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U.S. v. FUENTES

United States District Court, M.D. Pennsylvania


September 1, 2005.

UNITED STATES OF AMERICA,
v.
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.

  DISCUSSION:

  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 case.
20050901

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