                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             OCT 20 2004
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                        No. 04-5030
                                                           (N.D. Okla.)
 MARIO R. GARCIA-EMANUEL,                            (D.Ct. No. 90-CR-92-K)

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, and PORFILIO and BRORBY, Senior
Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is

therefore ordered submitted without oral argument.




      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
      Mario R. Garcia-Emanuel, a pro se litigant and federal inmate, appeals the

district court’s dismissal of his motion seeking a reduction of his 240-month

sentence based on post-offense rehabilitation, which the district court treated and

denied as a motion filed pursuant to 18 U.S.C. § 3582(c). We exercise

jurisdiction under 28 U.S.C. § 1291 and affirm.



      Mr. Garcia-Emanuel’s lengthy procedural history before this court is as

follows. On April 1, 1991, a jury found Mr. Garcia-Emanuel guilty of conspiracy

to possess and distribute cocaine; continuing a criminal enterprise; five counts of

income tax evasion; conspiracy to launder money; and seventeen counts of money

laundering. United States v. Garcia-Emanuel, 14 F.3d 1469, 1471 (10th Cir.

1994). The district court granted a judgment of acquittal on seventeen counts of

money laundering and the money laundering conspiracy, and sentenced him to 292

months imprisonment. On direct appeal, this court affirmed Mr. Garcia-

Emanuel’s convictions, but reversed some of the money laundering count

dismissals and remanded for resentencing. Id. at 1479. On remand, the district

court resentenced Mr. Garcia-Emanuel to the same 292 months imprisonment and

Mr. Garcia-Emanuel did not appeal his resentencing.



      Thereafter, Mr. Garcia-Emanuel successfully filed a 28 U.S.C. § 2255


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motion, in which the district court vacated the conspiracy conviction and

resentenced Mr. Garcia-Emanuel to 240 months imprisonment. United States v.

Garcia-Emanuel, 141 F.3d 1186, 1998 WL 141988 at *2 (March 30, 1998)

(unpublished op.). This court affirmed. Id. at *3. Mr. Garcia-Emanuel then filed

two separate 28 U.S.C. § 2255 motions to vacate, set aside, or correct his

sentence, which the district court transferred to this court for consideration as

second or successive motions. This court denied both successive § 2255 motions.



      Mr. Garcia-Emanuel next filed a “Motion for Post-Offense Rehabilitative

[sic],” which the district court construed as a motion under 18 U.S.C. § 3582(c) to

modify his sentence. After discussing the three avenues available for such

modification and determining none exist in this case, the district court concluded

it lacked “the authority to reduce Defendant’s sentence based only on

rehabilitative efforts.”



      On appeal, Mr. Garcia-Emanuel contests the district court’s denial of his

motion to modify his sentence based on his post-sentence rehabilitation efforts.

He also raises for the first time on appeal two ineffective assistance of counsel

issues, claiming his attorney was ineffective for not raising: 1) the request for

post-offense rehabilitative relief, and 2) the issue that he was only a minor or


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minimal participant.



      We review de novo the district court’s interpretation of a statute. United

States v. Smartt, 129 F.3d 539, 540 (10th Cir. 1997) (quotation marks and citation

omitted). When a “motion for sentence reduction is not a direct appeal or a

collateral attack under 28 U.S.C. § 2255, the viability of [the] motion depends

entirely on 18 U.S.C. § 3582(c).” Id. (internal quotation marks, citation and

alteration omitted). Section 3582(c) allows the court to modify a sentence in only

three limited circumstances, including: 1) on motion of the Director of the

Bureau of Prisons if special circumstances exist; 2) if otherwise expressly

permitted by statute or Federal Rule of Criminal Procedure 35; or 3) if the

sentencing range is subsequently lowered by the Sentencing Commission. Id. at

540-41. As previously noted, Mr. Garcia-Emanuel’s motion is premised solely on

his post-sentencing rehabilitation efforts, which the district court construed as a

§ 3582 motion.



