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United States v. Garcia

United States District Court, D. Minnesota

September 19, 2019

United States of America, Plaintiff/Respondent,
v.
Enrique Bernal Garcia, Defendant/Petitioner.

          Emily A. Polachek, Assistant United States Attorney, Counsel for Respondent.

          Petitioner, pro se.

          MEMORANDUM OPINION AND ORDER

          MICHAEL J. DAVIS JUDGE UNITED STATES DISTRICT COURT.

         This matter is before the Court upon Petitioner’s motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255. [Doc. No. 835]

         I. Background

         On January 14, 2010, Petitioner pleaded guilty to Count 1 of the Superseding Indictment which charged him with conspiracy to distribute and possess with intent to distribute 5 kilograms or more of cocaine and 50 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841 (a)(1), (b)(1)(A) and 846. On June 1, 2010, he was sentenced to a term of imprisonment of 210 months, which was the low end of the applicable guideline range of 210 to 262 months. Petitioner did not appeal his sentence.

         On November 7, 2014, Petitioner filed a motion for sentence reduction based on Amendment 782 to the United States Sentencing Guidelines, which revised the drug quantity table by lowering the penalties for certain drug offenses. [Doc. No. 742] As applied in Petitioner’s case, the Court found Petitioner’s total offense level was lowered to 34. At a criminal category II, the applicable range was determined to be 168 to 210 months. The Court then resentenced him to a term of 168 months. [Doc. No. 802]

         On November 13, 2017, Petitioner filed a second motion to reduce his sentence based on Amendment 782 to the Guidelines. By Order dated January 3, 2018, the Court denied the motion as Petitioner had already received a sentence reduction and was not entitled to further relief. [Doc. No. 812]

         On March 22, 2019, Petitioner filed the instant motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. Petitioner has asserted two grounds in his petition: 1) ineffective assistance of counsel based on counsel’s failure to object to a two point enhancement for a firearm found at a stash house and his residence and for failure to raise this issue on appeal; and 2) under the First Step Act, Petitioner asserts he is entitled to relief from “stacking” or enhancement of his sentence due to the assumption that he is accountable for a firearm found at the stash house or his residence.

         The government has filed a motion to dismiss the petition as untimely and for failure to assert a cognizable claim for relief. Petitioner has not responded to the government’s motion.

         II. Standard of Review

         Under 28 U.S.C. § 2255, “[a] prisoner in custody under sentence . . . claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence . . . or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). Section 2255 is intended to provide federal prisoners a remedy for jurisdictional or constitutional errors. Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir. 2011). It is not intended to be a substitute for appeal or to relitigate matters decided on appeal. See Bousley v. United States, 523 U.S. 614, 621 (1998); Davis v. United States, 417 U.S. 333, 346-47 (1974)).

Relief under 28 U.S.C. ยง 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice. A movant may not raise constitutional issues for the first time on collateral review without ...

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