Case 3:00-cr-00158-AWT Document 90 Filed 12/15/2005 Page 1 bf4 I
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UNITED STATES OF AMERICA, ) “lr - u¤‘H
Respondent, )
g 3:0OCR00158(AwT)
V` ) Civil Action 3:04 Cv 2,31(AHT)
MIGUEL MACHUCA, ) _
· Petitioner. ) E
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MOTION FOR INCLUSION OF ADDITIONAL CASES
Comes Now, Petitioner, acting Pro Se, and respectfullyimoves
for permission to include additional cases, specifically thi Second
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Circuit decisions in United States v. Crosby, 397 F.3d 103 2nd Cir.
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2005); United States v. Gonzaleg, 420 F.3d 111 (2nd Cir. 2OI5); and
United States v. Cordova—Murgas, 422 F.3d 65 (2nd Cir. 2005); for i
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consideration in the above styled pending Civil Action and Ts support `
for such, avers as follows: , I
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1. The Petitioner is acting Pro Se and is currently idcarcerated i
at F.C.l. Elkton, P.O. Box 10, Lisbon, Ohio 44432. i
2. Petitioner filed an Initial Brief and a Reply Brie lunder
28 U.S.C. §2255. The only topic of the brief was the illegal judicial I
decision made during sentencing without the imput of a juryQspecU§caHy
the judicial determination that Machuca's sentence should h Ne been
enhanced under U.S.S.G. §3B1.1. Machuca was sentenced in b_e District
of Connecticut under the Federal Sentencing Guidelines; fi my
3. In that Brief the violation of Blakel v. Washin tjh, 124 S.Ct.
2531 (2004), the case that originally brought the implement tion of the
Federal Sentencing Guidelines into question, was extensivel discussed.
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See Pet1t1oner's Brief at p.1. "*“ I * ‘* s‘rl I
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Case 3:00-cr-00158-AWT Document 90 Filed 12/15/2005 Page 2 pf 4
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_ 4. The Second Circuit decisions in Crosby, supra; Gonzalez,
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supra; and Cordova—Murgas, supra. are connected to Blakely w1th 1
respect to the court jurisdictional authority and the defend nt's 1
Sixth Amendment Constitutional Rights. ln addition, these c ses 1
derived from the clarified holding in Booker, of Apgrendi vi New 1
Jersey, 530 U.S. 466 (2000), and United States v. Thomas, 271 F.3d 1
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655 (2nd Cir. 2001), and were not included and argued in the Brief 1
given they were not decided. Therefore, these cases sought n this 1
motion to be included (Crosby, Gonzalez, Cordova-Murgas), sh uld be 1
included due to being connected to Blakely, Apprendi, and Th mas. 1
5. Currently, the motion under 28 U.S.C. §2255 still p nding 1
in this Honorable court. No decisions have been made regard1ng
Petitioner‘s motion.
6. Since filing the Brief, The Second circuit decided (nd wrote
the opinion in these cases (Crosby, Gonzalez, and Cordova-Mu gas). ln 1
these cases the Second Circuit stated that: 1
vltlhe absence of an indictment is a jurisdictiona 1
defect which deprives the court of its power to ac . 1
Such a jurisdictional defect cannot be waived by a 1
defendant, even by a plea of guilty." Id. A 1
See Cordova—Murgas, p. 66. ‘1
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"lf a fact supports a specific sentence within the 1
sentencing range authorized by the jury verdict, i 1
can constitutionally be treated as`a sentencing falter, 1
but if the fact would expose defendant to a greatel
punishment than that authorized by the jury's guil y
verdict, it must be deemed an offense element subm tted
to the jury."
See Gonzalez at p. 112.
"A sentencing judge violate the Sixth Amendment by.
making factual findings and mandatorily enhancing A
sentence above the range applicable to facts found
by the jury or admitted by a defendant." A
See Crosby at p. 104. 1
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Case 3:00-cr-00158-AWT Document 90 Fi|ed12/15/2005 Page3i>f4
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7. Petitioner therefore respectfully requests that this E
court consider the Second Circuit holding in Gonzalez, Cros , 1
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and Cordova-Murgas, when considering his Motion Under 28 U. .C. 1
§2255. l
8. It is the interest of justice to permit inclusion if
these cases for consideration of the petition as it is new aw E
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applicable to an issue currently pending before this court.1
9. MHEREFORE, numerous supporting reasons have ben gi en l
for inclusion of these additional cases. It is imperative o 1
permit inclusion of the new authorities to prevent a miscar iage
of justice.
Respectfully Submitted this 3rd day of December, 2005.i
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MIGUEL MACHUCA 1
Reg. No. 13924-014
F.C.l. Elkton
1>.0. Box 10 1
Lisbon, OH 44432 I
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Case 3:00-cr-00158-AWT Document 90 Filed 12/15/2005 Page 4 4 I
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~ CERTIFICATE OF SERVICE I I
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l, Miguel Machuca, Petitioner, pro se, swear under the N
penalty of perjury pursuant to 28 U.S.C. §1746, that I have I
forwarded the original and two (2) copies of Petitioner moti n I
for inclusion of new authorhies, to the Clerk of the Court a d I
an additional copy have been served to the opposing party. I
Each forwarded to the following addresses:
UNITED STATES DISTRICT COURT
Office of the Clerk
450 Main Street
Hartford,iCTmO6103
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H. Gordon Hall, Esq.
U.S. Attorney's Office
157 Church St. I
New Haven, CT 06510 9 I I
044»QQ¢»¢é/-7»2"?#¢I@,¢,,,{ M I
MIGUEL MACHUCA I
wa. 13924-014 I
F.C.l. Elkton I I
P . O . Box 'I O
Lisbon, 0H 44432 I
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Dated: December 3, 2005 I
Lisbon, Ohio i
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