United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp Chief United States District Judge
matter is before the court for initial review of Filing No.
184, a Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody
(“§ 2255 motion”) filed by the Defendant,
Victor Sanchez-Garcia (“Sanchez-Garcia”) pursuant
to Johnson v. United States, 135 S.Ct. 2551 (2015),
as well as his motions to appoint counsel (Filing No. 187)
and request for status of this matter (Filing No. 189). Also
before the Court is a Motion to Withdraw as Attorney (Filing
No. 188) filed by the Federal Public Defender
4(b) of the Rules Governing Section 2255 Proceedings for the
United States District Courts requires initial review of a
defendant’s § 2255 motion. Rule 4(b) states:
The judge who receives the motion must promptly examine it.
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. If the motion is
not dismissed, the judge must order the United States
attorney to file an answer, motion, or other response within
a fixed time, or to take other action the judge may order.
October 18, 2004, a jury found Sanchez-Garcia guilty as to
Count II of the Superseding Indictment (charging Defendant
with being an alien illegally in the United States while
knowingly possessing a firearm). (Filing No. 55). On May 20,
2005, a jury found Defendant guilty as to Counts I, II and
III of the Second Superseding Indictment (charging Defendant
with conspiracy to distribute methamphetamine, possession
with intent to distribute methamphetamine, and possession of
a firearm in furtherance of a drug trafficking crime).
(Filing No. 101). The Court sentenced Defendant to the
custody of the Bureau of Prisons for a term of 120 months on
Count II of the Superseding Indictment; 240 months on Counts
I and II of the second Superseding Indictment (to run
concurrent with Count II of the first Superseding
Indictment); 60 months on Count III of the second Superseding
Indictment (to be served consecutive to the term of
imprisonment imposed on the other Counts); a supervised
release term of three years on Count II of the first
Superseding Indictment; ten years of supervised release on
both Counts I and II of the second Superseding Indictment;
and five years of supervised release on Count III of the
second Superseding Indictment (all to run concurrent).
(Filing No. 124).
Eighth Circuit Court of Appeals affirmed his conviction on
September 5, 2006. (Filing No. 149). Sanchez-Garcia did not
file a writ of certiorari to the United States Supreme Court.
December 30, 2008, Sanchez-Garcia filed a motion, requesting
an extension of time to file a late § 2255 Motion.
(Filing No. 156). The Court ruled that the motion for
extension was not timely, and facts and circumstances
surrounding his case did not warrant application of the
doctrine of equitable tolling, and that motion was denied.
(Filing No. 157). The Eighth Circuit Court of Appeals denied
the Defendant’s application for a Certificate of
Appealabilty and leave to proceed in forma pauperis on March
30, 2009. (Filing No. 168).
October 14, 2014, at Filing No. 171, Sanchez-Garcia moved the
court for a reduction in sentence seeking relief under
Amendment 782 to the United States Sentencing Guidelines and
for appointment of counsel. Because Sanchez-Garcia was
sentenced to the statutory mandatory minimum, and therefore
not eligible for a reduction, his motion was denied (Filing
No.176). On February 9, 2016, the Eighth Circuit Court of
Appeals affirmed the court’s decision to deny
Sanchez-Garcia’s motion to reduce his sentence. (Filing
Federal Public Defender reviewed Sanchez-Garcia’s case
and determined that the Defendant had no prior conviction
that was used to enhance his sentence, and confirmed that
Sanchez-Garcia was sentenced to the statutory mandatory
minium terms. The Federal Public Defender concluded that the
Johnson decision is not applicable. The Court has
reviewed this matter, including Sanchez-Garcia’s
Presentence Investigation Report (“PSR”)
(“Filing No. 128). The PSR reveals that the Defendant
did not receive a sentencing enhancement due to a prior crime
IT IS ORDERED:
Court grants the Defendant’s motion for status (Filing
Court has completed initial review of the Defendant’s
Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody
(“§ 2255 motion”) (Filing No. 184);
Court summarily denies the Defendant's § 2255
separate Judgment will be issued denying the ...