United States District Court, W.D. New York
DECISION AND ORDER
RICHARD J. ARCARA, UNITED STATES DISTRICT JUDGE
August 4, 2014, the Court sentenced the Defendant principally
to 48 months' imprisonment following his plea of guilty
to one count of using a communication facility to facilitate
a drug felony, in violation of 18 U.S.C § 843(b).
Several years later, pursuant to 18 U.S.C. § 3582(c)(2),
the Court reduced the Defendant's sentence to 46
months' imprisonment in light of Amendment 782 to the
U.S. Sentencing Guidelines.
Defendant has since filed what he characterizes as a petition
for a writ of habeas corpus pursuant to 28 U.S.C. §
2255. In his petition, the Defendant seeks a second sentence
reduction in light of Amendment 794 to the Sentencing
Guidelines. Amendment 794, which became effective November 1,
2015, amended the commentary to Guideline § 3B1.2 to
“provide additional guidance to sentencing courts in
determining whether a mitigating role adjustment
applies.” U.S.S.G., Supp. to App'x C, Amend. 794,
Reason for Amendment. After amendment, the
commentary to Guideline § 3B1.2 now “provides a
list of non-exhaustive factors for the court to consider in
determining whether an adjustment applies and, if so, the
amount of the adjustment.” Id.
Government makes a number of arguments in response to the
Defendant's petition. First, the Government argues that
the petition is untimely. Second, the Government notes that,
in his plea agreement, the Defendant waived the right to
collaterally attack his conviction. Third, the Government
argues that the Defendant's claim is not cognizable under
§ 2255. And fourth, the Government argues that, even if
the Defendant's claim is cognizable under 18 U.S.C.
§3582(c)(2), it should be denied on its merits.
a § 2255 petition would almost certainly be dismissed
for any one of the reasons identified by the Government,
given that the Defendant's petition is based on an
amendment to the U.S. Sentencing Guidelines, and in light of
the Defendant's pro se status, the Court sua
sponte converts the Defendant's § 2255 petition
into a motion brought pursuant to 18 U.S.C. §
3582(c)(2). See Castro v. United States, 540 U.S.
375, 381 (2003) (“Federal courts sometimes will ignore
the legal label that a pro se litigant attaches to a
motion and recharacterize the motion in order to place it
within a different legal category. They may do so in order to
avoid an unnecessary dismissal . . . or to create a better
correspondence between the substance of a pro se
motion's claim and its underlying legal basis.”)
(citations omitted). In addition, the Court assumes for
purposes of this Decision and Order that Amendment 794
applies retroactively. But see, e.g., Calderon
v. United States, 02-CR-1082-02(NRB), 2016 WL 7742746,
at *1 (S.D.N.Y. Dec. 28, 2016).
with this assumption, however, the Defendant's motion
must be denied because regardless of whether the Court
applies the pre- or post-Amendment 794 version of Guideline
§ 3B1.2, the Defendant did not play a
“minor” role in his crime of conviction. In his
plea agreement, the Defendant admitted that, as part of his
conduct in this case, he called another person, Ariel
Rodriguez, “and would direct Rodriguez to drive a van,
containing a quantity of cocaine, ” from New York City
to Buffalo, New York. Docket No. 65 ¶ 4.a. Moreover, the
Defendant's Presentence Investigation Report (PSR) shows
that the Defendant “directed Rodriguez to register
vehicles and utility bills in Rodriguez's name for the
[D]efendant.” PSR ¶ 15. After Rodriguez arrived in
Buffalo with the van full of cocaine, the Defendant took the
van's keys and unloaded the cocaine. Id.
“Rodriguez would then drive the [D]efendant [and
another person] around to make cocaine deliveries.”
on these facts, the Court concluded at sentencing that the
Defendant's base offense level should be enhanced two
levels, pursuant to Guideline § 3B1.1(c), because the
Defendant “was an organizer, leader, manager, or
supervisor” in the criminal conduct at issue in the
case. U.S.S.G. § 3B1.1(c).
facts that supported the Defendant's two-level upward
adjustment make him ineligible for a mitigating role
adjustment, even after Amendment 794. For example, the fact
that the Defendant ordered Rodriguez to drive cocaine from
New York City to Buffalo shows, at the very least, a modest
amount of planning and organizing, and it certainly shows an
understanding of “the scope and structure of the
criminal activity.” U.S.S.G. § 3B1.2 (2016), cmt.
3(C)(i)-(ii). It also shows that the Defendant exercised at
least some decision-making authority. See Id. cmt.
3(C)(iii). And, finally, the fact that the Defendant directed
Rodriguez to register vehicles and utilities in
Rodriguez's name (but for the Defendant's benefit)
shows that the Defendant understood the illegal nature of his
conduct. That understanding is inconsistent with the
commentary to the Guidelines' minor-role adjustment,
which suggests applying the adjustment when a defendant was
“substantially less culpable than the average
participant in the criminal activity” at issue.
Id. cmt. 3(A). Compare Id. (“For
example, a defendant who is convicted of a drug trafficking
offense, whose participation in that offense was limited to
transporting or storing drugs and who is accountable under
§ 1B1.3 only for the quantity of drugs the defendant
personally transported or stored may receive an adjustment
under this guideline.”)
these reasons, assuming that the post-Amendment 794 version
of Guideline § 3B1.2 applies in this case, the Defendant
would not be entitled to a mitigating role adjustment. The
Defendant's motion (Docket No. 80) is therefore denied.
 At sentencing, the Defendant did not
object to the PSR's factual findings.
 In his plea agreement, the Defendant
agreed that the § 3B1.1(c) adjustment was properly
applied in this case. See Docket ...