United States District Court, E.D. Virginia, Alexandria Division
M. HILTON UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Petitioner Jessica
Hernandez's ("Petitioner") Motions to Vacate,
Set Aside, or Correct Sentence under 28 U.S.C. § 2255.
participated in a drug conspiracy that involved the
distribution of large quantities of cocaine in Virginia and
elsewhere. Between July 2014 and June 2015, Petitioner
assisted her husband, the conspiracy leader, in the packaging
and selling of cocaine. Petitioner purchased cutting agents,
which increased the amount of cocaine available for
distribution. She also met customers and exchanged cocaine
for money. One on occasion, Petitioner accompanied her
husband on a trip to Colorado to purchase one kilogram of
cocaine, and successfully hid that cocaine in her shirt
during an encounter with law enforcement. Petitioner also had
access to a safe in the home she and her husband shared that
contained a firearm, drugs, and drug proceeds. A search
warrant executed on the couple's two homes revealed the
following: weapons; ammunition; $26, 000 in cash; 215 grams
of cocaine; multiple cellular phones; and a hydraulic press
used for creating kilogram bricks of cocaine.
24, 2015, Petitioner was arrested for conspiracy to
distribute cocaine. That same day, Petitioner appeared before
a judge and was appointed counsel. On July 13, 2015,
Petitioner filed a motion requesting that attorney Abu
Kalokoh ("Attorney Kalokoh" or "former
counsel") be substituted as counsel. That motion was
granted, and Attorney Kalokoh was substituted as counsel of
August 19, 2015, Petitioner pleaded guilty, pursuant to a
written plea agreement, to a one-count criminal information
charging her with conspiracy to distribute five kilograms or
more of cocaine in violation of 21 U.S.C. §§
841(a)(1) and 846. In exchange, the government agreed to
recommend a downward sentencing adjustment for acceptance of
responsibility. As part of the signed plea agreement,
Petitioner affirmed, among other things, that she read and
reviewed the plea agreement in its entirety with her
attorney, that she was satisfied with her attorney's
work, and that she was waiving her right to appeal.
plea hearing held the same day, the judge conducted a full
Rule 11 plea colloquy. During the plea colloquy, and while
under oath, Petitioner, among other things, indicated that
she was satisfied with Attorney Kalokoh's representation,
that she was pleading guilty by her own volition, and that
she reviewed the plea agreement with Attorney Kalokoh. The
judge then continued proceedings for sentencing to November
on October 9, 2015, the probation office submitted the PSR.
In the PSR, Petitioner received no adjustment for having a
minor role in the criminal activity and received no relief
from the mandatory minimum sentence of 120 months of
imprisonment under the safety valve provision due to her
possession of a firearm in connection with the offense and
her lack of candor with the government. Petitioner, however,
did receive a downward adjustment for her acceptance of
responsibility. The PSR's calculated guidelines range was
the statutory mandatory minimum sentence of 120 months of
November 6, 2016, the government filed its position on
sentencing and recommended that the mandatory minimum
sentence be imposed. On November 11, 2015, Attorney Kalokoh
submitted two objections to the PSR: the first disputing that
Petitioner "possessed" a firearm and the second
disputing that Petitioner was less than forthcoming with
information. Attorney Kalokoh also filed a position on
sentencing, arguing that Petitioner should receive relief
from the mandatory minimum sentence on account of the safety
valve provision. In support thereof, Attorney Kalokoh
submitted several letters, a social worker's report, and
several certificates attesting to Petitioner's
educational pursuits, sobriety, good nature, and faith.
November 13, 2015, Petitioner appeared before this Court for
sentencing. At the hearing, Attorney Kalokoh again raised his
objections to the PSR and reiterated his position as to
Petitioner's eligibility for the safety valve provision.
The Court considered but ultimately rejected Attorney
Kalokoh's argument and sentenced Petitioner to the
statutory mandatory minimum sentence of 120 months of
imprisonment. Judgment was entered on November 24, 2015.
