Opinion
Civil Action No. 1:16-cv-296 Criminal No. 1:14-cr-443-1
01-09-2017
TINA MARIE TREVINO, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Before the Court is the "Magistrate Judge's Amended Report and Recommendation" (Docket No. 9) in the above-captioned case. The Magistrate Judge's Amended Report and Recommendation (hereafter "Amended R&R") recommends that Tina Marie Trevino's "Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody" (Docket No. 1) be dismissed with prejudice because Trevino (hereafter "Petitioner") fails to state a cognizable § 2255 claim. Docket No. 9 at 1. For the reasons stated below, the Magistrate's Amended R&R (Docket No. 9) is ADOPTED and Petitioner's § 2255 motion (Docket No.1) is DISMISSED.
The Magistrate Judge filed the Amended R&R to correct a transcription error in the Original Report and Recommendation. Prior to the correction, the Petitioner filed her "Response Towards Recommendation of the Pending 28 U.S.C. § 2255" (Docket No. 8), objecting to the Original Report and Recommendation.
On January 3, 2017, Petitioner timely filed her objections to the Magistrate's Amended R&R. In Petitioner's "Response Towards Recommendation" (Docket No. 12), she argues that "given the involvement of the [Petitioner] in the criminal activity[,] the [Petitioner] feels she is entitled towards relief." Docket No. 12 at 2. The Court interprets this vague statement to incorporate Petitioner's "Response Towards Recommendation of the Pending 28 U.S.C. § 2255" (Docket No. 8), which argues that the Sentencing Court failed to apply a "minor role" reduction to her case and that Amendment 794 3B1.2 applies retroactively to cases on direct appeal. Docket No. 8 at 2.
First, Petitioner argues that she was not considered for a "minor role" reduction, as permitted by Amendment 794. Docket No. 8 at 2. The conviction record indicates otherwise. Petitioner's Presentence Report (hereafter "PSR") recommended that Petitioner be assessed a three-level enhancement for being a manager/supervisor in the criminal activity for which she was charged. United States of America v. Tina Marie Trevino, No. 4:14-cr-443-1, Docket No. 69 at 8. The Sentencing Court rejected the PSR's three-level enhancement. CR Docket No. 113. Thus, the Sentencing Court considered Petitioner's level of culpability and concluded that she was neither a manager nor a minor participant.
Hereafter Petitioner's criminal case docket entries will be referred to as "CR Docket No." --------
Furthermore, Petitioner's challenge to the Court's finding that she was an average participant does not give rise to a cognizable § 2255 claim. A court's technical application of the sentencing guidelines does not give rise to a cognizable § 2255 claim. United States v. Arias-Lopez, No. CA C-12-148, 2013 WL 628694, at *4 (S.D. Tex. Feb. 19, 2013); see also United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992) (per curium) ("A district court's technical application of the Guidelines does not give rise to a constitutional issue."). Thus, Petitioner's first argument fails.
Second, Petitioner argues that Amendment 794 applies retroactively to cases on direct appeal. Docket No. 8 at 2. Whether or not Amendment 794 applies on direct appeal is not relevant to Petitioner's case. Petitioner is collaterally challenging her conviction under 28 U.S.C. § 2255. Moreover, Petitioner was sentenced on March 3, 2016— several months after Amendment 794 took effect on November 1, 2015. Docket No. 1 at 1. Thus, Petitioner's second argument fails.
Therefore the Magistrate Judge's Amended R&R (Docket No. 9) is ADOPTED. It is further ORDERED, ADJUDGED, and DECREED that Petitioner's § 2255 motion (Docket No. 1) is DISMISSED with prejudice. A certificate of appealability shall not issue.
The Clerk is ORDERED to close this case.
Signed on this 9th day of January, 2017.
/s/_________
Rolando Olvera
United States District Judge