PROPOSED FINDINGS AND RECOMMENDATION

DWANE L. TINSLEY, Magistrate Judge.

This matter is assigned to the Honorable Irene C. Berger, United States District Judge, and it is referred to the undersigned United States Magistrate Judge for submission of proposed findings and a recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B).

BACKGROUND

Movant, Chandra Ross (hereinafter "Defendant"), is presently serving an aggregate 84-month sentence after pleading guilty to one count of possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1); one count of possession of firearms in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and one count of possession of a firearm with an obliterated or altered manufacturer's serial number, in violation of 18 U.S.C. §§ 922(k) and 924(a)(1)(B). The sentence consists of a 24-month sentence on Counts One and Three, and a consecutive 60-month sentence on Count Two. A Judgment to that effect was entered on February 9, 2015 (ECF No. 80). Defendant did not appeal her conviction or sentence.

On June 20, 2016, Defendant filed a Motion for Relief Under Section 2255 in Light of Johnson v. United States, 135 S.Ct. 2551 (2015) (ECF No. 83) (hereinafter "initial section 2255 motion"). On August 29, 2016, Defendant filed another Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (ECF No. 85) and a Memorandum of Law in Support of Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 86), which has been treated as an amendment to her initial section 2255 motion (hereinafter "first amendment"). In the first amendment, Defendant seeks a reduction in her sentence due to an amendment of the commentary to the sentencing guideline pertaining to a mitigating role in the offense of conviction, U.S.S.G. § 3B1.2.

On May 4, 2018, Movant filed a Motion under Fed. R. Civ. P. Rule[s] 15(a)(2) and/or 15(d) (ECF No. 93) (hereinafter "second amendment"). The second amendment seeks to challenge Defendant's conviction under 18 U.S.C. § 924(c) based on the Supreme Court's recent decision in Sessions v. Dimaya, 138 S.Ct. 1204 (2018).

Because it is apparent from the face of Defendant's filings that she is not entitled to relief under section 2255, the respondent has not been required to file a response to these motion documents.

ANALYSIS

A. Defendant is not entitled to any relief under Johnson, Moncrieffe, or Dimaya and her section 2255 motion and amendments are untimely filed.

In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which established a one-year period of limitation governing the filing of motions for collateral relief under 28 U.S.C. § 2255. The one-year period runs from the latest of one of four specified events:

28 U.S.C. § 2255(f). Movant's Judgment was entered on February 9, 2015, and her sentence became final fourteen days later (on February 23, 2015) when she did not file a Notice of Appeal. Thus, under section 2255(f)(1), the deadline for Defendant to file a timely section 2255 motion was February 23, 2016. She did not file her section 2255 motion until June 20, 2016; thus, it is not timely under section 2255(f)(1).

However, on June 26, 2015, four months after Defendant's Judgment became final, the Supreme Court held that the residual clause of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague and further found that imposition of an increased sentence thereunder violates due process.1 On April 18, 2016, the Supreme Court decided Welch v. United States, 136 S.Ct. 1257 (2016), in which the Court determined that Johnson changed the substantive reach of the ACCA, and therefore was a substantive, rather than a procedural, decision. Therefore, the Court held that Johnson announced a new substantive rule that applies retroactively to cases on collateral review.

In the instant case, Defendant asserts that her initial section 2255 motion is timely under section 2255(f)(3) because it was filed within one year of the new substantive rule announced in Johnson. However, Defendant was not sentenced under the ACCA. Thus, she did not receive any enhancement under 18 U.S.C. § 924(e)(2), which was the focus of the Johnson and Welch decisions.

