United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
Russ Walker United States Magistrate Judge
the court is Gregory Barge's pro se motion for
relief under 28 U.S.C. § 2255. Doc. No. 1.
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
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
General Legal Standard
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.”
Amendment 794 to U.S.S.G. § 3B1.2
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.
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.
cases falling between (a) and (b), decrease by 3 levels.
U.S.S.G. § 3B1.2.
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