USSG § 1B1.10(a). Amendment 794 is
not listed among those amendments that can subsequently lower
an applicable guideline range. Because Amendment 794 is not
listed, a retroactive sentence reduction is not authorized.
See United States v. Fouse, 2016 WL 4516066, at *2
(N.D. Okla. Aug. 29, 2016).
seeks to reopen her sentencing pursuant to United States
v. Quintero-Levya, 823 F.3d 519 (9th Cir. 2016). In
Quintero-Levya, the Ninth Circuit held that
Amendment 794 “applies retroactively in direct
appeals.” 823 F.3d at 521. The Ninth Circuit expressly
declined to examine whether a defendant who has exhausted his
or her direct appeal can move to reopen sentencing
proceedings under Amendment 794. Id. at 521 n.1.
Defendant's § 2255 motion seeks collateral review of
her sentence; it is not a direct appeal. Defendant did not
appeal her sentence. Even if it were applicable to
Defendant's situation, Quintero-Levya was
decided in another jurisdiction and therefore has no
controlling effect on this Court. Accordingly, the ruling in
Quintero-Levya does not apply to Defendant's
request for collateral review of her sentence under §
the Court notes that Amendment 794 took effect on November 1,
2015. USSG app. C suppl., amend. 794 at 118 (2015).
Defendant's final PSR was prepared on January 29, 2016,
and Defendant was sentenced on June 9, 2016. The 2015
Guidelines Manual, which incorporated Amendment 794, was used
to determine Defendant's sentence, including her role in
the offense. (See PSR ¶ 33). Defendant did not
object to the PSR. Therefore, Defendant already received the
benefit of the amended commentary accompanying the
“minor participant” guideline. Defendant's
motion is denied.
Court is required by § 2255 to hold an evidentiary
hearing “[u]nless the motion and the files and records
of the case conclusively show that the prisoner is entitled
to no relief.” 28 U.S.C. § 2255(b). See also
United States v. Marr, 856 F.2d 1471, 1472 (10th Cir.
1988). With this standard as a guide, the Court has
thoroughly reviewed the pleadings, files, and record in this
case, and from that review, the Court finds the record
conclusively shows that Defendant is entitled to no relief on
her claims and an evidentiary hearing is unnecessary.