United States District Court, E.D. Virginia, Alexandria Division
Plaintiff, represented by Paul Nathanson, U.S. Attorney's
Office & Caitlin Cottingham, U.S. Attorney's Office.
O'GRADY, District Judge.
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. Â§ 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.
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. Â§Â§ 1343
and 2, and tax evasion, in violation of 26 U.S.C. Â§ 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.
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.
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.
April 13, 2016, petitioner filed the pending Motion for
relief pursuant to 28 U.S.C. Â§ 2255. Dkt. No. 25. Petitioner
set forth several grounds upon which he argues relief should
be granted, including ineffective assistance of counsel.
government opposes the pending Motion on several grounds. The
government first argues that the motion should be denied as
petitioner is entitled to relief under 28 U.S.C. Â§ 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. Â§ 2255. A one year time limit
applies to all Â§ 2255 motions. 28 U.S.C. Â§ 2255(f); Clay
v. United States, 537 U.S. 522, 524 (2003). All Â§ 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
(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
(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