Opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

CHRISTHIAN EDUARDO BAILON

DELGADO,

Movant,

v. Case No. 8:25-cv-3034-WFJ-CPT

Crim. Case No. 8:19-cr-234-WFJ-CPT

UNITED STATES OF AMERICA,

Respondent.

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ORDER

Christhian Eduardo Bailon Delgado is a federal prisoner serving a 168-month

sentence for conspiracy to possess with intent to distribute cocaine while on board a vessel

subject to the jurisdiction of the United States. (Crim. Doc. 72). He initiated this action by

filing a pro se motion to vacate sentence under 28 U.S.C. § 2255. (Civ. Doc. 1). Mr.

Delgado’s sole claim for relief is that he is entitled to resentencing under a lower guidelines

range because of recent amendments to the Sentencing Guidelines. (Id. at 1). After careful

review, the Court concludes that the § 2255 motion must be DENIED without prejudice.

See Rule 4(b), Rules Governing Section 2255 Cases (“If it plainly appears from the motion,

any attached exhibits, and the record of prior proceedings that the moving party is not

entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving

party.”).

Mr. Delgado seeks relief under guideline amendments that became effective on

November 1, 2025. (Civ. Doc. 1 at 1). As relevant here, the United States Sentencing

Commission “amended [USSG] § 2D1.1(e)(2)(B)’s special instructions [to] expand the

circumstances under which [a mitigating-role adjustment] is warranted in drug offenses.”

United States v. Maciel, 789 F. Supp. 3d 934, 936 (S.D. Cal. 2025). The revised guidelines

state, among other things, that a mitigating-role adjustment “is generally warranted if the

defendant’s primary function in the offense was performing a low-level trafficking

function.” USSG § 2D1.1(e)(2)(B). In his motion, Mr. Delgado seeks “retroactive”

application of these amendments to his guideline range. (Civ. Doc. 1 at 1).

Mr. Delgado cannot pursue his guideline-based claim under § 2255. The

amendments on which he relies have yet to be made retroactive.1 See United States v. Kuot,

No. 4:20-cr-3130, 2025 WL 3079996, at *1 & n.1 (D. Neb. Nov. 3, 2025) (noting that

recent guideline amendments regarding “mitigating role adjustments in drug trafficking

cases” have not “been applied retroactively yet”); see also USSG § 1B1.10. Section 2255

“cannot be used to make retroactive a guideline amendment that is not retroactive.” United

States v. Gonzalez, No. 5:12-cr-9-RH-HTC, 2019 WL 2724337, at *1 (N.D. Fla. June 29,

2019); see also United States v. Pineda, No. 8:16-cv-2211-SDM-AAS, 2016 WL 4814804,

at *1 (M.D. Fla. Sept. 14, 2016) (denying relief under § 2255 because guideline amendment

1 In July 2025, the Sentencing Commission held a public hearing on “whether to designate as retroactive

certain 2025 guideline amendments,” including the mitigating-role amendment at issue here. United States

Sentencing Commission, Public Hearing on Retroactivity, https://www.ussc.gov/policymaking/meetings-

hearings/public-hearing-july-16-2025 (last visited November 6, 2025).

did not “appl[y] retroactively on collateral review’). Therefore, Mr. Delgado is not entitled

to relief under § 2255.

If the Sentencing Commission elects to give retroactive effect to the relevant

guideline amendments, Mr. Delgado may at that point file a motion under 18 U.S.C. §

3582(c) in his criminal case. See Pate v. United States, No. 1:18-cr-8, 2024 WL 3258198,

at *4 (S.D. Ga. July 1, 2024) (noting that “the proper way to request [a sentence] reduction

[based on a retroactive guideline amendment] is not § 2255, but instead by motion .. .

under 18 U.S.C. § 3582(c)(2) for modification of [the] sentence”’); Jimenez v. United States,

No. 17-cv-768-JLL, 2017 WL 1362858, at *2 (D.N.J. Apr. 10, 2017) (“[A] motion for

resentencing based on amendments to the Guidelines is not appropriately brought in a §

2255 motion [but instead should be brought by filing] a motion under 18 U.S.C. §

3582(c)(2) in [the petitioner’s] criminal case.’’).

Accordingly, Mr. Delgado’s motion to vacate under § 2255, (Civ. Doc. 1), is

DENIED without prejudice. The Clerk is directed to enter judgment against Mr. Delgado,

to CLOSE this case, and to enter a copy of this order in the criminal case. Because Mr.

Delgado fails to make “a substantial showing of the denial of a constitutional right,” a

certificate of appealability and leave to appeal in forma pauperis are DENIED. 28 U.S.C.

§ 2253(c)(2).

DONE and ORDERED in Tampa, Florida, on November 6, 2025.

mee

UNITED STATES DISTRICT JUDGE

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