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Garcia v. United States

United States Court of Appeals, Ninth Circuit

May 16, 2019

Fernando Ponce Garcia, Petitioner,
v.
United States of America, Respondent.

          Argued and Submitted April 19, 2019 San Francisco, California

          Application to File Second or Successive Petition Under 28 U.S.C. § 2255

          Elizabeth Richardson-Rover (argued), San Francisco, California, for Petitioner.

          Laurel J. Montoya (argued), Assistant United States Attorney; Camil A. Skipper, Appellate Chief; McGregor Scott, United States Attorney; United States Attorney's Office, Fresno, California; for Respondent.

          Before: MICHAEL DALY HAWKINS and MILAN D. SMITH, JR., Circuit Judges, and BARBARA M. G. LYNN, [*] District Judge.

         SUMMARY [**]

         28 U.S.C. § 2255

         The panel denied Fernando Ponce Garcia's application for authorization to file a second or successive 28 U.S.C. § 2255 petition collaterally attacking his 2008 sentence for conspiracy to distribute and possess with intent to distribute methamphetamine (21 U.S.C. §§ 846, 841(1)(a)(1), and 841(b)(1)(A)) and possession of a firearm during a drug trafficking offense (18 U.S.C. § 924(c)(1)(A)).

         Garcia's application relied on the rule announced in Dean v. United States, 137 S.Ct. 1170 (2017), which held that when a defendant is facing two consecutive sentences- one for a predicate offense, which does not carry a mandatory minimum sentence, and one for an offense committed under § 924(c), which does carry a mandatory minimum-the sentencing judge has the discretion to consider the defendant's mandatory sentence when deciding the proper time to be served for the predicate offense.

         The panel held that Garcia did not satisfy the requirements set forth in 28 U.S.C. § 2255(h)(2) for authorization to file a second or successive § 2255 petition because Dean's rule was statutory, not constitutional, and even if it were constitutional, the Supreme Court has not made the rule retroactive to cases on collateral review.

          OPINION

          M. SMITH, CIRCUIT JUDGE

         In this case of first impression for our circuit, we decide whether the Supreme Court's decision in Dean v. United States, 137 S.Ct. 1170 (2017), announced a new rule of constitutional law that the Court has made retroactively applicable to cases on collateral review. We find that it did not, so we deny Fernando Garcia's application for authorization to file a second or successive petition under 28 U.S.C. § 2255.

         FACTUAL AND PROCEDURAL BACKGROUND

         Garcia pleaded guilty to conspiracy to distribute and possess with the intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A), and possession of a firearm during a drug trafficking offense, in violation of 18 U.S.C. § ...


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