IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : CRIMINAL ACTION

:

v. :

:

FERNANDO GARCIA : NO. 04-662-1

MEMORANDUM

Bartle, J. January 10, 2012

Before the court is the motion of Fernando Garcia

("Garcia") for a writ of audita querela and for appointment of

counsel.

On May 11, 2005, a jury found Garcia guilty of: (1)

one count of distribution, and aiding and abetting the

distribution, of more than 500 grams of cocaine, in violation of

21 U.S.C. § 841(a)(1); and (2) one count of distribution, and

aiding and abetting the distribution, of more than 500 grams of

cocaine near a school, in violation of 21 U.S.C. § 860(a). 

Prior to trial, the government filed an information

charging a prior felony drug conviction pursuant to 21 U.S.C.

§ 851. The information was based on Garcia's 1986 conviction in

a New York state court for possession of a controlled substance

in the second degree. See N.Y. Penal Law § 220.18. Based on

this prior offense, Garcia faced an increased mandatory minimum

penalty of 120 months' imprisonment instead of the mandatory

minimum of 60 months' imprisonment that would otherwise apply. 

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See 21 U.S.C. § 841(b)(1)(B). This court sentenced Garcia to 120

months' imprisonment. 

Garcia filed a timely notice of appeal. Thereafter,

our Court of Appeals granted the motion of the government for

summary affirmance of Garcia's conviction and sentence. The

Supreme Court denied the petition of Garcia for a writ of

certiorari on April 30, 2007. 

The instant petition for a writ of audita querela,

which is properly characterized as a motion to correct, vacate,

or set aside Garcia's sentence under 28 U.S.C. § 2255, was not

filed until November 9, 2011. See, e.g., Massey v. United

States, 581 F.3d 172, 174 (3d Cir. 2009). This is his first

§ 2255 motion. It is subject to the time restrictions and other

procedural requirements found in § 2255. Garcia can circumvent

the one-year deadline for filing a § 2255 motion after his

judgment of conviction became final on April 30, 2007 if his

motion is based on a new rule of law and was filed within one

year of "the date on which the right asserted was initially

recognized by the Supreme Court ... and made retroactively

applicable to cases on collateral review." 28 U.S.C.

§ 2255(f)(3). 

In support of his motion, Garcia points to the Supreme

Court's recent holding in Carachuri-Rosendo v. Holder. 130 S.

Ct. 2581 (2010). In Carachuri-Rosendo, the Court addressed the

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issue whether a second state misdemeanor conviction for

possession of narcotics was an "aggravated felony" barring a

resident alien's petition for cancellation of deportation under

the Immigration and Nationality Act ("INA"), 8 U.S.C.

§ 1229b(a)(3). Id. at 2580. There, the resident alien had been

sentenced to 20 days' imprisonment for possession of a small

amount of marijuana and later 10 days' imprisonment after a

conviction for possession without a prescription of one antianxiety tablet. Id. The Court held that the state misdemeanor

conviction did not qualify as an "aggravated felony" under the

INA merely because the underlying conduct could have been charged

as a felony in the federal court. Id. at 2589. 

Garcia's reliance on Carachuri-Rosendo is completely

misplaced. Garcia's prior conviction here was not a state

misdemeanor offense as in Carachuri-Rosendo but rather a state

felony conviction which carried a maximum sentence of greater

than one year. Furthermore, Carachuri-Rosendo involved the

interpretation of the INA, a completely different statute, and

did not address the definition of a prior felony under 21 U.S.C.

§ 851. Thus, even if Carachuri-Rosendo announced a new rule of

law which is retroactively applicable to cases on collateral

review, Garcia's motion fails.

Under § 851, Garcia's prior state conviction was

properly considered a prior felony drug offense. It is

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irrelevant that he only served a sentence of five years'

probation. See 21 U.S.C. §§ 802(13), (44). 

Accordingly, the motion of Garcia for relief under 28

U.S.C. § 2255 (improperly characterized as a writ of audita

querela) will be denied, and we will decline to issue a

certificate of appealability. 

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