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 Janet F.
King's Final Report and Recommendation 
(“R&R”). The R&R recommends the Court
dismiss as untimely Movant Juan Manuel Santana Baez's
(“Movant's) 28 U.S.C. § 2255 motion  to
challenge the constitutionality of his conviction and
sentence (“Section 2255 Motion”). Also before the
Court are Movant's Objections to the R&R .
pleaded guilty to conspiracy to distribute and possess with
intent to distribute cocaine, in violation of 21 U.S.C.
§§ 846 and 841(a)(1), (b)(1)(A)(ii), a crime
subject to up to a life term of imprisonment. (Indictment 
at 1-2; [176.1] at 3). On December 15, 2014, the Court
imposed a seventy-month term of imprisonment. (). The
record shows Movant did not file a direct appeal. On July 25,
2016, Movant filed his Section 2255 Motion. Movant asserts
that he is entitled to a two-level role reduction based on
the November 15, 2015, sentencing guidelines amendment that
amended the commentary to U.S.S.G § 3B1
(“Amendment 794”). Movant asserts that his
Section 2255 motion was timely filed within one-year of the
amendment. (Mot. to Vacate at 1).
September 1, 2016, the Magistrate Judge issued her R&R.
The Magistrate Judge found that Movant's Section 2255
Motion was due by December 29, 2015, and his Motion is
untimely by over six months. The Magistrate Judge found that
equitable tolling does not apply. She also determined that
Movant's claim is not cognizable under Section 2255.
Accordingly, the Magistrate Judge recommends that the Court
dismiss as untimely Movant's Section 2255 Motion, and
that a certificate of appealability (“COA”) be
September 12, 2016, Movant filed his Objections. Movant
argues that equitable tolling applies, because Amendment 794
“did not go into effect until November 15, 2015, Eleven
[sic] months after Movant was sentenced.” (Obj. at 1).
He claims he did not receive notice of Amendment 794 until
July 10, 2016. (Id.).
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 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).
Court first conducts its plain error review of those portions
of the R&R to which Movant does not object. See
Slay, 714 F.2d at 1095. A Section 2255 motion is subject
to the one-year statute of limitations provided by 28 U.S.C.
§ 2255(f). The one-year period runs from the latest of
the dates on which (1) Movant's convictions became final;
(2) a State impediment to filing a motion to vacate was
removed; (3) a constitutional right on which Movant relies
was recognized by the United States Supreme Court, if the
right has been newly recognized and made retroactively
applicable to cases on collateral review; or (4) Movant, with
due diligence, could have discovered the facts supporting his
claims. See 28 U.S.C. § 2255(f)(1)-(4).
Magistrate Judge found that, because Movant did not directly
appeal, his federal conviction became final on December 29,
2014, fourteen days after the entry of judgment on December
15, 2014. See Fed. R. App. P. 4(b)(1)(A). Under
Section 2255(f)(1), Movant's Section 2255 Motion was due
by December 29, 2015, and his Motion is untimely by over six
months. The Magistrate Judge found that Section 2255(f)(2)
does not apply, because Movant does not allege any unlawful
government impediment that prevented him from filing his
Section 2255 Motion earlier. The Magistrate Judge next
determined that Section 2255(f)(3) does not apply, because
Movant does not present any right newly recognized by the
United States Supreme Court. The Magistrate Judge found that
Section 2255(f)(4) does not apply because a guidelines
amendment does not qualify as a supporting fact to a claim
for relief. See Madaio v. United States, 397 F.
App'x 568, 570 (11th Cir. 2010) (“Since Section
2255(f)(4) is predicated on the date that ‘facts
supporting the claim' could have been discovered, the
discovery of a new court legal opinion, as opposed to new
factual information affecting the claim, does not trigger the
limitations period.” (emphasis in original) (quoting
§ 2255(f)(4))); Thomas v. United States, No.
2:09-CR-00277-RDP-JE, 2014 WL 4715861, at *4 (N.D. Ala. Sept.
22, 2014) (“The limitations period of § 2255(f)(4)
is triggered by the actual or imputed discovery of the
important facts underlying a claim, not the defendant's
recognition of the legal significance of those
facts.”); Seals v. United States, No.
08-cv-80, 2009 WL 1108482, at *2 (S.D. Ill. Apr. 24, 2009).
The Court finds no plain error in these findings and
recommendations. See Slay, 714 F.2d at 1095.
Magistrate Judge found that Movant does not show that he is
entitled to equitable tolling, because a change or amendment
to existing sentencing guidelines does not constitute an
extraordinary circumstance justifying equitable tolling of
the AEDPA statute of limitations. Movant objects to this
finding, arguing that Amendment 794 “did not go into
effect until November 15, 2015, Eleven [sic] months after
Movant was sentenced.” (Obj. at 1). He claims he did
not receive notice of Amendment 794 until July 10, 2016.
(Id.). AEDPA's one-year statute of limitations
is subject to equitable tolling if the petitioner
“shows (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance
stood in his way and prevented timely filing.” San
Martin v. McNeil, 633 F.3d 1257, 1267 (11th Cir. 2011)
(quoting Holland v. Florida, 130 S.Ct. 2549, 2562
(2010)) (internal quotation marks omitted). Movant does not
provide any authority to support that changes or amendments
to existing sentencing guidelines constitute an extraordinary
circumstance justifying equitable tolling of the AEDPA
statute of limitations. See United States v. Snyder,
No. 1:99-cr-11, 2008 WL 370663, at *2 (N.D. Ind. Feb. 11,
2008). The Court finds Movant is not entitled to equitable
tolling of the one-year statute of limitations, and his
Section 2255 Motion is dismissed as untimely.
equitable tolling applied, Amendment 794 does not entitle
Movant to resentencing. The Amendment merely “clarified
the factors to consider for a minor-role adjustment”-it
did not substantively change Section 3B1.2. United States
v. Casas, 632 F. App'x 1003, 1004 (11th Cir. 2015);
Sapp v. United States, 2016 WL 4744159, at *1 (S.D.
Ga. Sept. 12, 2016); see also United States v.
Quintero-Leyva, 823 F.3d 519, 523 (9th Cir. 2016)
(Amendment 794 may be applied retroactively on direct
appeals). Indeed, the Sentencing Commission specifically
explained that Amendment 794 is intended only as a clarifying
amendment. U.S.S.G. Supp. App. ...