United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on Magistrate Judge John K.
Larkins III's Final Report and Recommendation 
(“R&R”). The R&R recommends the Court
deny Movant Alberto Jimenez-Najera's
(“Movant”) “application for authorization
to file a second or successive motion under 28 U.S.C. §
2255”  (“Application”).
2004, a jury in this Court found Movant guilty of: (1)
conspiring to possess with intent to distribute at least five
kilograms of cocaine; (2) possession with intent to
distribute at least five kilograms of cocaine; and (3)
carrying a firearm during and in relation to a drug
trafficking crime, i.e., during and in relation to the first
two crimes. (, ). In 2005, the Court sentenced Movant
to 151 months' imprisonment for the drug crimes and an
additional five years' imprisonment, as required by 18
U.S.C. § 924(c), for the firearm crime. (). The
court of appeals affirmed the judgment of conviction.
(). In 2015, the Court reduced Movant's sentence for
the drug crimes from 151 to 121 months' imprisonment, but
did not change the consecutive five-year sentence for the
firearm crime. ().
30, 2016, Movant filed his Application in both this Court and
the United States Court of Appeals for the Eleventh Circuit,
and he listed the Eleventh Circuit in the caption of the
Application. Movant states in the Application that he was
wrongly sentenced under 18 U.S.C. § 924(c). He claims
that he is entitled to relief under Section 2255 pursuant to
Johnson v. United States, 135 S.Ct. 2551 (2015).
Movant sought relief under Section 2255, on July 13, 2016,
the Magistrate Judge told Movant that the Court intended to
recharacterize his Application as a Section 2255 motion.
(). The Court warned Movant of the consequences of such
recharacterization and gave him an opportunity to withdraw
the motion-if he did not want the Court to treat it as a
§ 2255 motion-or amend it to include other claims.
(Id.); see Castro v. United States, 540
U.S. 375, 377 (2003) (requiring courts to warn litigants and
provide those options before recharacterizing a filing as a
first Section 2255 motion). The Court gave Movant thirty
days, until August 12, 2016, to inform the Court if he wanted
to withdraw or amend the filing. (Id.). Movant did
not file a response to the Court's Order. The deadline
for compliance passed, and the Magistrate Judge thus
recharacterized Movant's application as a Section 2255
motion and reviewed its merits.
August 31, 2016, the Magistrate Judge issued his R&R. The
Magistrate Judge found that Movant's sentence was not
increased under the ACCA-the sole basis upon which Movant
seeks relief-and thus Johnson does not apply, and
Movant is not entitled to relief under Section 2255. Movant
did not file any objections to the R&R.
conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or
modify a magistrate judge's report and recommendation. 28
U.S.C. § 636(b)(1); Williams v. Wainwright, 681
F.2d 732, 732 (11th Cir. 1982) (per curiam). A district judge
“shall make a de novo determination of those portions
of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). Where, as here, no party has objected to
the report and recommendation, the Court conducts only a
plain error review of the record. United States v.
Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam).
2015, the Supreme Court decided Johnson, which was a
case concerning federal prison sentences enhanced under the
Armed Career Criminal Act (the “ACCA”).
Johnson, 135 S.Ct. at 2555. The ACCA applies only to
persons convicted in federal court of possessing a firearm
after having been convicted of a felony. 18 U.S.C. §
924(e). Those convicted of that crime and who have three
prior convictions for either serious drug offenses or violent
felonies face an increased sentence under the ACCA.
Id. The Supreme Court held that the residual clause
of the ACCA's definition of “violent ...