The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
SUE ANN SALAZAR, )
)
Petitioner, )
)
v. ) Nos.: 3:21-CV-363-TAV-DCP
) 3:17-CR-091-TAV-DCP-1
UNITED STATES OF AMERICA, )
)
Respondent. )
MEMORANDUM OPINION
Petitioner Sue Ann Salazar has filed a motion to vacate, set aside, or correct her
sentence under 28 U.S.C. § 2255 [Doc. 1; Case No. 3:17-CR-91 (“Crim. Case”), Doc.
722].1 The government has responded in opposition [Doc. 6]. Because, based on the
record, it plainly appears that petitioner is not entitled to relief, it is not necessary to hold
an evidentiary hearing,2 and petitioner’s § 2255 motion [Doc. 1; Crim. Case, Doc. 722]
will be DENIED.
I. Background
Petitioner was indicted, along with several codefendants, in a superseding
indictment on charges of (1) conspiracy to distribute 50 grams or more of
methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A) (Count
1 All docket citations refer to the instant civil case number unless otherwise specified.
2 An evidentiary hearing is required on a § 2255 motion unless the motion, files, and record
conclusively show that the prisoner is not entitled to relief. See 28 U.S.C. § 2255(b). It is the
prisoner’s ultimate burden, however, to sustain his claims by a preponderance of the evidence. See
Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006). Accordingly, where “the record
conclusively shows that the petitioner is entitled to no relief,” a hearing is not required. Arredondo
v. United States, 178 F.3d 778, 782 (6th Cir. 1999) (citation omitted).
One); (2) aiding and abetting the possession with intent to distribute 50 grams or more of
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) and 18 U.S.C.
§ 2 (Count Two); (3) aiding and abetting the possession of a firearm in furtherance of drug
trafficking offenses in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2 (Count Three);
(4) being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2) (Count Four); and (5) possessing a firearm which was not registered to her in the
National Firearms Registration and Transfer Record in violation of 26 U.S.C. §§ 5861(d),
5845(a)(7), and 5871 (Counts Five, Six, and Seven) [Crim. Case, Doc. 18].
On January 9, 2018, petitioner entered a guilty plea to Counts One and Four of the
superseding indictment [Crim. Case, Doc. 223]. As part of the plea agreement, petitioner
agreed to the following facts:
Through the testimony of several witnesses, the United States would
demonstrate, beyond a reasonable doubt, that between January of 2016 and
October of 2017 in the Eastern District of Tennessee, and elsewhere, the
defendant did knowingly, intentionally, and without authority, conspire with
at least one other person to distribute at least 1.5 but less then 4.5 kilograms
of actual methamphetamine, a Schedule II controlled substance and the
defendant illegally possessed firearms.
During the conspiracy, the defendant obtained multi-ounce quantities of
methamphetamine from an unindicted co-conspirator, which the defendant
then distributed to various individuals, including co-defendants Korinna
Stephens, Billy Buchanan, Allen Michael Buchanan, Tabitha Taylor,
Brittany Talley, and unindicted co-conspirators, including Brittany Brown,
in quantities ranging from a quarter of an ounce to multiple ounces at a time.
On May 1, 2017, a confidential informant ordered an eight ball of
methamphetamine from co-defendant Taylor. Taylor and the confidential
informant eventually met with Allen Michael Buchanan, Brittany Talley, and
the defendant in the parking lot of a church on John Sevier Highway. At that
location, the confidential informant paid Taylor $270. Taylor turned the
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money over to the defendant and Allen Michael Buchanan provided
approximately 3.8 grams of methamphetamine to Taylor. Taylor took a part
of the methamphetamine out of the baggie, because it was only supposed to
weigh 3.5 grams and then provided that methamphetamine to the confidential
informant.