September 30, 2016, Petitioner filed a pro se § 2255
motion, arguing that she was entitled to the retroactive
application of Amendment 794 to the United States Sentencing
Guidelines ("USSG"). On November 15, 2016,
Petitioner filed another pro se § 2255 motion, arguing
that she received ineffective assistance of counsel. On
December 6, 2016, Petitioner filed a memorandum of law in
support of her claims of ineffective assistance of counsel.
On December 20, 2016, Petitioner filed a corrected memorandum
of law in support of her claims of ineffective assistance.
prisoner in federal custody may move to vacate, set aside, or
correct her sentence under 28 U.S.C. § 2255. To prevail
under § 2255, a petitioner has the burden of proving by
a preponderance of the evidence that her sentence was imposed
in violation of the Constitution or laws of the United
States, that the Court lacked jurisdiction to impose the
sentence, that the sentence exceeded the maximum authorized
by law, or that the sentence is otherwise subject to
collateral attack. 28 U.S.C. § 2255(a), (f); see
also Miller v. United States, 261 F.2d 546, 547 (4th
Cir. 1958). In deciding a § 2255 motion, the Court may
summarily dismiss the motion without holding an evidentiary
hearing when motion and records conclusively show that the
petitioner is not entitled to relief. United States v.
Magini, 973 F.2d 261, 264 (4th Cir. 1992).
first § 2255 motion, Petitioner asserts that she is
entitled to the retroactive application of Amendment 794 to
the USSG. She contends that under the Amendment, her base
offense level as calculated under the USSG should be reduced
because she was a minor participant in the drug conspiracy.
This claim fails. Amendment 794, which went into effect on
November 1, 2015, amended the commentary to USSG §
3B1.2, dealing with a defendant's role in the offense.
See USSG App. C, Amend. 794, at 116 (Supp. Nov. 1,
2015) . Amendment 7 94 introduced a list of non-exhaustive
factors for a sentencing court to consider when determining
whether or not to apply a mitigating role adjustment.
United States v. Gomez-Valle, 828 F.3d 324, 327 (5th
Cir. 2016). The Amendment was intended to clarify §
3B1.2, but it was not a substantive change. Id.
Petitioner cannot claim retroactive application of Amendment
794. As noted above, Amendment 794 went into effect on
November 1, 2015, approximately two weeks prior to
Petitioner's sentencing on November 13, 2015. Thus, on
the date of Petitioner's sentencing, Amendment 794 was in
effect and any benefit she may have derived from it was
available to her. See Dorsey v. United States, 132
S.Ct. 2321, 2332 (2012) (requiring a sentencing judge to use
the version of "the Guidelines Manual in effect on the
date that the defendant is sentenced") (quoting USSG
§ 1B1.11) . Because Amendment 7 94 was in effect at the
time of sentencing, Petitioner fails to state a claim for
§ 2255 relief on this basis. See Raines v. United
States, 423 F.2d 526, 529 (4th Cir. 1970) (stating
"[w]here the files and records conclusively show that
the prisoner is entitled to no relief, summary dismissal is
arguendo Petitioner's § 2255 motion includes the
argument that the sentencing court did not properly apply
Amendment 7 94, such an argument is equally unavailing. A
§ 2255 motion is not the proper vehicle to ask the Court
to apply the factors set forth in Amendment 7 94 in the hopes
of obtaining a sentencing reduction. See United States v.
Addonizio, 442 U.S. 178, 185 (1979) (noting the relief
contemplated by § 2255 "does not encompass all
claimed errors in conviction and sentencing");
United States v. Newbold, 791 F.3d 4 55, 4 59 (4 th
Cir. 2015) (discussing the types of errors that can be
corrected under § 2255 and noting that "ordinary
misapplication of the guidelines"' is not such an
error) (citation and internal quotation marks omitted);
United States v. ...