MEMORANDUM OPINION AND ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY PURSUANT TO 28 U.S.C. § 2255

HALIL SULEYMAN OZERDEN, District Judge.

BEFORE THE COURT is the second Motion [558] of Wilton Joseph Cuevas ("Cuevas") to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, pursuant to 28 U.S.C. § 2255. After due consideration of the Motion, related pleadings, the record, and relevant legal authority, the Court is of the opinion that Cuevas is not entitled to relief and that his § 2255 Motion should be denied in accordance with Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts (the "Section 2255 Rules") without the requirement of an answer by the United States Attorney and without an evidentiary hearing.

I. FACTS AND PROCEDURAL HISTORY

On April 17, 2012, a Grand Jury returned a 30-count Indictment [3] against Cuevas and 14 co-Defendants. Count 1 of the Indictment [3] charged Cuevas and his co-Defendants with conspiring to commit the following offenses against the United States in violation of 18 U.S.C. § 371:

Indictment [3] at 2. Count 30 charged Cuevas and his co-Defendants with knowingly and willfully engaging in a business of selling firearms without a license issued under federal law by selling 85 firearms in violation of Section 922(a)(1)(A), Title 18, United States Code. Id. at 17.

Cuevas elected to enter into a Plea Agreement [336] with the Government, and on August 8, 2012, pleaded guilty to Counts 1 and 30 of the Indictment. See Aug. 8, 2012, Minute Entry. The Plea Agreement [336] provided in relevant part that Cuevas

expressly waives the following rights:

Plea Agreement [336] at 4.

Cuevas was sentenced on November 14, 2012, to terms of imprisonment of 60 months as to Count 1 and 26 months as to Count 30, to run consecutively to each other. See Nov. 14, 2012, Minute Entry. The Judgment [401] was entered on November 16, 2012. J. [401] at 1. Cuevas did not file a direct appeal.

On October 21, 2013, Cuevas filed his first Motion [464] to Vacate, Set Aside, or Correct a Sentence by a Person in Federal Custody. On May 14, 2014, the Court granted the Motion [464] in part, to the extent it found that Cuevas was entitled to pursue an out-of-time appeal, and reinstated the Judgment [401] on the docket, so that Cuevas could file a timely notice of appeal. See Order [496] at 8; May 14, 2014, Text Order. The Court dismissed the Motion [464] in all other respects without prejudice. Order [496] at 8.

Cuevas filed a Notice of Appeal [500] and was appointed counsel to represent him on his direct appeal. See Order [505] at 1-2. On December 9, 2014, the Government filed a Motion to Dismiss or, in the Alternative, for Summary Affirmance invoking the appeal waiver contained in the Plea Agreement with Cuevas. On December 18, 2014, the United States Court of Appeals for the Fifth Circuit granted the Government's Motion to Dismiss. See Order [520] at 1. Cuevas filed a Petition for writ of certiorari with the United States Supreme Court which was denied on April 20, 2015. See Letter [528] at 1.

On August 7, 2016, Cuevas filed the present Motion [558] pursuant to 28 U.S.C. § 2255.1 Ground One of Cuevas's Motion seeks a minor-role reduction pursuant to an amendment to the United States Sentencing Guidelines and seeks a three-level decrease in his offense level for acceptance of responsibility. See Mot. [558] at 4; Mem. [558-1] at 2-3. Ground Two asserts that a firearm enhancement he received under United States Sentencing Guideline § 2k2.1(b)(6) is now illegal and unconstitutional under Johnson v. United States, 135 S.Ct. 2551 (2015), and its progeny. See Mot. [558] at 5; Mem. [558-1] at 3. Cuevas simply reargues the minor role reduction and Johnson in Grounds Three and Four. Mot. [558] at 8-9. Cuevas asks the Court to re-sentence him without the foregoing enhancements. Mem. [558-1] at 4. Construing all facts in Cuevas's favor, it is clear that he is entitled to no relief under § 2255.

II. DISCUSSION

A. Cuevas is not entitled to relief pursuant to the amendment to Guideline § 3B1.2.

Cuevas asks the Court to apply a minor-role adjustment under United States Sentencing Guideline § 3B1.2 based upon a recent amendment to § 3B1.2 ("Amendment 794") and based upon United States v. Quintero-Leyva, 823 F.3d 519 (9th Cir. 2016). Mem. [558-1] at 1-3. Construing all allegations in his favor, Cuevas is not entitled to relief under § 2255 pursuant to Amendment 794 to the Sentencing Guidelines.

