United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
D. BATES United States District Judge
the Court is  petitioner Edwin Henriquez's motion to
correct his sentence under 28 U.S.C. § 2255. For the
reasons explained below, Henriquez's motion will be
mid-January 2008, Henriquez took $30, 000 from an associate,
Ricky Matos, and pooled it with $10, 000 of his own money to
purchase cocaine. See Proffer of Evid. [ECF No. 10]
¶ 3. He purchased a plane ticket to Georgia and met with
his supplier, exchanging the $40, 000 for cocaine, before
travelling back toward New York on an Amtrak train. See
id. ¶¶ 3-4. Before he could get back,
Henriquez was arrested and charged with possession of a
mixture containing cocaine with intent to distribute.
See Compl. [ECF No. 1]. On February 11, 2008,
Henriquez signed an agreement to plead guilty to conspiracy
to possess with intent to distribute two kilograms of
cocaine, in violation of 21 U.S.C. §§ 841(a)(1),
846. See Plea Agreement [ECF No. 9] ¶¶ 1,
5A. The agreement stipulated that Henriquez would have a base
offense level of 28, but that he would be eligible for a
three-level reduction in the Sentencing Guidelines if he
“clearly demonstrate[d] acceptance of
responsibility.” Id. ¶¶ 5A-B.
Henriquez pleaded guilty on February 19, 2008 and was
released on his own recognizance. See Min. Entry of
Feb. 19, 2008. But he later fled to the Dominican Republic,
and the Court issued an arrest warrant on July 16, 2008.
See Sentencing Mem. [ECF No. 26] at 6; Warrant for
Arrest [ECF No. 17]. After being apprehended in July 2015,
Henriquez was extradited to the United States, see
Sentencing Mem. at 6, and was sentenced on February 9, 2016
to sixty-eight months' imprisonment, see
Judgment [ECF No. 30].
to the instant challenge, at sentencing the Court “used
the current guideline manual” in case “the
current manual, given changes in the law, is more favorable
to the defendant than the guideline manual relevant to the
time of the offense would have been.” Sentencing Tr.
[ECF No. 36] at 4:12-:16. The Court determined that the base
offense level was 26, consistent with the plea agreement;
that Henriquez was safety valve eligible, for a two-level
reduction; but that Henriquez must also receive a two-level
increase for obstructing justice by fleeing the country.
See id. at 4:20-5:8. Henriquez was “not . . .
to be accorded any adjustment for acceptance of
responsibility given his flight and long-term avoidance of
sentencing.” Id. at 5:9-:11. With a final
offense level of 26 and no prior criminal history, the Court
calculated a guideline range of 68 to 73 months. See
id. at 5:14-:23. Defense counsel did not object to this
calculation. See id. at 5:24- 6:26. But he argued
that the Court should sentence below the sixty-month
mandatory minimum, in part because, counsel asserted,
Henriquez had only acted as “a
‘mule'”-a mere transporter of drugs working
for a larger drug trafficking organization. See id.
at 14:8-:12. However, the Court rejected this argument during
final sentencing. Id. at 23:6-:12 (“He
arranged for a significant purchase; he was not just a mule.
. . . He supplied a significant amount of the funds for the
purchase. So, yes, he did some of the transport, which is
what we usually think of a mule as doing; but he did a lot
more than that.”). Henriquez thus received a
sixty-eight month sentence, with credit for time served.
Id. at 26:15-:17.
filed the instant motion to correct his sentence on October
7, 2016. See Mot. to Correct Sentence [ECF No. 33].
In it, Henriquez argues again that he “was a
‘mule' who was acting by instruction from unknown
co-conspirators, ” id. at 2, and that he
should receive a mitigating role adjustment to his sentence
under Amendment 794 to the Sentencing Guidelines,
id. at 2-3. Amendment 794, which clarified the
factors a court should consider when determining whether to
make such a role adjustment, went into effect on November 1,
2015. See U.S.S.G. App. C amend. 794 (eff. Nov. 1,
2015) (codified at U.S.S.G. § 3B1.2 note 3(C)).