On May 22, 2017, law enforcement agents went to the defendant’s residence,
which she shared at the time with co-defendants Hilario Salazar, Allen
Michael Buchanan, and Talley, in pursuit of co-defendant Dakota Truslow,
who had escaped from jail. The agents observed multiple stolen vehicles
outside the residence and the defendant gave the agents permission to search
the residence. During the search, in the defendant and co-defendant Hilario
Salazar’s bedroom, agents located a bag containing approximately 115 grams
of methamphetamine, an Arms Co, Model 059, .22 caliber revolver, and
miscellaneous 9mm and .380 caliber ammunition. During the search of the
basement, agents located firearms, including a Hi-Point Model C9 semi-
automatic pistol, a Lorcin Model L25 .25 caliber semi-automatic pistol, a
Special Weapons Inc. Model SW5 9mm automatic rifle, a Vector Arms
Model HR4332 9mm automatic pistol, and a CCS Model 2000 suppressor.
On May 22, 2017, the defendant was advised of her rights and she gave a
statement to law enforcement agents. The defendant said that a co-defendant
had been obtaining methamphetamine from an unindicted co-conspirator and
that the defendant then began obtaining methamphetamine from the same
individual. The defendant said that she received approximately four ounces
of methamphetamine twice a month for a period of over a year. The
defendant said she paid, at the most, $3,700 for four ounces of
methamphetamine. The defendant admitted to distributing
methamphetamine to several individuals, including co-defendants. The
defendant said that she agreed to rent a hotel room for co-defendant Truslow
in exchange for the Vector Arms Model HR4332 9mm automatic pistol and
a CCS Model 2000 suppressor, which was located at the defendant’s
residence on May 22, 2017.
The defendant admits that she was convicted of the felony offense of Sale of
Oxycodone on September 16, 2013[,] in the Criminal/Circuit Court of
Jefferson County, Tennessee. The defendant agrees that the firearms in
Count Four of the indictment were examined by ATF Special Agent Bryan
Williams and they did travel in and affect interstate commerce. The
defendant admits to conspiring to distribute at least 1.5 but less than 4.5
kilograms of actual methamphetamine.
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[Crim Case, Doc. 213 ¶ 4(a)–(h)]. In consideration for the concessions the government
made in the plea agreement, petitioner agreed to waive her right to file a direct appeal,
unless appealing a sentence imposed above the sentencing guideline range determined by
the Court or above any mandatory minimum sentence deemed applicable by the Court,
whichever is greater [Id. ¶ 10(a)]. Further, petitioner voluntarily, knowingly, and
intentionally agreed not to file any motions or pleadings pursuant to 28 U.S.C. § 2255, or
otherwise collaterally attack her convictions or sentence, unless based on prosecutorial
misconduct or ineffective assistance of counsel [Id. ¶ 10(b)].
The presentence investigation report (“PSR”) calculated petitioner’s criminal
history score at three, but because petitioner committed the instant offense while under a
criminal justice sentence in the Criminal Court for Jefferson County, Tennessee, two
“status points” were added, resulting in a total of five criminal history points and a criminal
history category of III [Crim. Case, PSR ¶¶ 119–21]. With a total offense level of 37 and
a criminal history category of III, petitioner’s applicable guidelines range was 262 to 327
months’ imprisonment [Id. ¶ 136].
The Court sentenced petitioner on October 5, 2018, to 168 months’ imprisonment
for Count One and 120 months’ imprisonment for Count Four, to run concurrently,
followed by 10 years of supervised release [Crim. Case, Doc. 587].3 This sentence was
3 On July 31, 2024, the petitioner and the government moved jointly to reduce petitioner’s
sentence pursuant to 18 U.S.C. § 3582(c)(2) and in accordance with Amendment 821 to the United
States Sentencing Guidelines Manual [Crim Case, Doc. 882]. The Court granted this joint motion
on the basis of Amendment 821’s revision to section 4A1.1 which, when applied to petitioner’s
criminal history points, removed the two “status points” petitioner received at sentencing [Crim
4
below the applicable guideline range based on a government motion [Crim. Case, Sealed
Doc. 529]. Petitioner did not appeal her convictions or sentence. On July 8, 2019,
petitioner filed the instant § 2255 motion [Crim. Case, Doc. 722].
