Opinion
CASE NO. 8:04-cr-297-T-23TGW.
June 15, 2010
ORDER
Casiano Baraona-Estupinan moves (Doc. 259) (a) for a reduction of sentence and (b) for an order "direct[ing] the government to file a motion for reduction of sentence based on the substantial assistance."
Baraona-Estupinan attaches a statement by co-defendant Efren Caizedo-Salazar, which states that Caizedo-Salazar cooperated post-sentencing with the understanding that his cooperation would benefit himself and co-defendants Alberto Herrera-Obando and Casiano Baraona-Estupinan. Baraona-Estupinan also attaches a copy of supposed undated, unanswered correspondence to the United States Attorney inquiring about "such agreement" and requesting assistance in asserting his "claim."
Although the statement contains the words "Sworn Affidavit" near the top of the first page, the document contains no notarial or witness statement to that effect.
Baraona-Estupinan alleges only that the United States has not moved for a reduction of his sentence. He alleges neither an "unconstitutional motive" nor any motive "not rationally related to any legitimate governmental end." Wade v. United States, 504 U.S. 181, 185-86 (1992); United States v. Stamboulides, 147 Fed. Appx. 65 (11th Cir. 2005). The motion to compel the United States to file a Rule 35 motion is DENIED. United States v. Hill, No. 06-14029-CR, 2008 WL 728936 (S.D. Fla. Mar. 18, 2008) (Moore, J.); United States v. Smith, No. 2:02-cr-72, 2008 WL 558714 (M.D. Fla. Feb. 25, 2008) (Steele, J.).
Finally, the defendant seeks a two level reduction because his status as a deportable alien renders him ineligible to participate in certain prison programs. The claim is without merit. United States v. Maung, 320 F.3d 1305 (11th Cir. 2003);United States v. Lahoud, 178 Fed.Appx. 926 (11th Cir. 2006). Additionally, the defendant's judgment is final. Because the motion identifies no "error" in the judgment within the purview of Rules 35 and 36 of the Federal Rules of Criminal Procedure, the court is without authority to alter or amend the judgment. The motion for a reduction of sentence is DENIED.
ORDERED in Tampa, Florida.