Barge v. United States

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          Susan Russ Walker United States Magistrate Judge

         Before the court is Gregory Barge's pro se motion for relief under 28 U.S.C. § 2255. Doc. No. 1.^[1]

         I. INTRODUCTION

         On April 14, 2014, Barge pleaded guilty under a plea agreement to Hobbs Act extortion, in violation of 18 U.S.C. § 1951(a); attempt to possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 846 & 841(a)(1); and use of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). The written plea agreement contained a provision under which Barge waived his right to appeal or collaterally attack his sentence, with exceptions for claims of ineffective assistance of counsel and prosecutorial misconduct. Following a sentencing hearing on August 5, 2014, the district court sentenced Barge to a total of 94 months in prison. The district court entered judgment on August 8, 2014. Barge did not appeal.

         On November 1, 2106, Barge filed this § 2255 motion claiming that he should receive a mitigating role reduction to his sentence based on Amendment 794 to § 3B1.2 of the United States Sentencing Guidelines. See Docs. No. 1 & 2. For the reasons that follow, the Magistrate Judge recommends that Barge's § 2255 motion be denied without an evidentiary hearing and this case be dismissed with prejudice.

         II. DISCUSSION

         A. General Legal Standard

         Because collateral review is not a substitute for direct appeal, the grounds for collateral attack on final judgments under 28 U.S.C. § 2255 are limited. A prisoner may secure relief under § 2255 if the court imposed a sentence that (1) violated the constitution or laws of the United States, (2) exceeded its jurisdiction, (3) exceeded the maximum authorized by law, or (4) is otherwise subject to collateral attack. See 28 U.S.C. § 2255; United States v. Phillips, 225 F.3d 1198, 1199 (11th Cir. 2000); United States v. Barge, 198 F.3d 811, 813 n.5 (11th Cir. 1999). “Relief under 28 U.S.C. § 2255 ‘is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice.'” Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (citations omitted). The “fundamental miscarriage of justice” exception recognized in Murray v. Carrier, 477 U.S. 478, 496 (1986), provides that it must be shown that the alleged constitutional violation “has probably resulted in the conviction of one who is actually innocent.”

         B. Amendment 794 to U.S.S.G. § 3B1.2

         Barge maintains that he should receive a retroactive mitigating role reduction to his sentence based on the November 1, 2015 amendment (Amendment 794) to U.S.S.G. § 3B1.2. See Docs. No. 1 & 2.

         Section 3B1.2 of the Sentencing Guidelines provides that a defendant's offense level should be decreased as follows:

(a) If the defendant was a minimal participant in any criminal activity, decrease by 4 levels.

(b) If the defendant was a minor participant in any criminal activity, decrease by 2 levels.

         In cases falling between (a) and (b), decrease by 3 levels. U.S.S.G. § 3B1.2.

         Amendment 794 amended the Commentary to § 3B1.2 by introducing a list of non-exhaustive factors that a sentencing court should consider when determining whether to apply a mitigating role ...