II. Legal Standard
The Court must vacate, set aside, or correct a prisoner’s sentence if it finds that “the
judgment was rendered without jurisdiction, or that the sentence imposed was not
authorized by law or otherwise open to collateral attack, or that there has been such a denial
or infringement of the constitutional rights of the prisoner as to render the judgment
vulnerable to collateral attack . . . .” 28 U.S.C. § 2255. To obtain relief under § 2255
because of a constitutional error, the error must be one of “constitutional magnitude which
had a substantial and injurious effect or influence on the proceedings.” Watson v. United
States, 165 F.3d 486, 488 (6th Cir. 1999) (citing Brecht v. Abrahamson, 507 U.S. 619, 637
(1993)). A § 2255 petitioner has the burden of proving that he is entitled to relief by a
preponderance of the evidence, Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006),
and must clear a significantly higher hurdle than would exist on direct appeal. United
States v. Frady, 456 U.S. 152, 166 (1982).
III. Analysis
Petitioner argues that her sentence for being a felon in possession in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2) should be vacated or set aside in light of the Supreme
Case, Doc. 884]. In accordance with the removal of the two “status points,” petitioner’s sentence
was reduced to 154 months’ imprisonment [Id.].
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Court’s decisions in United States v. Davis, 588 U.S. 445 (2019) and Rehaif v. United
States, 588 U.S. 225 (2019), both of which postdate her guilty plea [Doc. 1, pp. 1–2].
A. Davis Claim
Despite petitioner’s reliance, Davis does not impact petitioner’s conviction. As the
government states in its response [Doc. 6, p. 3], the Supreme Court in Davis held that 18
U.S.C. § 924(c)’s definition of a “violent felony” was unconstitutionally vague. However,
petitioner was not convicted of violating § 924(c) nor did her conviction or sentence under
§ 922(g)(1) turn upon the definition of “violent felony.” Accordingly, petitioner’s Davis
argument must be rejected as meritless. The Court will therefore turn to and review
petitioner’s remaining claim under Rehaif.
B. Rehaif Claim
Petitioner pleaded guilty to violating § 922(g)(1) and § 924(a)(2) in January 2018,
over a year before the Supreme Court decided Rehaif. The Supreme Court in Rehaif held
that, “in a prosecution under 18 U.S.C. § 922(g) and§ 924(a)(2), the Government must
prove both that the defendant knew he possessed a firearm and that he knew he belonged
to the relevant category of persons barred from possessing a firearm.” 588 U.S. at 237.
Here, the relevant category for petitioner is convicted felons, as listed in § 922(g)(1) and
charged in the superseding indictment [Crim. Case, Doc. 18, p. 3].
While petitioner cites to Rehaif in support of her request for this Court to vacate or
set aside her sentence under § 922(g)(1) and § 924(a)(2), for the reasons stated infra,
petitioner’s claim fails.
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1. Collateral Attack Waiver
First, as the government contends [Doc. 6, pp. 2–3], petitioner’s claim is waived
based on her plea agreement and subsequent colloquy before this Court. The Sixth Circuit
has held that “a defendant’s informed and voluntary waiver of the right to collaterally attack
a sentence” is enforceable. Watson, 165 F.3d at 489. Here, petitioner agreed to waive her
right to file any motion pursuant to § 2255 or otherwise collaterally attack her conviction
or sentence, unless based on grounds of prosecutorial misconduct or ineffective assistance
of counsel [Crim. Case, Doc. 213 ¶ 10(b)].
Petitioner has also raised no argument that her agreement to this waiver provision
was not knowing and voluntary. And at her change of plea hearing, pursuant to Federal
Rule of Criminal Procedure 11 and this Court’s standard practice, petitioner was
specifically informed of this waiver. The Court accepted petitioner’s guilty plea after she
agreed that she had reviewed the provisions of the plea agreement with her attorney and
that she understood the rights she was waiving by pleading guilty [See Crim. Case, Doc.
223]. “Solemn declarations in open court carry a strong presumption of verity[,]” and
“[t]he subsequent presentation of conclusory allegations . . . is subject to summary
dismissal, as are contentions that in the face of the record are wholly incredible.”
