United States District Court, D. Utah, Central Division
MEMORANDUM DECISION ADDRESSING 28 U.S.C. § 2255
SAM SENIOR JUDGE UNITED STATES DISTRICT COURT
Uscanga-Mora moves the court to vacate, set aside or correct
his sentence pursuant to 28 U.S.C. § 2255. On November
14, 2007, Mr. Uscanga-Mora was sentenced by this court to a
prison term of 210 months for distribution of 500 grams or
more “of a substance containing a detectable amount of
cocaine, ” a charge to which he pled guilty. ECF No.
104. However, Mr. Uscanga-Mora later filed a Motion to Reduce
Sentence, which was granted on August 14, 2015 and changed
his sentence to 168 months imprisonment. ECF No. 198.
case at hand, Mr. Uscanga-Mora (acting pro se) has again
filed a 28 U.S.C. § 2255 Motion to Reduce/Modify
Sentence. ECF No. 206. § 2255 grants federal prisoners
the right to “move the court which imposed [their]
sentence to vacate, set aside or correct [that]
sentence.” 28 U.S.C. § 2255. Mr. Uscanga-Mora
therefore argues under Amendment 794 to USSG § 3B1.2
that he was only a minimal or minor participant in the drug
distribution conspiracy for which he was imprisoned and that,
accordingly, his guideline range and thus his sentence should
have been reduced. ECF No. 206 at 1, 4-5. He also argues
ineffective assistance of counsel, and additionally asks that
he be given defense counsel to assist with his current claim.
Id. at 7, 3.
of a procedural failure with Mr. Uscanga-Mora's second
§ 2255 claim as well as a failure to qualify for the
reduction granted by Amendment 794, and because the statute
of limitations has run on the ineffective counsel claim, this
court orders that Mr. Uscanga-Mora's motion as well as
his request for counsel be denied.
Supreme Court has held that there is a one-year statute of
limitations for any § 2255 motion. See Dodd v.
United States, 545 U.S. 353, 357. However, Mr.
Uscanga-Mora's claim of ineffective counsel comes nine
years after his November 14, 2007 sentencing. ECF No. 209 at
4. The court therefore finds that the statute of limitations
has run on Mr. Uscanga-Mora's ineffective assistance of
the statute of limitations had not run on Mr.
Uscanga-Mora's ineffective counsel claim, it was also
procedurally defaulted, as Mr. Uscanga-Mora could have but
did not raise it on appeal. Id. In order to overcome
this, a movant must show that 1) there was a good cause for
his earlier failure to raise the claim and to fail to address
it now would be “actual prejudice, ” or 2) he is
innocent. Bousley v. United States, 523 U.S. 614,
622, 30 (1998); see also United States v. Frady, 456
U.S. 152, 167-68 (1982). Mr. Uscanga-Mora has made no attempt
to show either, and the court finds that there is nothing
preventing the procedural default of his ineffective
assistance of counsel claim even if it had survived the
statute of limitations. Id.
only claim remaining for the court's consideration in
regards to Mr. Uscanga-Mora's Motion to Reduce/Modify
Sentence is his Amendment 794 claim that he was a minimal or
minor participant in his crime and that his sentence should
be reduced accordingly.
§ 3B1.2 AMENDMENT 794 CLAIM
government concedes that Mr. Uscanga-Mora's Amendment 794
claim is timely, as the amendment was made on November 1,
2015 and plaintiff filed approximately eleven months later on
September 19, 2016. ECF No. 209 at 3. Nevertheless, the
government argues that it is lawfully and factually incorrect
for Mr. Uscanga-Mora to receive an Amendment 794 USSG §
3B1.2 reduction of sentence. Id. at 5, 6.
court agrees. First, Amendment 794 does not apply
retroactively, which would be necessary for Mr.
Uscanga-Mora's claim to take hold. The Tenth Circuit
stated very clearly in United States v. Jesus Moreno
that Amendment 794 does not apply retroactively. 696
Fed.Appx. 886, 889-90 (10th Cir. 2017)
(unpublished). In fact, it held that it did not because the
Amendment was a substantive change rather than a
clarification of the rule. Id. Therefore, Mr.
Uscanga-Mora's claim fails.
addition, the court finds that Mr. Uscanga-Mora's
Amendment 794 claim also has no factual basis. Amendment 794
reduces the sentence guideline range for those who were
minimal or minor participants “in any criminal
activity.” USSG § 3B1.2. The status of a minimal
or minor participant is determined by comparison with
“the average participant in the criminal activity,
” and the Sentencing Commission has also created
a “non-exhaustive list of factors relevant to deciding
whether to apply an adjustment and, if so, the level of the
adjustment. Those factors include: (1) the degree to which
the defendant understood the scope and structure of the
criminal activity, (2) his level of planning and
organization, (3) whether he held a decision-making role or
influenced the decisions of others, (4) the nature and extent
of his ...