United States District Court, M.D. Pennsylvania
September 1, 2005.
UNITED STATES OF AMERICA,
WANDA FUENTES Defendant.
The opinion of the court was delivered by: JOHN E. JONES, District Judge
MEMORANDUM AND ORDER
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Pending before the Court is a Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255 ("the Motion")
(doc. 165) filed by the defendant Wanda Fuentes ("Defendant" or
"Fuentes") on May 18, 2005. For the reasons that follow, the
Motion will be dismissed.
FACTUAL BACKGROUND/PROCEDURAL HISTORY:
The Motion stems from Fuentes's criminal conviction in this
Court. On June 25, 2003, Fuentes pled guilty to Count I of the
second superseding indictment charging her with a violation of
21 U.S.C. § 846, conspiracy to distribute in excess of 50 grams of
cocaine base and in excess of 100 grams of heroin. On May 17,
2004, this Court sentenced Fuentes to 120 months imprisonment to
be followed by five (5) years of supervised release. (See Rec. Doc. 158).
Defendant did not appeal her conviction to the Third Circuit
Court of Appeals.
In the Motion, Fuentes requests that this Court vacate her
sentence or resentence her after removing any and all
enhancements. Fuentes urges the Court to retroactively apply the
holding of United States v. Booker, 543 U.S. ___,
125 S. Ct. 738 (2005), to her case. The Third Circuit Court of Appeals
recently held that "Booker does not apply retroactively to
initial motions under § 2255 where the judgment was final as of
January 12, 2005, the date Booker issued." Lloyd v. United
States, 407 F.3d 608, 616 (3d Cir. 2005). Therefore, under the
preliminary review as provided in Rule 4(b) of the Rules
Governing Section 2255 proceedings for the United States District
Courts we will dismiss Fuentes's Motion.*fn1
NOW, THEREFORE, IT IS ORDERED THAT:
1. Fuentes's Motion to Vacate, Set Aside, or Correct
Sentence pursuant to 28 U.S.C. § 2255 (doc. 165) is
DISMISSED. 2. Fuentes's Request for Leave to Respond to any
Argument the Government may Submit in Opposition to
her § 2255 Motion (doc. 166) is denied as moot.
3. There is no basis for the issuance of a
certificate of appealability.
4. The Clerk is directed to close the file on this
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