"Claims of misapplication of the guidelines are not cognizable under § 2255." United States v. Guerrero, No. 16-41150, 2017 WL 2703676, at *1 (5th Cir. June 21, 2017) (citing United States v. Williamson, 183 F.3d 458, 462 (5th Cir. 1999); United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992)). A request to reduce a sentence based upon the United States Sentencing Commission's adoption of an amendment lowering a sentencing range is properly construed as arising under 18 U.S.C. § 3582(c)(2). See id. (Amendment 794); United States v. Porter, 335 F. App'x 408, 409 (5th Cir. 2009) (Amendments 706 and 709).

Nor is Cuevas entitled to relief under § 3582(c)(2). 18 U.S.C. § 3582(c)(2) provides that a court may not modify a term of imprisonment once it has been imposed except that

18 U.S.C. § 3582(c)(2). Section 3582(c)(2) applies only to retroactive guideline amendments that are listed in U.S.S.G. § 1B1.10(d), which Amendment 794 is not. Guerrero, 2017 WL 2703676, at *1 (citing Dillon v. United States, 560 U.S. 817, 826 (2010)); see also Porter, 335 F. App'x at 410.

The authority upon which Cuevas relies, United States v. Quintero-Leyva, 823 F.3d 519 (9th Cir. 2016), involved the retroactivity of Amendment 794 on a direct appeal and is not controlling here. Cuevas's present Motion is not a direct appeal, and persuasive authority indicates that Amendment 794 does not apply retroactively to cases such as this one. See Guerrero, 2017 WL 2703676, at *1; Porter, 335 F. App'x at 410.2 Cuevas is not eligible for relief under Amendment 794.

B. Cuevas is not entitled to relief under § 2255 for the Court having denied him acceptance of responsibility under § 3E1.1 of the Guidelines.

Cuevas argues that the Court erred in not giving him credit for acceptance of responsibility pursuant to Guideline § 3E1.1(a). Mem. [558-1] at 1, 3. Cuevas appears to rely upon United States v. Hollis, 823 F.3d 1045 (6th Cir. 2016), to argue that the Court violated his due process rights and thereby prejudiced him. See id. at 3.

In Hollis, the district court denied the defendant credit for acceptance of responsibility pursuant to Guideline § 3E1.1(a) solely on the basis of his failure to give early enough notice of his intent to plead guilty. Hollis, 823 F.3d at 1046. Hollis appealed, and the Sixth Circuit vacated the sentence and remanded because it determined that the district court had effectively conflated the standards for granting credit under subsections (a) and (b) of § 3E1.1. Id. Hollis is not controlling authority and is factually distinguishable because this Court did not deny Cuevas acceptance of responsibility solely because he belatedly gave notice of intent to plead guilty. See Tr. [509] at 19-21 (prosecutor detailed at sentencing hearing Cuevas's frivolous denial of relevant conduct). This case is not a direct appeal as was the situation in Hollis. See Hollis, 823 F.3d at 1046. The Court determined at sentencing that Cuevas's conduct was inconsistent with acceptance of responsibility, such that he should not receive a downward adjustment for acceptance of responsibility. See Tr. [509] at 23; see also Statement of Reasons [377] at 1.

In addition, as the Court has previously stated, a defendant may not raise misapplication of the Sentencing Guidelines in § 2255 motions. See Williamson, 183 F.3d at 462. "Section 2255 motions may raise only constitutional errors and other injuries that could not have been raised on direct appeal that will result in a miscarriage of justice if left unaddressed." Id. Cuevas's claim that the Court erred in not giving him credit for acceptance of responsibility is not cognizable under § 2255. See id. Moreover, as part of his Plea Agreement, Cuevas waived his right to contest the manner in which the sentence was imposed in this case. Plea Agreement [336] at 4.3

C. Cuevas has not shown that he is entitled to relief based upon Johnson.

Cuevas asserts that a four-level firearm enhancement he received under Guideline § 2k2.1(b)(6) is now unconstitutional under Johnson v. United States, 135 S.Ct. 2551 (2015), and its progeny. Cuevas argues that this provision of the Guidelines is "unconstitutionally vague." Mem. [558-1] at 3-4.4

Johnson held that imposing an increased sentence under the "residual clause" of the Armed Career Criminal Act (the "ACCA"), 18 U.S.C. § 924(e)(2)(B), violated the Constitution's guarantee of due process. Johnson, 135 S. Ct. at 2563. Welch v. United States, 136 S.Ct. 1257 (2016), held that the rule announced in Johnson applied retroactively to cases on collateral review. Welch, 136 S. Ct. at 1268.