Blackledge v. Allison, 431 U.S. 63, 74 (1977). Furthermore, the Supreme Court’s decision
in Rehaif did not render petitioner’s waiver unenforceable. See Vowell v. United States,
938 F.3d 260, 267 (6th Cir. 2019) (citing United States v. Bradley, 400 F.3d 459, 463 (6th
Cir. 2005)) (stating that “a subsequent change in the law does not render an appellate
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waiver unknowing or involuntary, even if defendant or petitioner would not have agreed
to the waiver had he known about the subsequent change.”).
Given the terms of the plea agreement and petitioner’s statements at her change of
plea hearing, the Court finds that to the extent that petitioner’s claim raises issues beyond
ineffective assistance of counsel or prosecutorial misconduct, it is barred by the collateral
attack waiver in her plea agreement.4
2. Merits
Besides citing to Rehaif in her petition, petitioner does not make any argument as to
why her sentence under § 922(g)(1) and § 924(a)(2) should be vacated or set aside. And
specifically, petitioner makes no argument of prosecutorial misconduct or ineffective
assistance of counsel, the only grounds upon which she could proceed in a § 2255 petition.
The Court does note, however, that one of petitioner’s attached exhibits is an email
from what appears to be a legal research service [Doc. 1, pp. 1, 3–4]. This email discusses
the potential ramifications of the Supreme Court’s decision in Rehaif [Id.]. Particularly,
the email claims that based on Rehaif, prisoners who are currently serving sentences for
violating 18 U.S.C. § 922(g) may move under 28 U.S.C. § 2255 to have their convictions
vacated, and they will be entitled to relief if they can show:
4 The government also contends that, with the exception of a claim of ineffective assistance
of counsel, petitioner’s claim is procedurally defaulted because she failed to raise it on direct
appeal [Doc. 6, p. 3]. While the Court agrees that petitioner did not file a direct appeal, petitioner
was foreclosed from doing so given her plea agreement waiver, with a few limited exceptions [See
Crim. Case, Doc. 213 ¶ 10(b)]. But as relevant here, petitioner would have been foreclosed from
raising a knowledge-of felon-status argument on direct appeal.
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that they are actually innocent of violating § 922(g), which will be the case
if they did not know that they fell into one of the categories of persons to
whom the offense applies. If a prisoner asserts that he lacked that knowledge
and therefore was actually innocent, the district courts . . . may be required
to hold a hearing … and make a credibility determination as to the prisoner’s
subjective mental state at the time of the crime, which may have occurred
years in the past.
Id. Despite petitioner’s inclusion of this email and her inferred reliance on its speculation
of Rehaif’s practical effects, petitioner makes no such claim that she herself did not know
she was in a category of persons barred from possessing a firearm much less does she
produce any new evidence suggesting that she lacked the required knowledge about her
status as a felon.
Accordingly, having stated no valid claim of ineffective assistance of counsel or
prosecutorial misconduct, petitioner’s claim under Rehaif is DENIED.5
IV. Conclusion
For the reasons stated above, the Court finds that petitioner is not entitled to relief
pursuant to 28 U.S.C. § 2255, and her motion to vacate, set aside or correct sentence
[Doc. 1; Crim. Case, Doc. 722] will be DENIED, and this civil action will be
DISMISSED. A hearing is unnecessary in this case. The Court will CERTIFY that any
appeal from this action would not be taken in good faith and would be totally frivolous.
5 The Court also notes that even if this Court were to grant petitioner’s motion, her sentence
would remain the same. Petitioner was sentenced to 168 months as to Count One and 120 months
to Count Four to run concurrently, and as noted previously, this was reduced to 154 months’
imprisonment. If the Court vacated or set aside petitioner’s sentence for Count Four, as this is the
only count her petition applies to, petitioner would still have to face 154 months’ imprisonment as
to Count One.
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Therefore, this Court will DENY petitioner leave to proceed in forma pauperis on appeal.
See Fed. R. App. P. 24. Petitioner having failed to make a substantial showing of the denial
of a constitutional right, a certificate of appealability SHALL NOT ISSUE. 28 U.S.C.
§ 2253; Fed. R. App. P. 22(b). A separate judgment will enter.
ENTER:
s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE
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