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United States of America v. Manuel Puentes-Garcia

November 16, 2012

UNITED STATES OF AMERICA, PLAINTIFF,
v.
MANUEL PUENTES-GARCIA, DEFENDANT.



The opinion of the court was delivered by: J. Phil Gilbert District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on defendant Manuel Puentes-Garcia's motion for downward departure under the fast-track guidelines (Doc. 27). In an order dated August 27, 2012, the court indicated to Puentes-Garcia that it was inclined to recharacterize his motion as pursuant to 28 U.S.C. § 2255 because the relief he seeks is only available through such a motion. The Court did not so construe the motion at the time because it was not clear that Puentes-Garcia intended to invoke § 2255 and its restriction on filing second or successive § 2255 motions. The Court warned Puentes-Garcia of the consequences of filing a § 2255 motion and warned him that if he did not file a motion to withdraw his pending motion on or before September 10, 2012, the Court would construe it as a § 2255 motion and Puentes-Garcia would then be subject to the second or successive filing requirements contained in § 2255. Puentes-Garcia has failed to file a motion withdrawing his pending motion. Since Puentes-Garcia has not moved to withdraw his pending motion (Doc. 27), the Court hereby recharacterizes it as a § 2255 motion as it warned Puentes-Garcia it would do. The Court further DIRECTS the Clerk of Court to file it as such and finds that the motion (Doc. 27) is MOOT to the extent that it remains pending in this case.

IT IS SO ORDERED.

J. Phil Gilbert

20121116

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