Opinion
Civil Action No. 1:16-cv-00212 Criminal No. 1:14-cr-1022-1
11-03-2016
DULCE ISABEL SALAZAR-ESPINOZA, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Before the Court is the "Magistrate Judge's Report and Recommendation" (Docket No. 6) in the above-referenced cause of action. The Magistrate recommends dismissal of the following: Salazar-Espinoza's "Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody" (Docket No. 1) and "Motion for Minor Role Adjustment and Sentence Reduction based on United States v. Quintero-Leyva and Pursuant to Amendment 794 and 28 U.S.C. § 2255" (Docket No. 2).
On October 28, 2016, Salazar-Espinoza filed an objection to the Magistrate's Report and Recommendation, entitled "Motion in Response to Magistrate Judge's Report and Recommendation to Submitted Motion Pursuant to USC § 2255 in Light of Amendment 794" (Docket No. 9). In her objection, Salazar-Espinoza argues that her sentence should be reconsidered in light of Amendment 794 to the United States Sentencing Guidelines, which echoes the arguments in her two original motions.
After a de novo review of the file, the "Magistrate Judge's Report and Recommendation" (Docket No. 6) is ADOPTED. It is therefore ORDERED, ADJUDGED, and DECREED that to the extent Salazar-Espinoza seeks relief under 28 U.S.C. § 2255, her motions (Docket No. 1 and 2) are DISMISSED for failure to state a cognizable claim.
Moreover, to the extent Salazar-Espinoza seeks a reduction of her sentence based on a retroactive application of Amendment 794 to the United States Sentencing Guideline, her motions (Docket No. 1 and 2) are construed as seeking relief pursuant to 18 U.S.C. 3582(c)(2) and are DENIED because Amendment 794 has not been given retroactive effect under § 1B1.10 of the United States Sentencing Guideline. See United States v. Drath, 89 F.3d 216, 218 (5th Cir. 1996) (holding that if an amendment is not listed as retroactive in § 1B1.10, it does not apply retroactively). A certificate of appealability shall not issue.
The Court ORDERS the Clerk's Office to close the above-captioned case.
Signed on this 3rd day of November, 2016
/s/_________
Rolando Olvera
United States District Judge