United States v. Henry Garcia

Opinion

United States Court of Appeals FOR THE EIGHTH CIRCUIT

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No. 98-1040 ___________

United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of South Dakota. Henry Garcia, * * [UNPUBLISHED] Appellant. * ___________

Submitted: May 1, 1998 Filed: May 27, 1998 ___________

Before McMILLIAN, LOKEN, and MURPHY, Circuit Judges. ___________

PER CURIAM.

Henry Garcia appeals the district court&s1 order denying his post-sentencing motion for downward departure. Garcia was convicted in 1994 of a drug offense, and we affirmed his conviction in February 1995. See United States v. Garcia, 48 F.3d 1225 (8th Cir. 1995) (unpublished table decision). In April 1995, Garcia filed a pro se motion under 28 U.S.C. § 2255, which the district court denied, and we again affirmed. See Garcia v. United States, No. 95-2666 (8th Cir. Aug. 2, 1995) (judgment). In

1 The HONORABLE RICHARD H. BATTEY, Chief Judge, United States District Court for the District of South Dakota. November 1997, Garcia filed a pro se “Emergency Motion for Downward Departure” arguing that he is in the advanced stages of kidney deterioration and needs to be released to obtain an organ transplant.

The district court properly denied Garcia&s motion, because there is no statutory authority to grant his untimely motion for downward departure. See Fed. R. Crim. P. 35. We also reject Garcia&s suggestion that his motion could be entertained as a motion under 28 U.S.C. § 2255 or a petition under Federal Rule of Appellate Procedure 21 for an extraordinary writ. Accordingly, we affirm.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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