Instead, Defendant argues that the newly recognized right established in Johnson extends the same vagueness analysis to the "drug trafficking crime" definition contained in 18 U.S.C. § 924(c)(2). Specifically, her initial section 2255 motion states:

(ECF No. 83 at 3-4). Ross's argument lies in her assertion that the district court never asked her if she knew the type of controlled substance involved and, thus, she contends that she was not informed that she was pleading to a trafficking offense that constituted a felony versus a misdemeanor. (Id. at 5). Consequently, she further contends that the definition of "drug trafficking crime" under § 924(c) is unconstitutionally vague and that she could not have been properly convicted of a § 924(c) offense for using or carrying a firearm during and in relation to a felony drug trafficking offense under the CSA. (Id. at 5-7).

Defendant pled guilty to possession with intent to distribute heroin which, even absent a quantity of heroin in the indictment, still constitutes a felony drug trafficking offense under 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Moreover, the Stipulation of Facts entered into as part of Defendant's plea agreement acknowledged that she possessed approximately 100 grams of heroin (a Schedule I controlled substance), that she intended to distribute the same, that she possessed approximately $28,000 in currency that was the proceeds of heroin distribution, and that she also possessed three handguns that were in close proximity to the heroin and currency she possessed. Consequently, Defendant admitted to facts supporting the use or carrying of a firearm during and in relation to a felony drug trafficking offense and, therefore, her conviction under section 924(c) was proper.

Defendant's reliance on Moncrieffe is misplaced, as that case involved section 841(b)(1)(D), which applies exclusively to offenses involving distribution of a small amount of marijuana for no remuneration. Defendant's offense is entirely distinguishable from Moncrieffe because there is not provision for a misdemeanor offense involving heroin under sections 841(a) and (b). Thus, the Supreme Court's holdings in Johnson and Moncrieffe have no effect on Defendant's 924(c) conviction for using or carrying a firearm during a felony drug trafficking crime and, thus, she is entitled to no relief based upon those decisions.

Nor does Dimaya help Defendant, as asserted in her second amendment to her section 2255 motion, filed on May 4, 2018 (ECF No. 93). In Dimaya, the Supreme Court addressed the residual clause of 18 U.S.C. § 16(b), which defines a "crime of violence" as used in various federal statutes. In Dimaya, the Court construed the section 16(b) definition as applied to the Immigration and Nationality Act. Dimaya did not in any way interpret the definition of a "drug trafficking crime" under section 924(c)(2), and Defendant's attempt to extend the vagueness analysis of Johnson and Dimaya t0 section 924(c)(2) on collateral review, minus a decision of the Supreme Court that does so, is meritless.2 Thus, Defendant's claims are not rendered timely under section 2255(f)(3) and none of the other sections of 2255(f) are implicated herein.

Accordingly, the undersigned proposes that the presiding District Judge FIND that Defendant is not entitled to any relief under section 2255 based upon the Supreme Court's decisions in Johnson, Moncrieffe, or Dimaya and that her section 2255 motion and the amendments thereto are untimely filed, and cannot be rendered timely based upon those Supreme Court decisions.

B. Defendant is not entitled to any relief under Amendment 794.

In her first amendment to her section 2255 motion (ECF No. 85 and 86), filed on August 29, 2016, Defendant asserts that she is entitled to a minor role reduction under section 3B1.2 of the United States Sentencing Guidelines ("USSG"), which was amended after her sentencing. Defendant is not entitled to the requested relief for several reasons. First, because this specific claim does not relate back to the claim raised in Defendant's initial section 2255 motion, it is not a timely amendment. Second, courts which have addressed this issue have concluded that a claim concerning the retroactive application of Amendment 794 is not cognizable under section 2255. Rather, claims concerning sentence reductions following final judgments are addressed only in limited circumstances as governed by 18 U.S.C. § 3582(c).

