U.S. v. Mendez

Full title: U.S. v. JUAN MENDEZ

Court: United States District Court, E.D. Pennsylvania

Date published: Dec 19, 2003

Criminal No. 00-537, Civil No. 03-5711 (E.D. Pa. Dec. 19, 2003)

Opinion

Criminal No. 00-537, Civil No. 03-5711.

December 19, 2003

MEMORANDUM

RONALD BUCKWALTER, District Judge

The defendant has filed:

(1) A motion for reduction of sentence (Docket No. 87);

(2) A motion for return of property pursuant to Rule 41(e) § 1331 (Docket No. 88);

(3) A motion to file section 2255 out of time (Docket No. 96); and

(4) A § 2255 motion (Docket No. 97).

Initially, the motion for reduction is based upon the faulty premise that defendant received an adjustment for mitigating role. He did not. The presentence report which the court accepted contained no such adjustment. Instead, it correctly computed the offense level at 34 and the criminal history category at IV for a guideline provision of life. This defendant, based upon a 5K1.1 motion being granted, received a sentence of 100 months. He is not eligible for any reduction.

The guideline amendment applicable to mitigating role under § 3B.12 is, as the government points out, not retroactive in any event.

The defendant's motion for return of property is without merit and does not require a hearing. The motion was promptly answered by the government showing that the property in question was properly seized and forfeited. In response to the government's answer, the defendant filed a reply in which he alleged that in the plea agreement, the government promised to dismiss the forfeiture count 4 (which it subsequently did) and return the $6600 and the 1995 Nissan Maxima (the subjects of the earlier motion for return of property), which it did not. However, no such promise appears in the written plea agreement.

Moreover, the presentence report, verified in a signed financial statement dated August 22, 2001 by defendant, shows only assets of real estate valued at $4000 and 2 Chevrolet automobiles valued in the aggregate at $1600. It is clear that defendant's allegation that the government promised to return the cash and 1995 Maxima could not be proven by a preponderance of the evidence, which would consist of defendant's word against the facts that (1) the government sent notice to him and his attorney of the administrative forfeiture (to which neither he or his attorney responded); (2) no promise appears in the written plea agreement relative to the cash and the 1995 Nissan Maxima; and (3) the defendant failed to even list those items which he claims belong to him in his verified financial statement.

Finally, defendant's 2255 is untimely as he concedes. The date of the judgment of conviction (from which he did not appeal) is December 18, 2001. He filed his 2255 on October 15, 2003.

He contends that there was an impediment created by the government and that the facts supporting his claim could not have been discovered sooner, but these contentions are simply not correct. An order follows.

ORDER

AND NOW, this 19^th day of December, 2003, it is hereby ORDERED that

(1) Defendant's motion for reduction of sentence (Docket No. 87) is DENIED;

(2) Defendant's motion for return of property pursuant to Rule 41(e) § 1331 (Docket No. 88) is DENIED;

(3) Defendant's motion to file section 2255 out of time (Docket No. 96) is DENIED; and

(4) Defendant's § 2255 motion (Docket No. 97) is DISMISSED as untimely filed.

The defendant has made no substantial showing of a denial of any constitutional right, so that no certificate of appealability will issue as to the dismissal of the 2255 motion.