U.S. v. GARCIA

Case No. 8:11-CR-572-T-17MAP.

UNITED STATES OF AMERICA, v. OMAR BELALCAZAR GARCIA.

United States District Court, M.D. Florida, Tampa Division.


Attorney(s) appearing for the Case

USA, Plaintiff, represented by W. Stephen Muldrow , U.S. Attorney's Office.


ORDER

ELIZABETH A. KOVACHEVICH, District Judge.

This cause is before the Court on the following Motion of pro se Defendant Omar Belalcazar Garcia:

Dkt. 225 Motion for Rule 35 and Appointment of Counsel

After Defendant Belalcazar Garcia entered into a Plea Agreement (Dkt. 90), in which Defendant Belalcazar Garcia pleaded guilty to Count Three of the Superseding Indictment, Defendant Belalcazar Garcia was sentenced on November 9, 2012. The Government filed a Motion for Downward Departure (Dkt. 133) of three levels to Defendant's offense level, which the Court granted at sentencing. On the Government's Motion, Counts One, Two and Four of the Superseding Indictment, and all counts of the underlying Indictment, were dismissed at sentencing. Defendant Belalcazar Garcia orally moved for a variance to 150 months imprisonment, which the Court denied (Dkts. 139, 140). Defendant Belalcazar-Garcia was represented by counsel at sentencing; Defendant's counsel noted no objections to the sentencing proceedings. Defendant Belalcazar Garcia was sentenced to 151 months imprisonment as to Count Three of the Superseding Indictment, to run consecutively to the sentence imposed in Case No. 8:04-CR-545-T-30EAJ, and 120 months supervised release as to Count Three.

Defendant Belalcazar's Plea Agreement provides:

"In any case, the defendant understands that the determination as to whether "substantial assistance" has been provided or what type of motion related thereto will be filed, if any, rests solely with the United States Attorney for the Middle District of Florida, and the defendant agrees that defendant cannot and will not challenge that determination, whether by appeal, collateral attack, or otherwise."

(Dkt. 90, p. 5).

Federal district courts have authority to review a prosecutor's refusal to file a substantial assistance motion to grant a remedy if they finds that the refusal was based on an unconstitutional motive, like race or religion. A defendant who merely claims to have provided substantial assistance or who makes only generalized allegations of an improper motive is not entitled to a remedy or even an evidentiary hearing. Judicial review is appropriate only when there is an allegation and a substantial showing that the prosecution refused to file a substantial assistance motion because of a constitutionally impermissible motivation. See Wade v. United States, 504 U.S. 181 (1982); United States v. Nealy, 232 F.3d 825 (11th Cir. 2000).

Defendant Belalcazar Garcia does not allege or make any showing that the Government has refused to file a substantial assistance motion because of a constitutionally impermissible motivation.

After consideration, the Court denies pro se Defendant's Motion for a Rule 35, and denies the Motion for Appointment of Counsel as moot. Accordingly, it is

ORDERED that pro se Defendant Omar Belalcazar Garcia's Motion for Rule 35 and for Appointment of Counsel (Dkt. 225) is denied; the Motion for Rule 35 is denied, and the Motion for Appointment of Counsel is denied as moot. The Clerk of Court shall provide a copy of this Order to pro se Defendant Belalcazar Garcia at the address below.

DONE and ORDERED.


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