Opinion
CASE NO. 8:12-cr-306-T-33MAP
01-05-2017
UNITED STATES OF AMERICA v. HERIBERTO DE LA CRUZ
REPORT AND RECOMMENDATION
The Defendant seeks in forma pauperis status and a certificate of appealability so he can appeal the district judge's denial of his 28 U.S.C. 2255(f)(3) motion asking for a retroactive minor-role reduction under U.S.S.G. § 3B1.2 grounded on a post-sentencing clarifying amendment (Amendment 794). See docs. 158, 159, 160, 162. Having considered the matter, I recommend both motions (docs. 160, 162) be denied. Clarifying amendments are non-constitutional gloss for which collateral relief is unavailable. See 28 U.S.C. § 2253(c)(2) (collateral-relief applicant must make "substantial showing of the denial of a constitutional right"); Burke v. United States, 152 F.3d 1329, 1332 (11th Cir. 1998). Amendment 794 is just that. United States v. Cruickshank, 837 F.3d 1182, 1194 (11th Cir. 2016) ("Amendment 794 merely clarified the factors to consider for a minor-role adjustment, and did not substantively change § 31B.2 (sic.)").
Although doc. 160 is styled as a notice of appeal, I read the document to also move for a certificate of appealability. --------
IT IS SO REPORTED AND RECOMMENDED at Tampa, Florida on January 5, 2017.
/s/_________
MARK A. PIZZO
UNITED STATES MAGISTRATE JUDGE
NOTICE TO PARTIES
A party has fourteen days from this date to file written objections to the Report and Recommendation's factual findings and legal conclusions. A party's failure to file written objections waives that party's right to challenge on appeal any unobjected-to factual finding or legal conclusion the district judge adopts from the Report and Recommendation. See 11th Cir. R. 3-1.