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United States District Court, N.D. Illinois

February 13, 2004.


The opinion of the court was delivered by: DAVID COAR, District Judge


Defendant Eisenhauer Rodriguez's Motion for Review of Sentence Pursuant to Title 18 U.S.C. § 3742 and for Downward Departure Pursuant to U.S.S.G. Section 5K2 is before this court.

Rodriguez framed his motion as one brought pursuant to 18 U.S.C. § 3742, based upon his contentions that the sentence was imposed in violation of the law, was imposed as a result of incorrect application of the United States Sentencing Guidelines, and is greater than the maximum sentence provided for by the Guidelines. Rodriguez did not, in his motion or his supporting memorandum, further define or address his vague contentions in that regard.*fn1 Instead, the only substance of Rodriguez's submissions is his request for a downward departure on two grounds: (1) his "extraordinary efforts and post-conviction rehabilitation;" and (2) his status as a deportable alien. In furtherance of his motion, Rodriguez seeks an evidentiary hearing and the appointment of counsel pursuant to 18 U.S.C. § 3006A.

  For the following reasons, this court dismisses the motion in its entirety. Page 2

 I. Background

  On October 15, 1999, Rodriguez pled guilty to possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1). On February 2, 2000, this court sentenced Rodriguez to 70 months' imprisonment.

  Rodriguez filed a direct appeal on March 3, 2000 (No. 00-1574).*fn2 Subsequently, his appointed counsel filed a motion to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967). In his briefing on the motion, counsel identified two potential issues for appeal, both of which he believed to be frivolous. In his Rule 5 l(b) response, Rodriguez cited two additional potential grounds for appeal: (1) that the district court should have departed downward because his status as a deportable alien will likely cause his conditions of confinement to be more severe than those encountered by most inmates; and (2) that the district court erred by holding him accountable for a drug quantity greater than that involved in the offense of conviction (i.e., by including in its calculation of the quantity drugs that were part of the same course of conduct as the charged offense).

  The Seventh Circuit addressed in turn each of the four potential grounds for appeal and found that none would enable Rodriguez to prevail on direct appeal. Accordingly, on October II, 2000, it granted counsel's motion and dismissed Rodriguez's appeal, concluding that an appeal would be frivolous. See United States v. Rodriguez, No. 00-1574, 2000 U.S. App. LEXIS 25656 (7th Cir. Oct. 11, 2000). Rodriguez did not file a petition for certiorari to the United States Supreme Court. Page 3

  On July 6, 2001, Rodriguez filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 (No. 01 C 5231), articulating four grounds for relief. The two stated bases for Rodriguez's instant request for relief (i.e., his status as a deportable alien and his post-conviction rehabilitation efforts) were not included among them. Rodriguez subsequently filed a motion to withdraw his petition, which the court granted on September 13, 2001,*fn3

  Proceeding pro se, Rodriguez filed the instant motion on September 9, 2002, seeking review of his sentence and, specifically, a downward departure therein. As directed by the court, the government filed its response to Rodriguez's motion on December 2, 2002. However, the date designated by the court for Rodriguez to file his reply came and went without his filing any reply (and none has been filed, to date).

 II. Analysis

  18 U.S.C. § 3582 defines the circumstances under which district courts may modify sentences and otherwise prohibits district courts from doing so, unless "expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure." 18 U.S.C. § 3582(c)(1)(B). As an initial matter, none of the bases for modifying a sentence set forth in section 3582 is applicable in the present case (and Rodriguez does not contend otherwise). Moreover, the clear terms of Rule 35 indicate that it does not authorize the district court to review and/or modify Rodriguez's sentence at this juncture.

  Rodriguez purported to bring his motion pursuant to 18 U.S.C. § 3742. However, that Page 4 statute confers jurisdiction only upon the court of appeals to review a sentence, and not upon the district court. Because section 3742 does not grant jurisdiction to this court to entertain Rodriguez's motion, it must be dismissed.*fn4

  Notwithstanding that Rodriguez purported to bring his motion pursuant to 18 U.S.C. § 3742, he framed his claim concerning his status as a deportable alien as one for ineffective assistance of counsel. See Mem. p. 1 ("Counsel was well aware that Defendant is an alien. Inspite [sic] of this, Counsel failed to raise the issue of deportability and harsher conditions of confinement Defendant may experience as mitigating circumstances at sentencing. Defendant claims that this prejudicial ommission [sic] by Counsel constitutes a performance below accepted professional standards warranting resentencing."). Even if this court were to consider the entire motion brought by pro se Rodriguez as one brought pursuant to 28 U.S.C. § 2255, rather than the statute upon which he expressly relied, it would necessarily be procedurally barred.

  First and foremost, any request for relief pursuant to section 2255 would be time barred. The Seventh Circuit Court of Appeals affirmed Rodriguez's judgment of conviction on October 11, 2000. Rodriguez did not file a petition for certiorari, and the time in which he could have done so expired on or about January 9, 2001 (90 days after entry of the court of appeals' judgment). See S.Ct. Rule 13. Rodriguez filed the instant motion on September 9, 2002 — (far) more than one year after the judgment of conviction became final. See 28 U.S.C. § 2255, P 6; Page 5 Clay v. United States, 537 U.S. 522, 123 S.Ct. 1072 (2003). Accordingly, even construing Rodriguez's motion as one brought under section 2255, the motion would be time barred, mandating dismissal.*fn5

  With his submissions to this court, Rodriguez has neither cited nor suggested any valid statutory basis for the court to exercise jurisdiction over his request for relief and/or to revisit his sentence at this juncture, and, indeed, none exists.*fn6

 III. Conclusion

  For the foregoing reasons, Rodriguez's motion is dismissed in its entirety, with prejudice.

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