United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
REIDINGER UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Petitioner's
Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody [Doc. 1]. For
the reasons that follow, the Court dismisses the petition.
February 22, 2012, the Petitioner pleaded guilty without a
plea agreement to one count of transportation of child
pornography, and aiding and abetting the same, in violation
of 18 U.S.C. §§ 2252(a)(1), 2252(b) and 18 U.S.C.
§ 2, and one count of possession of child pornography in
violation of 18 U.S.C. §§ 2252(a)(4)(B) and (b). A
Presentence Report (“PSR”) was prepared in
advance of the Petitioner's sentencing. In the PSR, the
probation officer recommended an advisory Guideline range of
210 to 240 months. On September 18, 2013, this Court
sentenced Petitioner to a term of 120 months'
imprisonment. [Crim. Case No. 1:11-cr-00096-MR-DLH-1
(“CR”), Doc. 23: Judgment]. An Amended Judgment
was entered on November 16, 2013, to address the issue of
restitution. [CR Doc. 27: Amended Judgment]. Petitioner did
placed the instant motion to vacate in the prison mailing
system on April 17, 2017, and it was docketed in this Court
on April 21, 2017. [Doc. 1]. In his motion, Petitioner seeks
sentencing relief pursuant to Amendment 801 to the United
States Sentencing Guidelines, which became effective on
November 1, 2016. [Id.].
to Rule 4(b) of the Rules Governing Section 2255 Proceedings,
sentencing courts are directed to promptly examine motions to
vacate, along with “any attached exhibits and the
record of prior proceedings” in order to determine
whether a petitioner is entitled to any relief. After having
considered the record in this matter, the Court finds that no
response is necessary from the United States. Further, the
Court finds that this matter can be resolved without an
evidentiary hearing. See Raines v. United States,
423 F.2d 526, 529 (4th Cir. 1970).
is not entitled to relief under Section 2255. Here, the claim
Petitioner purports to raise is in substance one for
sentencing relief under 18 U.S.C. § 3852, based on a
retroactive application of an amendment to the sentencing
guidelines. Petitioner must seek such relief on this claim,
if at all, by filing a motion in his criminal case. See
United States v. Jones, 143 F. App'x 526, 527 (4th
Cir. 2005) (holding that the district court erred in
construing the petitioners' motions under 18 U.S.C.
§ 3582(c)(2) for reductions in sentence based on
retroactive application of Amendment 591 as Section 2255
motions); Ono v. Pontesso, No. 98-15124, 1998 WL
757068, at *1 (9th Cir. Oct. 26, 1998) (noting that a request
for a modification of a sentence pursuant to an Amendment to
the Sentencing Guidelines “is most properly brought as
a motion under 18 U.S.C. § 3582”); see also
United States v. Gilmer, No. 5:00-cr-30053, 2017 WL
4230510, at *3 (W.D. Va. Sept. 22, 2017) (stating that
“a motion for a sentence reduction based on a
subsequent change in the Guidelines should be filed under 18
U.S.C. § 3582); Graham v. United States, No.
4:14-cr-85-RBH-17, 2017 WL 3706222, at *1 (D.S.C. Aug. 28,
2017) (“A motion for sentence reduction based on a
Guidelines amendment should be filed under 18 U.S.C. §
3582(c)(2), not 28 U.S.C. § 2255.”); Boulware
v. United States, 1:08-cr-00082-MR-1, 2016 WL 6986708
(W.D. N.C. Nov. 28, 2016) (stating that a petitioner must
seek relief based on a retroactive amendment to the
sentencing guidelines under § 3852, if at all);
United States v. Mines, No. 3:09-cr-106-HEH, 2015 WL
1349648, at *1 (E.D. Va. Mar. 4, 2015) (stating that, to the
extent that the petitioner “seeks a reduction in
sentence pursuant to any amendment to the United States
Sentencing Guidelines, he must file a separate motion for
reduction of sentence pursuant to 18 U.S.C. §
3582”). Thus, the Court will dismiss this action
without prejudice to allow Petitioner to bring a motion for
reduction of sentence in his underlying criminal action.
reasons stated herein, the Court will dismiss the motion to
vacate without prejudice to in order to allow Petitioner to
file a motion for a sentence reduction in his criminal
Court finds that Petitioner has not made a substantial
showing of a denial of a constitutional right. See
generally 28 U.S.C. § 2253(c)(2); see also
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003) (in
order to satisfy § 2253(c), a “petitioner must
demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims debatable
or wrong”) (citing Slack v. McDaniel, 529 U.S.
473, 484-85 (2000)). Petitioner has failed to demonstrate
both that this Court's dispositive procedural rulings are
debatable, and that the Motion to Vacate states a debatable
claim of the denial of a constitutional right. Slack v.
McDaniel, 529 U.S. 473, 484-85 (2000). As a result, the
Court declines to issue a certificate of appealability.
See Rule 11(a), Rules Governing Section 2255
Proceedings for the United States District Courts, 28 U.S.C.
IS, THEREFORE, ORDERED that Petitioner's Motion
to Vacate [Doc. 1] is DI ...