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U.S. v. GARCIA

May 23, 2002

UNITED STATES OF AMERICA,
V.
MANUEL GARCIA, DEFENDANT.



The opinion of the court was delivered by: Jerome B. Simandle, United States District Court Judge.

OPINION

BACKGROUND

On November 9, 1993, a grand jury sitting in Newark, New Jersey, returned a four-count indictment against defendant Manuel Garcia, and co-defendants Richard Balter, Kenneth Cutler, and Chris Oscar DeJesus for the murder of Robert Cohen. (Indictment, 11/9/93.) Count One of the indictment charged Balter, Cutler, Garcia, and DeJesus with the commission of murder for hire, in violation of 18 U.S.C. § 1958 and 2, and Count Two charged Balter and Cutler with mail fraud, in violation of 18 U.S.C. § 1341. (Id.) On January 25, 1994, a federal grand jury sitting in Newark, New Jersey, returned a superseding indictment, expanding the time frame for the murder for hire charge and supplementing the mail fraud charges against Balter and Cutler. (Superseding Indictment, 1/25/94.) On September 29, 1994, Garcia was convicted after a jury trial and was sentenced to life imprisonment. (Judgment, 10/4/94.) Judgment was entered on October 4, 1994. (Id.)
Defendant filed a direct appeal of his conviction, alleging that the district court erred by (1) impermissibly admitting evidence showing criminal propensity that had a cumulatively prejudicial effect; and (2) denying defendant's motion for severance. (Id.) On July 29, 1996, the United States Court of Appeals for the Third Circuit affirmed this Court's judgment. (United States v. Garcia, No. 94-5647 (3d Cir. July 29, 1996) (unpublished)). The convictions of the co-defendants were also affirmed in United States v. Balter, 91 F.3d 427 (3d Cir. 1996).
Mr. Garcia filed a petition in this Court for habeas corpus relief under 28 U.S.C. § 2255 on June 2, 1997. (Docket, Garcia v. United States, No. 97-2861.) On July 29, 1998, this Court denied Mr. Garcia's habeas petition. (Id.) On August 7, 1998, defendant filed an appeal with the Third Circuit. (Id.) On September 15, 1998, this Court denied Mr. Garcia a certificate of appealability. (Id.) On June 4, 1999, the Third Circuit subsequently denied Mr. Garcia's application for a certificate of appealability on grounds that he was procedurally barred from presenting his claims. (Id.)

On August 13, 2001, defendant filed the instant motion for reduction of sentence.

DISCUSSION

Motion for Reduction of Sentence

Defendant moves for reduction of sentence, claiming that Amendment 591, effective November 1, 2000, requires that he be sentenced to 121-151 months imprisonment under a base offense level of 32 as provided by U.S.S.G. § 2E1.4, rather than life imprisonment. The United States argues that Garcia's application is procedurally barred because it should be construed as a successive motion to correct or vacate a sentence under 28 U.S.C. § 2255; that Amendment 591 is not retroactive and is therefore inapplicable to modify defendant's sentence; and that even if the current amended guidelines were applied, their application would not change Mr. Garcia's sentence.
A. Jurisdiction

A motion seeking to vacate, correct or set aside a sentence is brought under 28 U.S.C. § 2255.*fn1 28 U.S.C. § 2255 provides in relevant part:

A prisoner in custody under sentence of a court established by Act of Congress 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 that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral ...

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