United States v. Henry Garcia , 149 F.3d 1188 ( 1998 )

149 F.3d 1188

NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.
UNITED STATES of America, Appellee,
v.
Henry GARCIA, Appellant.

No. 98-1040.

United States Court of Appeals, Eighth Circuit.

May 27, 1998.

Appeal from the United States District Court for the District of South Dakota.

Before McMILLIAN, LOKEN, and MURPHY, Circuit Judges.

PER CURIAM.

1

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 See United States v. Garcia, 48 F.3d 1225 (unpublished table decision).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 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.

2

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.

1

The HONORABLE RICHARD H. BATTEY, Chief Judge, United States District Court for the District of South Dakota