U.S. v. Garcia, 98-4860
| Decision Date | 22 July 1999 |
| Docket Number | No. 98-4860,98-4860 |
| Citation | 181 F.3d 1274 |
| Parties | (11th Cir. 1999) UNITED STATES of America, Plaintiff-Appellee, v. Rigoberto DeJesus GARCIA, Defendant-Appellant. Non-Argument Calendar. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Appeal from the United States District Court for the Southern District of Florida. No. 92-222-CR-SH, Shelby Highsmith, Judge.
Before ANDERSON, Chief Judge, and TJOFLAT and DUBINA, Circuit Judges.
In December 1993, appellant, having pled guilty to a two-count indictment charging him with conspiracy to possess with intent to distribute cocaine and the substantive possession offense, was sentenced to concurrent terms of 151 months' imprisonment and five years supervised release. He did not appeal his sentences and is presently incarcerated.
In May 1996, appellant moved the district court pursuant to 28 U.S.C. 2255 (1994) to vacate his sentences, contending that he had received ineffective assistance of counsel from his trial attorney because, at his sentencing hearing, his attorney failed (1) to seek an adjustment of his base offense level to reflect a mitigating role in the offense and (2) to argue that the amount of cocaine involved in the conspiracy (which the court used to establish appellant's base offense level) was not reasonably foreseeable to appellant. The court denied appellant's motion, and he did not appeal its ruling.
In May 1998, appellant returned to the district court, this time with a petition for a writ of error coram nobis. See 28 U.S.C. 1651(a) (1994). In his petition, appellant asked the court to vacate his sentence, and grant a new sentencing hearing, on the ground that, at in fashioning his sentences, the court erroneously enhanced his base offense level for obstruction of justice. The court denied the writ, whereupon appellant lodged this appeal.
Coram nobis relief is unavailable to a person, such as the appellant, who is still in custody. United States v. Brown, 117 F.3d 471, 475 (11th Cir.1997). Accordingly the district court properly denied appellant's application for the writ. The question arises as to whether we could treat appellant's application as a motion for relief under 28 U.S.C. 2255 (). A recent amendment to 28 U.S.C. 2244(b)(3)(A) (West Supp.1998), however, precludes us from doing so.
As noted, appellant has already made one 2255 attack on his sentence; thus, his application for coram nobis relief, if treated as a motion filed pursuant to 2255, would be successive. Section 2244(b)(3)(A), as amended by 106 of the Antiterrorism and Effective Death Penalty Act of...
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