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United States v. Mooring

United States District Court, E.D. Virginia, Alexandria Division

August 9, 2016

UNITED STATES OF AMERICA,
v.
MELVIN MOORING, Defendant. Civil Action No. 1:16-cv-437

          USA, Plaintiff, represented by Paul Nathanson, U.S. Attorney's Office & Caitlin Cottingham, U.S. Attorney's Office.

          MEMORANDUM OPINION

          LIAM O'GRADY, District Judge.

         This matter comes before the Court on Defendant Juan de Dios Garcia Mercado's Motion to Vacate, set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. Dkt. No. 25. The government has filed a response in opposition, to which the Petitioner replied. Dkt. Nos. 28, 29. For the reasons stated below, the Court finds the motion is untimely.

         I. Background

         On March 8, 2013, Petitioner appeared before this Court and pled guilty to a two count criminal information charging Petitioner with wire fraud in violation of 18 U.S.C. §§ 1343 and 2, and tax evasion, in violation of 26 U.S.C. § 7201. Dkt. No. 6. These charges were based on Moorings activities while chief financial officer of K&R Industries, a corporation based in Chantilly, Virginia. Dkt. No. 7. As Chief Financial Officer, Petitioner was responsible for all financial aspects of the corporation. Id. He had access to and authority over the corporation's bank accounts and was responsible for maintaining the corporation's financial records. Id. From 2004 until 2011, Petitioner stole over $3.3 million from K&R Industries through fraudulent wire transfers and company checks. Id. In addition, in an attempt to conceal the fraudulent scheme, Petitioner filed false and fraudulent federal income tax returns. Id.

         Pursuant to the terms of the plea agreement, the government and the Petitioner agreed to recommend that certain provisions of the United States Sentencing Guidelines be applied to Petitioner's offenses. Consistent with the plea agreement, the United States Probation Office, through its Presentence Investigation Report, recommended a Guideline range of seventy to eighty-seven months imprisonment on Count One and sixty months imprisonment on Count Two. Dkt. No. 11. Petitioner's counsel filed a sentencing position paper, arguing that a sentence of forty-eight months was appropriate, based on Petitioner's background and in light of the nature of the offence. Dkt. No. 14.

         On June 7, 2013, the Court sentenced Petitioner to seventy-two months incarceration on Count One, and sixty months incarceration on Count Two, to be served concurrently. Dkt. No. 17. Petitioner was also ordered to pay restitution in the amount of $3, 541, 003.57. Id. Petitioner did not appeal his conviction or his sentence.

         On April 13, 2016, petitioner filed the pending Motion for relief pursuant to 28 U.S.C. § 2255. Dkt. No. 25. Petitioner set forth several grounds upon which he argues relief should be granted, including ineffective assistance of counsel.

         II. Discussion

         The government opposes the pending Motion on several grounds. The government first argues that the motion should be denied as untimely.

         A petitioner is entitled to relief under 28 U.S.C. § 2255 if he demonstrates either: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255. A one year time limit applies to all § 2255 motions. 28 U.S.C. § 2255(f); Clay v. United States, 537 U.S. 522, 524 (2003). All § 2255 motions must be filed within one year of the latest of the following four dates:

(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively ...

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