MODESTO OZUNA v. UNITED STATES OF AMERICA (2017)

ORDER

Modesto Ozuna has filed a notice of appeal from the denial of his motion under 28 U.S.C. § 2255, which we construe as an application for a certificate of appealability. This court has reviewed the final order of the district court and the record on appeal. We find no substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). Section 2255 is not a basis for relief for guideline errors, and there was no reason for the district judge to construe the papers as a motion to reduce under § 3582(c) because Amendment 794 is not retroactive and did not reduce a guideline. It simply clarified when to apply a guideline that lowers a range.

Accordingly, the request for a certificate of appealability is DENIED. Ozuna's motion for appointment of counsel is DENIED.