United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
W. Darrah, U.S. District Court Judge
Modesto Ozuna filed a pro se Motion to Vacate, Set
Aside, or Correct  his sentence pursuant to 28 U.S.C.
§ 2255. For the reasons provided below, this Motion 
September 17, 2003, Petitioner was charged by superseding
indictment with knowingly and intentionally possessing with
intent to distribute in excess of 5 kilograms of cocaine, in
violation of 21 U.S.C. § 841(a)(1). On November 9, 2006,
following a jury trial, Petitioner was convicted. At
Petitioner's sentencing hearing, his adjusted offense
level was 42 with a criminal history level of II. The
applicable guideline calculation suggested a guideline range
of 360 months to life. On June 27, 2007, Petitioner was
sentenced to a term of 300 months' imprisonment.
Petitioner appealed his conviction on June 14, 2007. On April
30, 2009, the Seventh Circuit affirmed Petitioner's
January 27, 2015, Petitioner filed a motion to reduce his
sentence pursuant to 18 U.S.C. § 3582(c)(2) based upon
Amendment 782 to the Sentencing Guidelines. Petitioner's
motion was denied because he was sentenced to a term below
the amended guideline range. On June 29, 2015, Petitioner
filed another motion to reduce his sentence pursuant to 18
U.S.C. § 3582(c)(2), challenging his criminal history
category. On February 4, 2016, Petitioner's second motion
was denied because Amendment 782 did not affect his criminal
history category, therefore, a reconsideration of that issue
was not authorized by section 3582.
filed this Motion to Vacate  on October 11, 2016.
Petitioner alleges that he is entitled to be resentenced as a
“minor” participant under Amendment 794 to the
U.S. Sentencing Guidelines.
pro se petition is construed liberally. Ward v.
Jenkins, 613 F.3d 692, 700 (7th Cir. 2010). A prisoner
convicted of a federal crime may move the district court that
imposed the sentence to vacate, set aside, or correct the
sentence. 28 U.S.C. § 2255. A petitioner must show that
“the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack.” 28 U.S.C.
§ 2255(a). Relief is only available in cases where
jurisdictional or constitutional errors have caused a
“complete miscarriage of justice.” Harris v.
U.S., 366 F.3d 593, 594 (7th Cir. 2004) (quoting
Borre v. United States, 940 F.2d 215, 217 (7th Cir.
1991)). This is an “extraordinary remedy because it
asks the district court essentially to reopen the criminal
process to a person who already has had an opportunity for
full process.” Almonacid v. U.S., 476 F.3d
518, 521 (7th Cir. 2007).
in the application of the sentencing guidelines cannot be
raised in 2255 motions as long as a defendant's sentence
is within the range provided by the statute for the offense.
United States v. Wisch, 275 F.3d 620, 625 (7th Cir.
2001) (holding that sentencing guideline calculation errors
are not constitutional and are therefore not reviewable in
2255 proceedings). Petitioner was sentenced to a term below
the guideline range for his offense. Petitioner makes no
argument that the sentencing guideline and commentary in
effect at the time he was sentenced were not applied
correctly. Petitioner instead argues that he is entitled to
an application of both Amendment 794 and Amendment 782, and
that after adjustments from both of those amendments, his
amended sentencing guideline range would be 262 months to 327
months of imprisonment. Petitioner asserts that because he
was not sentenced under the correct sentencing guideline
range, he was improperly sentenced in violation of his
the Court may modify a term of imprisonment when the
guidelines governing the sentence are subsequently lowered by
the Sentencing Commission, Amendment 794 to the Sentencing
Guidelines does not lower a sentencing range. Amendment 794
modified the commentary to Sentencing Guideline § 3B1.2
to provide additional guidance in its application. Further,
Petitioner was sentenced in 2007, well before Amendment 794
became effective on November 1, 2015. Sentencing Guideline
1B.10 lists all amendments eligible for retroactive effect,
and Amendment 794 is not listed. 18 U.S.C. § 3582(c)(2);
USSG § 1B.10. Thus, Amendment 794 is inapplicable here.
Petitioner is not entitled to the cumulative effect of the
application of Amendment 794 and Amendment 782.
cites to United States v. Quintero-Leyva, 823 F.3d
519 (9th Cir. 2016), to support his contention
that Amendment 794 is retroactively applicable to his case.
However, in Quintero-Leyva, the Ninth Circuit held
that Amendment 794 applied retroactively to a case on direct
appeal, not that it applied retroactively on collateral
review after a conviction has become final.
district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant on a habeas petition. A certificate of
appealability “may issue . . . only if the applicant
has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
Petitioner has not made a substantial showing of the denial
of a constitutional right; and, accordingly, a certificate of