Amendment 794, which took effect on November 1, 2015, clarified the requirements for reducing a defendant's guideline offense level based upon the defendant's "minor" or "minimal" role for an offense under USSG § 3B1.2. The amendment was only to the commentary providing non-exhaustive examples of the factors that must be considered, under the totality of the circumstances, when a district court determines whether to apply a reduction under USSG § 3B1.2. Thus, the amendment was a clarifying amendment, and not a substantive change in the law. See United States v. Phady, No. 4:16-cv-04144-KES, 2017 WL 663533, at *3 (D.S.D. Jan. 26, 2017). Accordingly, Amendment 794 is not a newly recognized right by the Supreme Court, as required for consideration under 28 U.S.C. § 2255(f)(3); nor does the amendment qualify as a "fact" that would render the claim timely and reviewable under section 2255(f)(4). See Nelson v. United States, No. 1:16-cv-164, 2017 WL 10309300, at *6 (N.D. W. Va. Aug. 8, 2017). As noted by the court in Nelson:

Id. at *6.

Defendant did not object to the failure to receive a minor role reduction at sentencing and she failed to pursue such a challenge on direct appeal. Similar to the defendant in Nelson, because Defendant's Judgment herein was final by the time Amendment 794 took effect, she cannot properly seek a sentence reduction based on that amendment under section 2255. Thus, her only recourse would be if she could satisfy the criteria for a sentence reduction under section 3582(c), which provides as follows:

18 U.S.C. § 3582(c). However, Defendant cannot meet any of these criteria.

The undersigned proposes that the presiding District Judge FIND that Defendant has not demonstrated that she is entitled to a modification of her sentence under the circumstances provided for in section 3582(c)(1). The undersigned further proposes that the presiding District Judge FIND that the defendant's sentencing range has not been lowered by the Sentencing Commission since imposition of judgment and Amendment 794 is not listed as an amendment that is retroactively applicable under USSG 1.B1.10(d). Therefore, Amendment 794 may not be used as a basis to reduce Defendant's sentence under section 3582(c)(2) either.

Finally, even if Defendant could overcome these procedural bars to consideration of her request for retroactive relief under Amendment 794, it appears that a reduction for a minor or minimal role was not warranted in her case. Her Presentence Investigation Report ("PSR") states in multiple places that the evidence demonstrated that Defendant was "an important person in [Willie Slocum's] drug network" and was "deeply involved" therein, including personally completing hand-to-hand drug transactions and collecting money for drug sales on behalf of Slocum. Accordingly, Defendant has not demonstrated that the failure to grant her a minor or minimal participant reduction under the guidelines was a miscarriage of justice or fundamentally unfair.

RECOMMENDATION

For all of these reasons, it is respectfully RECOMMENDED that the presiding District Judge DENY Defendant's Motion for Relief Under Section 2255 in Light of Johnson v. United States, 135 S.Ct. 2551 (ECF No. 83) and the amendments thereto (ECF Nos. 85, 86 and 93), and dismiss this civil action from the docket of the court.

The parties are notified that this Proposed Findings and Recommendation is hereby FILED, and a copy will be submitted to the Honorable Irene C. Berger, United States District Judge. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), Rule 8(b) of the Rules Governing Proceedings in the United States District Courts Under Section 2255 of Title 28, United States Code, and Rule 45(c) of the Federal Rules of Criminal Procedure, the parties shall have seventeen days (fourteen days, filing of objections and three days, mailing/service) from the date of filing of these Findings and Recommendation within which to file with the Clerk of this Court, written objections, identifying the portions of the Findings and Recommendation to which objection is made, and the basis of such objection. Extension of this time period may be granted by the presiding District Judge for good cause shown.

Failure to file written objections as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L. Ed. 2d 435 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984), cert. denied, 467 U.S. 1208, 104 S.Ct. 2395, 81 L. Ed. 2d 352 (1984). Copies of such objections shall be served on the opposing party and Judge Berger.

The Clerk is requested to mail a copy of this Proposed Findings and Recommendation to Defendant, who is now in the custody of the RRM Pittsburgh, Residential Reentry Office, 1000 Liberty Avenue, Suite 1315, Pittsburgh, PA 15222, and to transmit a copy to counsel of record.