      Having reviewed the record and briefs on appeal, we conclude the district

court did not err in construing Mr. Garcia-Emanuel’s motion to modify his

sentence as one filed under § 3582(c), and then denying it. As the district court

aptly explained, post-sentence rehabilitation is not a factor considered under


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§ 3582(c) for the purpose of modifying a sentence, and therefore, the district

court clearly lacked authority to reduce his sentence on that basis. See 18 U.S.C.

§ 3582(c).



      With respect to Mr. Garcia-Emanuel’s first ineffective assistance of counsel

claim, he claims his counsel improperly failed to file a motion for reduction of his

sentence based on his post-sentence rehabilitation. Giving Mr. Garcia-Emanuel

the benefit of the doubt, we assume this claim did not exist when he filed his

prior § 2255 motions as he may not have yet completed the rehabilitation alleged.

Because the claim presumably did not exist, it cannot be considered a successive

petition. See United States v. Scott, 124 F.3d 1328, 1330 (10th Cir. 1997).

However, Mr. Garcia-Emanuel failed to raise this claim before the district court.

Generally, we will not consider an issue not raised before the district court absent

plain error. United States v. Arras, 373 F.3d 1071, 1075 (10th Cir. 2004). Even

if we considered it, Mr. Garcia-Emanuel fails to establish his counsel’s

performance was either deficient or the deficiency prejudiced his case. See

Strickland v. Washington, 466 U.S. 668, 687-88 (1984). This is because, as

previously explained, Mr. Garcia-Emanuel’s request for modification of his

sentence based on post-sentence rehabilitation lacks merit, as it is not a factor

considered for modification under 18 U.S.C. § 3582(c). Thus, even if his counsel


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had brought such a motion, Mr. Garcia-Emanuel would not have been successful.



      As to the other ineffective assistance of counsel claim stemming from

counsel’s failure to raise the issue of minor or minimal participation at trial or

sentencing, we will, for the purposes of judicial economy, construe Mr. Garcia-

Emanuel’s claim as an application to this court to file a second or successive

motion. See 28 U.S.C. § 2255. Generally, the right to file a second or successive

motion under 28 U.S.C. § 2255 is limited to the following two circumstances:

      (1) newly discovered evidence that, if proven and viewed in light of
      the evidence as a whole, would be sufficient to establish by clear and
      convincing evidence that no reasonable factfinder would have found
      the movant guilty of the offense; or

      (2) a new rule of constitutional law, made retroactive to cases on
      collateral review by the Supreme Court, that was previously
      unavailable.

Id. However, with respect to claims of ineffective assistance raised on a second

application for post-conviction relief, we have applied the rule that “[t]he abuse

of the writ doctrine prohibits [a petitioner’s] second [or subsequent] § 2255

motion unless he excuses his failure to raise the issue earlier by showing cause for

failing to raise it and prejudice therefrom or by showing that a fundamental

miscarriage of justice would result from a failure to entertain the claim.” See

United States v. Richards, 5 F.3d 1369, 1370 (10th Cir. 1993) (quotation marks

and citation omitted). See also Moore v. Reynolds, 153 F.3d 1086, 1096-97 (10th

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Cir. 1998). In this case, under either criteria applied, Mr. Garcia-Emanuel’s

ineffective assistance of counsel claim must fail. His claim is not subject to

certification because it is not based on newly discovered evidence or a new rule

of constitutional law. Moreover, he has failed to show cause for not raising this

ineffective assistance of counsel claim in his original § 2255 motion, and we find

nothing in his brief or the record to suggest that a fundamental miscarriage of

justice will result from a failure to entertain the claim on appeal.



      Accordingly, we AFFIRM the district court’s decision denying a sentence

reduction under 18 U.S.C. § 3582(c)(2).



                                        Entered by the Court:

                                        WADE BRORBY
                                        United States Circuit Judge




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