Henriquez acknowledges that the Court “applied the
version of the Guidelines in effect on the date of [his]
sentence, ” but contends that the Court should
“review de novo its application of the
Guidelines” and should “consider
clarifying amendments retroactively.” Mot. to
Correct Sentence at 3.
styles his claim as a collateral attack under 28 U.S.C.
§ 2255, the federal habeas statute. However, as the
government rightly points out, see Gov't's
Opp'n [ECF No. 37] at 6-7, § 2255 is not the proper
vehicle for Henriquez's motion. Henriquez cites several
cases in which courts have ruled that clarifying amendments
to the Sentencing Guidelines can be applied retroactively,
and implies that the Court may not have applied Amendment 794
in its original sentencing but should do so now. See
Mot. to Correct Sentence at 3-4. These cases are irrelevant
here, because the Court employed the then-current Guidelines
at Henriquez's sentencing, and Amendment 794 was already
in effect at that point. Henriquez, therefore, is essentially
asking the Court to recalculate his Guidelines range. But
“a non-jurisdictional, non-constitutional error of law
will not support a collateral attack under § 2255
‘unless the claimed error constituted “a
fundamental defect which inherently results in a complete
miscarriage of justice.”'” United States
v. Peterson, 916 F.Supp.2d 102, 108 (D.D.C. 2013)
(citation omitted). “Sentencing Guidelines errors
ordinarily are not cognizable on a § 2255 motion,
” but may be so if they “result in a sentence
‘in excess of the maximum authorized by
law.'” Id. at 108-09. As there was no
Guideline calculation error here-much less one that led to an
impermissibly long sentence-no § 2255 action
Henriquez is pro se, the Court may construe his motion
instead as a motion for a sentence modification under 18
U.S.C. § 3582. See Schnitzler v. United States,
761 F.3d 33, 38 (D.C. Cir. 2014) (stating that district
courts have an “obligation to construe a pro se
plaintiff's filings liberally”). But this will get
Henriquez no further than would a § 2255 claim. Section
3582 permits modification if: (1) the Bureau of Prisons moves
to reduce a defendant's sentence; (2) Federal Rule of
Criminal Procedure 35 or the provisions of 18 U.S.C. §
3742 allow for correction; (3) the original sentence was
outside the Guidelines range; or (4) the defendant was
“sentenced to a term of imprisonment based on a
sentencing range that has subsequently been lowered by the
Sentencing Commission.” 18 U.S.C. § 3582(b)-(c).
The first three options do not apply to
Henriquez. In particular, § 3742 does not offer
him relief because his sentence was not the “result of
an incorrect application of the sentencing guidelines.”
18 U.S.C. § 3742(a)(2). The Court explicitly noted at
sentencing that Henriquez was not merely a mule, but rather
organized the drug sale at issue and performed many of the
acts necessary to further the conspiracy. See
Sentencing Tr. at 23. As Henriquez was not
“substantially less culpable than the average
participant in the criminal activity, ” U.S.S.G. §
3B1.2 note 3(C), the Court applied the Guidelines correctly
in not granting an adjustment. And the final option under
§ 3582 is unavailable to Henriquez, because his
sentencing range has not been lowered subsequent to his
sentencing; he was sentenced under a version of the
Guidelines that already included the clarifying factors added
by Amendment 794.
foregoing reasons, Henriquez's petition to correct his
sentence is DENIED.
 The maximum sentence authorized for
Henriquez's offense of conviction is 40 years.
See 21 U.S.C. §§ 841(b)(1)(B)(ii), 846.
The sixty-eight month sentence Henriquez received is well
within this limit.
 Federal Rule of Criminal Procedure 35
allows a court to correct a “clear error” in the
sentence within 14 days of sentencing, or else to reduce a
sentence for substantial assistance to the government upon a
government motion. Section 3742, meanwhile, allows a
defendant to petition for review of a sentence that is
greater than that specified in the applicable Guidelines
range, or that was imposed in violation of law, pursuant to
an incorrect application of the Guidelines, or for an offense
that is not subject to the Guidelines and that is plainly
unreasonable. See 18 U.S.C. § 3742(a).
Hernandez has not made claims under any of ...