1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 DEANDRA COX, Civil Case No.: 16cv2631-JAH Criminal Case No.: 13cr1235-JAH-2 11 Petitioner, 12 v. ORDER DENYING PETITIONER’S MOTION TO VACATE, SET ASIDE, 13 UNITED STATES OF AMERICA, OR CORRECT SENTENCE 14 Respondent. PURSUANT TO

(Doc. No. 82) 15 16 17 18 INTRODUCTION 19 This matter comes before the Court on Petitioner Deandra Cox’s (“Petitioner”) pro 20 se motion to vacate, set aside, or correct her sentence pursuant to

. Doc. 21 No. 82. Under Rule 4(b) of the Rules Governing § 2255 Proceedings, this Court may 22 dismiss a § 2255 motion if it “plainly appears” from the motion, attached exhibits, and the 23 record of prior proceedings, that Petitioner is not entitled to relief. Having thoroughly 24 considered the relevant record, and for the reasons set forth below, the Court DENIES 25 Petitioner’s motion to vacate, set aside, or correct her sentence pursuant to

2255. 27 // 28 // 1 BACKGROUND 2 On June 13, 2013, Petitioner, with the advice and consent of counsel, signed a plea 3 agreement, admitting that she and a codefendant “agreed to provide an ounce of 4 methamphetamine to a customer, and thereafter two of them provided the customer 5 approximately 27.6 grams of actual methamphetamine.” Doc. No. 27 at 2. On the same 6 day, a change of plea hearing was held before Magistrate Judge Karen S. Crawford. Doc. 7 No. 25. The magistrate judge determined that Petitioner’s guilty plea was made knowingly 8 and voluntarily, and did not result from force, threats, or promises. Doc. No. 28. On April 9 28, 2014, a sentencing hearing was held where upon this Court determined that under the 10 United States Sentencing Guidelines (“USSG”), Petitioner’s base offense level was 28, 11 with a minus-two adjustment for minor role, and a minus-three adjustment for acceptance 12 of responsibility, for a total offense level of 23. Petitioner was sentenced to 77-months in 13 custody, to run concurrent with two California state sentences, followed by four years of 14 supervised release. See Doc. No. 60. Judgment was entered on April 29, 2014. Doc. No. 15 61. On October 24, 2016, Petitioner, proceeding pro se, filed a motion to vacate, set aside, 16 or correct her sentence pursuant to 28 U.S.C. 2255. 17 DISCUSSION 18 a. Legal Standard 19 The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 20 (“AEDPA”) apply to petitions for writ of habeas corpus filed in federal court after April 21 24, 1996. United States v. Asrar,

(9th Cir. 1997). The instant petition 22 is subject to AEDPA because it was filed on October 24, 2016. A § 2255 motion may be 23 brought to vacate, set aside, or correct a federal sentence on the following grounds: (1) that 24 the sentence “was imposed in violation of the Constitution or laws of the United States,” 25 (2) that “the court was without jurisdiction to impose such [a] sentence,” (3) that “the 26 sentence was in excess of the maximum authorized by law,” or (4) that “the sentence is 27 otherwise subject to collateral attack.”

(a). 28 // 1 b. Analysis 2 As a threshold matter, “a defendant seeking relief under

. . . must 3 be in custody, [and] . . . claim the right to be released from custody.” United States v. 4 Kramer,

(9th Cir. 1999). Here, the Bureau of Prisons (“BOP”) inmate 5 locator indicates that Petitioner was released from custody on August 3, 2018.1 Despite 6 Petitioner being out of BOP custody, she is still under supervised release and therefore in 7 custody within the meaning of § 2255. Mujahid v. Daniels,

(9th Cir. 8 2005) (quoting Matus–Leva v. United States,

(9th Cir. 2002) (“[A] 9 habeas petitioner remains in the custody of the United States while on supervised 10 release”)). 11 Petitioner argues she is entitled to relief based upon Amendment 794—a “[n]ewly 12 amended USSG Section 3B1.2 [which] concerns reductions sought for those who have a 13 ‘minor role’ in [an] offense.” Doc. No. 82 at 1. Amendment 794 amended the commentary 14 to U.S.S.G. § 3B1.2—the Guidelines section that provides for a downward adjustment to 15 the offense level if the defendant was a minimal or minor participant in the criminal 16 activity. Most notably, Amendment 794—which went into effect on November 1, 2015— 17 added a list of factors that a court should consider in determining whether to decrease an 18 individual's offense level under § 3B1.2. In short, it “provides additional guidance to 19 sentencing courts in determining whether a mitigating role adjustment applies.” U.S.S.G. 20 app. C, amend. 794 (2015). However, a review of the sentencing record shows that 21 Petitioner has indeed received a minus-two adjustment for her minor role in the crime. As 22 such, there is no additional relief under Amendment 794 that the Court can provide to 23 Petitioner because there is no allegation (1) that the sentence “was imposed in violation of 24 the Constitution or laws of the United States,” (2) that “the court was without jurisdiction 25 to impose such [a] sentence,” (3) that “the sentence was in excess of the maximum 26

27 1 See Inmate Locator & Record Availability, Federal Bureau of Prisons, https://www.bop.gov/inmateloc/ 28 1 || authorized by law,” or (4) that “the sentence is otherwise subject to collateral attack.” 28 2 || U.S.C. § 2255(a). 3 CERTIFICATE OF APPEALABILITY 4 To appeal a district court’s denial of a § 2255 petition, a petitioner must obtain a 5 ||certificate of appealability.

(c)(1)(A). A district court may issue a 6 certificate of appealability “only if the applicant has made a substantial showing of the 7 denial of a constitutional right.” Jd. § 2253(c)(2). To satisfy this standard, the petitioner 8 ||must show that “reasonable jurists would find the district court's assessment of the 9 || constitutional claims debatable or wrong.” Slack v. McDaniel,

(2000). 10 For the reasons stated above, no reasonable jurist could conclude that Petitioner is 11 |/entitled to relief based on the arguments set forth in her § 2255 motion. Accordingly, the 12 || Court declines to grant Petitioner a certificate of appealability 13 CONCLUSION AND ORDER 14 Based on the above, IT IS HEREBY ORDERED Petitioner’s motion to vacate, set 15 || aside, or correct her sentence is DENIED. Doc. No. 82. 16 IT IS SO ORDERED. 17 18 DATED: □ February 24, 2020 19

21 NITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28