United States District Court, D. South Carolina, Spartanburg Division
ORDER AND OPINION
matter is before the court on pro se Defendant
Arecio Suazo-Molina's Motion for Reconsideration (ECF No.
121) of the Order and Opinion (“Order”) denying
Defendant's Motions to Vacate, Set Aside, or Correct a
Sentence by a Person in Federal Custody pursuant to 28 U.S.C.
§ 2255 (ECF No. 118.) Defendant requests that the court
reconsider and withdraw its Order on the basis that the court
erred by failing to remand his case back to District Court to
hold an evidentiary hearing relating to the claim that
defense counsel failed to request the Fast Track Program and
for the Residential Drug Abuse Program (“RDAP”).
For the reasons set forth herein, the court
DENIES Defendant's Motion for
Reconsideration. (ECF No. 121.)
FACTUAL AND PROCEDURAL BACKGROUND
December 8, 2015, a federal grand jury returned a two-count
indictment against Defendant and one co-defendant for
conspiracy to possess with intent to distribute, and to
distribute a mixture or substance containing a detectible
amount of methamphetamine, a Schedule II substance. (ECF No.
2.) On March 14, 2016, Defendant pled guilty, without a plea
agreement, to conspiring to possess with the intent to
distribute 500 grams or more of a mixture or substance
containing a detectible amount of methamphetamine. (ECF No.
47.) On June 8, 2016, the court sentenced Defendant to 57
months imprisonment. (ECF No. 53.) He did not appeal his
conviction or sentence. On December 27, 2016, Defendant filed
his first motion seeking relief pursuant to 28 U.S.C. §
2255, largely arguing his dissatisfaction with the length of
his sentence. (See ECF No. 85.) On January 25, 2017,
the United States of America (“Government”) filed
its response to Defendant's § 2255 Motion stating
that Defendant's disconnect with the length of his
sentence does not justify relief, his failure to appeal his
sentence constitutes a waiver of his claims, and he cannot
show his lawyer was ineffective. (ECF No. 88.) On February
13, 2017, Defendant filed a response to the Government's
Motion for Summary Judgment, asserting for the first time
that the court intended for Defendant to receive the benefit
of the Bureau of Prisons' (“BOP”) Residential
Drug Abuse Program (“RDAP”); that he was denied
access to the RDAP because the facility in which he was
currently housed did not administer the RDAP; and his denial
of admission to the RDAP had the consequence of lengthening
his sentence one year because he was unable to receive the
reduction for attending the RDAP. (ECF No. 95.)
March 15, 2017, Defendant filed another § 2255 petition,
which he styled as an “Amended” Motion under 28
U.S.C. § 2255. (ECF No. 99.) On March 29, 2017, the
Government filed another response in opposition (ECF No.
101), and filed a second Motion for Summary Judgment (ECF No.
102). On April 12, 2018, the court issued an Order denying
Defendant's Motion to Vacate, Set Aside, or Correct a
Sentence by a Person in Federal Custody pursuant to 28 U.S.C.
§ 2255 (ECF No. 118.) On May 7, 2018, Defendant filed a
Motion for Reconsideration (ECF No. 121.)
Federal Rules of Criminal Procedure have no provisions
governing motions for reconsideration. However, the rules and
federal case law do recognize such motions can be proper in a
criminal setting. See Fed. R. Crim. P.
57(b); U.S v. Dieter, 429 U.S. 6, 8
(1979); U.S. v. Randall, 666 F.3d 1238,
1241 (10th Cir. 2011). The court then looks to the Federal Rules
of Civil Procedure for guidance. A court may alter or amend a
judgment pursuant to Rule 59(e) of the Federal Rules of Civil
Procedure if the movant shows (1) an intervening change in
the controlling law; (2) new evidence that was not previously
available; or (3) that there has been a clear error of law or
a manifest injustice. Robinson v. Wix Filtration
Corp., 599 F.3d 403, 407 (4th Cir. 2010). However, Rule
59(e) motions cannot be used as opportunities to rehash
issues already ruled upon because the litigant is displeased
with the result. See Hutchinson v. Staton, 994 F.2d
1076, 1082 (4th Cir. 1993); Consulting Eng'rs, Inc.
v. Geometric Software Solutions & Structure Works
L.L.C., 2007 WL 2021901 (E.D. Va. July 6,
order to support a motion for reconsideration, the movant is
obliged to show not only that … the evidence was newly
discovered or unknown to it until after the hearing, but also
that it could not with reasonable diligence have discovered
or produced such evidence at the hearing. Therefore, evidence
brought to the court's attention which was available to
the movant prior to an entry of judgment is not a basis for
granting a motion for reconsideration as a matter of law. It
is within the sole discretion of the court as to whether the
granting of a motion to reconsider is appropriate. A motion
to reconsider cannot appropriately be granted where the
moving party simply seeks to have the court rethink what the
court has already thought through-rightly or wrongly.”
U.S v. Dickerson, 971 F.Supp. 1023, 1024 (E.D. Va.
1997). Therefore, the court finds that Defendant's
arguments in his Motion for Reconsideration are simply a
reiteration of points he previously argued in his Motion to
Vacate, Set Aside, or Correct a Sentence by a Person in
Federal Custody pursuant to 28 U.S.C. § 2255 (ECF No.
118.) Motions to reconsider cannot be used as opportunities
to rehash issues already ruled upon because the litigant is
displeased with the result. See also Hutchinson v.
Staton, 994 F.2d 1076, 1082 (4th Cir. 1993). The court
noted Defendant's arguments when denying Defendant's
Motion to Vacate, Set Aside, or Correct a Sentence by a
Person in Federal Custody pursuant to 28 U.S.C. § 2255,
holding that (1) Defendant was not eligible to enter the
“fast track” program in South Carolina, (2)
relief pursuant to 28 U.S.C. § 2255 was not applicable
because Defendant's sentence of 57 months imprisonment
did not exceed the maximum statutory penalty applicable to
his case, and (3) nowhere in the court's judgment did it
indicate that it wished the BOP to consider Defendant for the
RDAP. (ECF No. 118.)
careful consideration of Defendant's arguments, and for
the reasons set forth above, the court hereby
DENIES the Motion for Reconsideration (ECF
No. 121) of Defendant Arecio Suazo-Molina.
IS SO ORDERED.
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