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Diaz v. United States

United States District Court, W.D. Tennessee, Western Division

October 27, 2016

OSCAR DIAZ, Movant,
v.
UNITED STATES OF AMERICA, Respondent. Cr. No. 2:13-cr-20166-01-STA

          ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255, DENYING A CERTIFICATE OF APPEALABILITY, CERTIFYING THAT AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

          S. THOMAS ANDERSON UNITED STATES DISTRICT JUDGE

         Before the Court is the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“§ 2255 Motion”) filed by Movant, Oscar Diaz, Bureau of Prisons register number 25915-076, an inmate at the Federal Correctional Institution Medium in Yazoo City, Mississippi. (§ 2255 Mot., ECF No. 1.) For the reasons stated below, the Court DENIES the § 2255 Motion.

         I. PROCEDURAL HISTORY

         A. Criminal Case Number 2:13-cr-20166

         On May 14, 2013, a federal grand jury returned a single-count indictment charging that, on or about May 10, 2013, Diaz and Lazaro Balderas attempted to possess with the intent to distribute five kilograms or more of a mixture and substance containing a detectable amount of cocaine, in violation of 21 U.S.C. § 846. (Indictment, ECF No. 1.) According to the presentence report (“PSR”), the case arose when fifteen kilograms of cocaine were discovered in a car stopped at a border checkpoint in Luna County, New Mexico. (PSR ¶ 5.) The driver advised the border agents that she was delivering the cocaine to a person in Memphis, Tennessee, who was later discovered to be Diaz. (Id. ¶¶ 6-11.) Balderas was Diaz's “right hand man.” (Id. ¶ 12.)

         Pursuant to a written plea agreement, Diaz appeared before this Judge on September 26, 2013, to plead guilty to the sole count of the indictment. (Min. Entry, ECF No. 31; Plea Agreement, ECF No. 32.) At a hearing on January 13, 2014, the Court sentenced Diaz to a term of imprisonment of seventy-two months, to be followed by a five-year period of supervised release. (Min. Entry, id., ECF No. 40.)[1] Judgment was entered on January 14, 2014. (J. in a Criminal Case, ECF No. 41 (sealed).) Diaz did not take a direct appeal.

         On December 29, 2014, Diaz filed a pro se motion seeking a reduction in his sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 782 to the sentencing guidelines. (Mot. for Reduction of Sentence, ECF No. 43.) On February 27, 2015, the Federal Defender filed a similar motion on behalf of Diaz. (Def.'s Consent Mot. to Reduce Sentence, ECF No. 47.) On February 27, 2015, the Court granted the motions and reduced Diaz's sentence to fifty-nine months. (Order Regarding Mot. for Sentence Reduction Pursuant to 18 U.S.C. § 3582(c)(2), ECF No. 48 (sealed).)

         B. Civil Case Number 2:16-cv-02804

         On October 6, 2016, Diaz filed his pro se § 2255 Motion, accompanied by a legal memorandum. (§ 2255 Mot., ECF No. 1; Mem. of Law in Supp. of § 2255 Mot., ECF No. 1-1.) The sole issue presented in the § 2255 Motion is whether,

PURSUANT TO THE NEW AMENDMENT 794 TO USSG § 3B1.1, MOVANT'S SENTENCE IS ENTITLED TO RELIEF BASED ON A RETROACTIVE AMENDED § 3B1.2 THAT A DEFENDANT WHO DOES NOT HAVE A PROPRIETARY INTEREST IN THE CRIMINAL ACTIVITY AND WHO IS SIMPLY BEING PAID TO PERFORM CERTAIN TASKS, SHOULD BE CONSIDERED FOR THE REDUCTION, AND THE FACT THAT A DEFENDANT PERFORMS AN ESSENTIAL OR INDISPENSABLE ROLE IN THE CRIMINAL ACTIVITY IS NOT DETERMINATIVE[.]

(§ 2255 Mot. at PageID 4, ECF No. 1; see also Mem. of Law in Supp. of § 2255 Mot. at 2-4, ECF No. 1-1.)

         II. LEGAL STANDARDS

         Pursuant to 28 U.S.C. § 2255(a),

[a] prisoner in custody under 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 ...

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