The ACCA provided that

18 U.S.C. § 924(e)(2)(B) (emphasis added). The emphasized clause beginning with "or otherwise" was referred to as the residual clause.

Section 4B1.2(a) of the Sentencing Guidelines previously contained a residual clause that was worded identically to the residual clause contained in the ACCA. See Beckles v. United States, 137 S.Ct. 886, 890 (2017) (citing U.S. Sentencing Guidelines Manual § 4B1.2(a)). Beckles considered whether the Guidelines' residual clause, like the one in the ACCA, was void for vagueness under the Due Process Clause. Id. Beckles held that because the Guidelines are advisory, they are not subject to a vagueness challenge under the Due Process Clause, such that § 4B1.2(a)(2)'s residual clause was not void for vagueness. Id. at 892.

In the present case, Cuevas's sentence was not enhanced under the ACCA or under Guideline § 4B1.2. Nor was Cuevas's sentence otherwise enhanced due to a "crime of violence." The four-level increase Cuevas received under § 2K2.1(b)(6) did not involve a finding that he had committed a "crime of violence," but instead was applied because the Court found that Cuevas was involved in the possession and sale of between eight and 24 firearms. The convictions used to calculate Cuevas's criminal history points for Guidelines purposes do not appear to be crimes of violence, and the Court made no such finding. While Guideline § 2K2.1(a) employs the term "crime of violence" in some of the subsections used for determining the applicable base offense level, see § 2K2.1(a)(1)-(4) (base offense levels 20 through 26), Cuevas was assigned a lower base offense level of 12 pursuant to Guideline § 2K2.1(a)(7), which did not involve or reference a "crime of violence," see Tr. [509] at 18.5 Johnson is therefore wholly inapplicable here.

Even if the Court had relied upon the residual clause of § 4B1.2 in sentencing Cuevas, Beckles clearly forecloses Cuevas's argument. See Beckles, 137 S. Ct. at 897 ("Because the advisory Sentencing Guidelines are not subject to a due process vagueness challenge, § 4B1.2(a)'s residual clause is not void for vagueness."). Construing all factual allegations in Cuevas's favor, he has not shown that he is entitled to any relief under § 2255 based upon Johnson.

D. Cuevas's Motion is also untimely.

Cuevas's § 2255 Motion is also untimely pursuant to 28 U.S.C. § 2255(f). Cuevas's Petition for Writ of Certiorari to the Supreme Court was denied on April 20, 2015, see Letter [528] at 1, and his § 2255 Motion was not filed until August 7, 2016, beyond the applicable one-year statute of limitations, see 28 U.S.C. § 2255(f); United States v. Thomas, 203 F.3d 350, (5th Cir. 2000) (holding that the one-year statute of limitations "begins to run when a petition for certiorari is denied by the Supreme Court"). Cuevas has not alleged any basis for equitable tolling, nor has he asserted any facts which would tend to show that the statute of limitations should be tolled. Because Cuevas's Motion is untimely, it should be denied on this basis. See United States v. Plascencia, 537 F.3d 385, 390 (5th Cir. 2008) (affirming district court's sua sponte dismissal of § 2255 motion that was filed outside the one-year limitation period).

III. CONCLUSION

For the foregoing reasons, it is clear from the Motion, related pleadings, and the record that Cuevas is entitled to no relief, and the Court finds that Cuevas's Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 should be denied pursuant to Rule 4(b) of the Section 2255 Rules without an Answer by the United States Attorney and without an evidentiary hearing.

IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Motion [558] of Defendant Wilton Joseph Cuevas to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, pursuant to 28 U.S.C. § 2255, is DENIED.

SO ORDERED AND ADJUDGED.