United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. SKAVDAHL, UNITED STATES DISTRICT JUDGE
matter is before the Court on defendant's Motion To
Vacate, Set Aside, Or Correct Sentence Under 28 U.S.C. §
2255 By U.S.S.G. Amendment § 3B1.2 (ECF No. 1971).
On October 14, 2016, the government filed a response. See
Government's Response To Defendant's Motion To
Vacate, Set Aside Or Correct Sentence Under 28 U.S.C. §
2255 By U.S.S.G. Amendment § 3B1.2 (ECF No. 1981).
Defendant did not file a reply. For reasons stated below, the
Court overrules defendant's motion.
October 3, 2012, a grand jury charged Riko Carter and 51
other defendants with conspiracy to manufacture, to possess
with intent to distribute and to distribute 280 grams or more
of cocaine base and to possess with intent to distribute and
to distribute five kilograms or more of a mixture and
substance containing cocaine. See Second Superseding
Indictment (ECF No. 402), Count 1. On May 28, 2013, Mr.
Carter pled guilty. See Plea Agreement (ECF No.
sentencing, the Court calculated a base offense level of 34
under U.S.S.G. § 2D1.1 based on a drug quantity of 2.75
kilograms of cocaine base. See Presentence Investigation
Report (ECF No. 1131), ¶¶ 96, 100-01 (base
offense level 34 for offense involving at least 840 grams but
less than 2.8 kilograms of cocaine base under 2013 version of
Guidelines). The Court added three levels under U.S.S.G.
§ 2D1.1(b)(1) because defendant possessed a dangerous
weapon during the offense. See id., ¶ 102. The
Court then subtracted three levels for defendant's
acceptance of responsibility. See id., ¶¶
108-09. Based on a criminal history category IV and a total
offense level of 33, defendant's advisory guideline range
was 188 to 235 months. See id., ¶ 152.
12, 2014, the undersigned judge, sitting by designation,
sentenced Mr. Carter to 188 months in prison. See
Judgment In A Criminal Case (ECF No. 1524) at 2. On June
8, 2015, in light of Amendment 782 to the Sentencing
Guidelines, which reduced by two levels defendant's base
offense level, the Honorable Kathryn H. Vratil reduced
defendant's sentence to 151 months. See Order
Regarding Motion For Sentence Reduction Pursuant To 18 U.S.C.
§ 3582(c)(2) (ECF No. 1785).
August 29, 2016, defendant filed a motion to vacate his
sentence under 28 U.S.C. § 2255. Defendant asserts that
under Amendment 794 to the Sentencing Guidelines, the Court
should apply a mitigating role adjustment under Section 3B1.2
and resentence him to a term of 120 months, the statutory
minimum term of imprisonment.
standard of review of Section 2255 petitions is quite
stringent. The Court presumes that the proceedings which led
to defendant's conviction were correct. See Klein v.
United States, 880 F.2d 250, 253 (10th Cir. 1989).
Procedural Bar - Timeliness Of Motion
government asserts that defendant's motion is untimely.
See Government's Response To Defendant's Motion
To Vacate, Set Aside Or Correct Sentence Under 28 U.S.C.
§ 2255 By U.S.S.G. Amendment § 3B1.2 (ECF No.
1981) at 3-5. Section 2255 provides a one-year period of
limitation which 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). Here, the Clerk entered judgment on
May 12, 2014. Defendant did not appeal the judgment of
conviction so it was final 14 days later on May 26, 2014.
United States v. Prows, 448 F.3d 1223, 1227-28 (10th
Cir. 2006) (if defendant does not file direct appeal,
conviction becomes final upon expiration of time in which to
take direct criminal appeal); Fed. R. App. P. 4(b) (defendant
must file appeal within 14 days of entry of judgment).
Therefore defendant had until May 26, 2015 to file a Section
filed his motion to vacate on August 29, 2016, more than one
year after the statutory deadline. Defendant apparently
attempts to invoke the tolling provision of Section
2255(f)(4). See (ECF No. 1971-1) at 4. Defendant
suggests that until Amendment 794 clarified application of
Section 3B1.2, he could not have known of his potential
argument that he qualified for a minor role reduction.
See Id. Amendment 794 supplements the Commentary to
provide additional guidance to district courts in determining
when a mitigating role adjustment applies under Section
3B1.2, but it did not provide an additional basis to reduce a
defendant's offense level. See Amendment 794,
Supp. to App. C (Nov. 1, 2015). Therefore defendant could
have raised his argument under Section 3B1.2 well before the
effective date of Amendment 794. In any event, the tolling
provision of Section 2255(f)(4) refers to discovery of
“facts” supporting a claim, “not a failure
to appreciate the legal significance of those facts.”
United States v. Collins, 364 F. App'x 496, 498
(10th Cir. 2010) (citing Marsh v. Soares, 223 F.3d
1217, 1220 (10th Cir. 2000)); see United States v.
Hines, 592 F. App'x 755, 755 (10th Cir. 2015)
(recent Supreme Court decision does not constitute newly
discovered fact under Section ...