United States District Court, D. Maryland
Richard D. Bennett, United States District Judge
pro se Petitioner Brooke Lunn
("Petitioner" or "Lunn") pled guilty
before this Court to one count of Conspiracy to Distribute
and Possess with Intent to Distribute Cocaine, in violation
of 21 U.S.C. § 846. See J., p. 1, ECF No. 248.
At sentencing, this Court determined that Lunn had a total
offense level of 35 and criminal history category of II.
See Statement of Reasons, p. 1, ECF No. 249. Her
advisory sentencing guideline range was 188 to 235 months
imprisonment. Id. This Court ultimately sentenced
Lunn to a total of 144 months imprisonment. J., p. 2, ECF No.
248. Currently pending before this Court is Petitioner's
Motion to Vacate, Set Aside, or Correct Sentence (ECF No.
354), pursuant to 28 U.S.C. § 2255. Having reviewed the
parties' submissions, this Court finds that no hearing is
necessary. See Local Rule 105.6 (D. Md. 2016). For
the reasons stated below, Petitioner's Motion to Vacate
(ECF No. 354) is DENIED.
contends that that her "Criminal History Category III
was erroneous" and that she "should receive a
reduction for minor role" based upon "the
clarifying and therefore retroactive Amendment 794 to the
United States Sentencing Guidelines." See Mot.
to Vacate, p. 8, ECF No. 354. Petitioner's first
argument, as to her criminal history calculation, is
completely without merit because this Court sentenced her
under a Criminal History Category of II, not III.
See Sent. Tr., ECF No. 369; see also
Statement of Reasons p. 1, ECF No. 249. That calculation was
fully supported by her prior conduct, as set forth in the
Presentence Report. Petitioner has provided no evidence to
the contrary. Petitioner's second argument, with respect
to Amendment 794, is equally unavailing for reasons discussed
November 1, 2015, the United States Sentencing Commission
issued Amendment 794 to the commentary to Section 3B1.2 of
the United States Sentencing Guidelines, based on its finding
that minor role reductions were "applied inconsistently
and more sparingly than the Commission intended."
United States v. Quintero-Leyva, 823 F.3d 519, 521
(9th Cir. 2016). Amendment 794 now helps sentencing courts
identify "low-level offenders" without a
"proprietary interest in the criminal activity" who
may be considered for a "mitigating role
adjustment." U.S.S.G. App. C (Nov. 2015).
Petitioner now requests a "reduction for minor
role" under Amendment 794, see Mot. to Vacate,
p. 8, ECF No. 354, a Section 2255 Motion to Vacate is not the
proper vehicle for that request. A motion for sentence
reduction should be filed under 18 U.S.C. § 3582, not
Section 2255. See United States v. Jones, 143
Fed.Appx. 526, 527 (4th Cir. 2005). Moreover, even if
Petitioner had properly asserted her claim under Section
3582(c)(2), she would not be entitled to a sentence
reduction. Amendment 794 did not go into effect until
November 1, 2015, well after the Petitioner's sentencing
on September 2, 2015. J., p. 1, ECF No. 248. The
United States Sentencing Commission Guidelines Manual states
that "[t]he court shall use the Guidelines Manual in
effect on the date that the defendant is sentenced."
U.S.S.G. § 1B1.11(a) (Nov. 2015). Amendment 794 is not
among the listed Guideline Amendments that the Commission has
made retroactively applicable to defendants on collateral
review. See United States v. Hunky, 2016 WL 4523417,
*l-2 (W. D. Va. 2016); Vakhouty v. United States,
2016 WL 4939226, *2 (D. Md. 2016).
even if Amendment 794 were retroactively applicable,
Petitioner's sentence would be unaffected by Amendment
794. Petitioner would not qualify for a "mitigating role
adjustment." Petitioner played an essential role in the
cocaine conspiracy to which she pled guilty, having
"made approximately 30 trips to Houston, Texas ... to
deliver money and return to Baltimore with kilogram, quantity
loads of cocaine." Presentence Report, p. 5, ¶ 9,
ECF No. 229. This Court correctly applied the Sentencing
Guidelines as they existed at the time of Petitioner's
sentencing. Petitioner's argument under Amendment 794
fails. Accordingly, Petitioner is not entitled to
post-judgment relief under Section 2255.
foregoing reasons, Petitioner's Motion to Vacate, Set
Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255
(ECF No. 354) is DENIED.
to Rule 11(a) of the Rules Governing Proceedings under 28
U.S.C. § 2255, the court is required to issue or deny a
certificate of appealability when it enters a final order
adverse to the applicant. A certificate of appealability is a
"jurisdictional prerequisite" to an appeal from the
court's earlier order. United States v. Hadden,
475 F.3d 652, 659 (4th Cir. 2007). 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). Where the court
denies petitioner's motion on its merits, a petitioner
satisfies this standard by demonstrating that reasonable
jurists would find the court's assessment of the
constitutional claims debatable or wrong. See Slack v.
MeDaniel, 529 U.S. 473, 484 (2000); see also
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003).
Because reasonable jurists would not find Petitioner's
claims debatable, a certificate of appealability is DENIED.
separate Order follows.
 Also pending before this Court is the
Motion for Return of Property and to Set Aside Forfeiture
pursuant to 18 U.S.C. § 983 (ECF No. 250) of "AA
Autorama, " in which AA Autorama requests that the
Government "return ... or pay said value" for four
vehicles seized by die Government that were registered To
Lunn's co-defendants Kedrick Jenifer and Tyrone Allen. AA
Autorama has subsequently filed a Motion to Withdraw that
pending Motion for Return of Property (ECF No. 256). The
Motion to Withdraw ...