Case: 19-11424 Date Filed: 03/12/2020 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 19-11424 Non-Argument Calendar ________________________ D.C. Docket No. 3:08-cr-0077-MCR-EMT-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ORESTES CABRERA, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Northern District of Florida ________________________ (March 12, 2020) Before WILLIAM PRYOR, MARTIN, and JILL PRYOR, Circuit Judges. PER CURIAM: Orestes Cabrera, a federal prisoner proceeding pro se, appeals the denials of his motions for relief from and reconsideration of the district court’s order denying his petition for a writ of mandamus under 28 U.S.C. § 1651(a). The government Case: 19-11424 Date Filed: 03/12/2020 Page: 2 of 7 has moved for summary affirmance and a stay of the briefing schedule. After careful review, we grant the government’s motion. I. In 2008, Cabrera pled guilty to conspiracy to distribute and possess with intent to distribute 5 kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(a)(A)(ii), and 846, and possession with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(ii). Prior to his sentencing, Cabrera moved to withdraw his plea on the ground that it was not knowing or voluntary. The district court denied the motion and sentenced Cabrera to 276-months imprisonment, to be followed by 60-months supervised release. Cabrera appealed the denial of his motion to withdraw his plea and this Court affirmed, holding that Cabrera “knew and understood the direct consequences of his plea[,] . . . received close assistance of counsel[,] and entered his plea knowingly and voluntarily.” United States v. Cabrera, 367 F. App’x 78, 79–80 (11th Cir. 2010) (per curiam) (unpublished). In 2011, Cabrera filed a 28 U.S.C. § 2255 motion to vacate his sentence. He raised three grounds for vacating his sentence, including that his guilty pleas were not knowing and voluntary. While his motion did not make any arguments related to Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010), one of the many exhibits attached to his motion was a newspaper article explaining Padilla’s 2 Case: 19-11424 Date Filed: 03/12/2020 Page: 3 of 7 holding. The district court denied and dismissed Cabrera’s motion and denied his request for a certificate of appealability (“COA”). Cabrera sought leave to appeal and this Court also denied him a COA. Cabrera unsuccessfully moved for relief from judgment under Federal Rule of Civil Procedure 60(b) and, subsequently, for reconsideration. This Court denied him a COA as to both motions. In 2017, Cabrera sought leave from this Court to file a second or successive § 2255 motion to vacate his sentence, arguing that his counsel was ineffective for failing to advise him of the immigration consequences of his plea as required by Padilla. This Court denied his application, holding that because Padilla was decided before the filing of Cabrera’s first § 2255 motion, Cabrera failed to show that his claims were supported by a new ...
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