Aguirre-Olivas v. USA
Filing
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ORDER Denying Motion for Sentence Reduction and 2255 Motion, ***Civil Case Terminated. Signed by Judge D. Lowell Jensen on 1/29/13. (jg, COURT STAFF) (Filed on 1/29/2013)
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Jaime Aguirre-Olivas,
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Petitioner, )
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v.
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UNITED STATES OF AMERICA,
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Respondent. )
______________________________)
*E-FILED - 1/29/13*
Nos.
C-12-03908-DLJ
CR-10-00319-DLJ
ORDER
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On June 28, 2011 Defendant Jaime Aguirre-Olivas (Aguirre-
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For the Northern District of California
United States District Court
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Olivas) was sentenced to 42 months in prison for a violation of 8
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U.S.C. § 1326, Illegal Re-entry following deportation.
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6, 2012 Aguirre-Olivas filed a Motion for Time Reduction by an
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Inmate in Federal Custody in his criminal case, CR 10-0319.
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On February
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July 16, 2012, Aguirre-Olivas filed a Motion under 28 U.S.C. § 2255
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to Vacate, Set Aside or Correct his sentence (case C12-3908).
The Time Reduction Motion claims violation of his equal
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rights as he asserts that were he a United States Citizen he would
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be entitled to a one year reduction of his sentence for
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participation in a drug program during his incarceration.
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The 2255 Motion claims ineffective assistance of counsel,
alleging that at the sentencing counsel for defendant failed to
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correctly address defendant’s prior convictions.
Aguirre-Olivas
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also contends that counsel was ineffective in that he claims
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counsel caused him to waive his right to appeal.
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Having now considered the papers submitted, and the
applicable law, the Court hereby denies the motion.
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I.
Background
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On April 21, 2010, Aguirre-Olivas was charged in a single
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count indictment with illegal re-entry following deportation in
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violation of 8 U.S.C. § 1326(a) and (b). On April 12, 2011,
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Aguirre-Olivas entered an “open” guilty plea.
The Court informed
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Aguirre-Olivas that the maximum prison sentence for this offense
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was 20 years, the maximum fine was $250,000 and the maximum term of
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supervised release was three years. At that court appearance a date
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For the Northern District of California
United States District Court
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was set for sentencing.
Prior to the sentencing, the United States Probation Office
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issued a Pre-Sentence Investigation Report (“PSR”) recommending a
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sentence of 60 months. On June 21, 2012, Aguirre-Olivas’ defense
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counsel filed a nineteen page sentencing memorandum in which she
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argued that the Court should enter a sentence of 40 months. The
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government filed a sentencing memorandum which recommended a
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sentence of 77 months.
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The sentencing hearing was held on June 28, 2011. The Court
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made the following sentencing calculation: the proper base offense
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level of 8 was to be increased by 16 levels because of defendant’s
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prior State of California conviction of Assault with a Deadly
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Weapon, a crime of violence. After the three level reduction for
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acceptance of responsibility, defendant’s adjusted offense
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level was 21. As Aguirre-Olivas was in Criminal History Category
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VI, his USSG Sentence Guideline range was 77 to 96 months.
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At the sentencing hearing defense counsel made numerous
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arguments urging the Court to impose a reduced sentence of 40
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months. Defense counsel objected to the 16-level enhancement, both
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because the conviction was over 15 years old and also as the
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enhancement was excessive in light of the circumstances where there
was serious bodily injury to the victim. See Sentencing Transcript,
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at pp. 4-5.
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prior conviction was “double-counted” because it was counted for
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purposes of increasing the offense level but had also been taken
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For the Northern District of California
United States District Court
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Defense counsel further argued that Aguirre-Olivas’
into consideration in raising his criminal history. Id. at 16-18.
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Finally, defense counsel urged the Court to take into account
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various mitigating factors, including Aguirre-Olivas’ wife’s
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medical condition, his father’s poor health, and daughter’s
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learning disability. Id. at 12-14.
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The Court considered all of defense counsel’s objections.
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The Court noted that the enhancement was part of the Sentencing
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Guidelines and so should be included in the calculation but that
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the Court would take all of counsel’s arguments into consideration
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in determining the final sentence to be imposed.
The Court
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sentenced defendant to a below guidelines sentence of 42 months in
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light of the age of defendant’s prior conviction, the circumstances
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of the conviction, and the sentencing factors under § 3553(a). Id.
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6, 22.
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On July 16, 2012, Aguirre-Olivas filed his Petition, in which
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he alleges three grounds for habeas relief. First, he argues that
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his attorney provided him with ineffective assistance of
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counsel because she failed to address the fact that his prior
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Assault with a Deadly Weapon conviction should not have led to a
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16-level enhancement. He appears to also argue that his
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attorney was ineffective because she failed to challenge the
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enhancement due to his prior felony conviction despite that it was
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not proven beyond a reasonable doubt nor admitted by him, in
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For the Northern District of California
United States District Court
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violation of his Apprendi rights. Third, he argues that “pursuant
to the new Supreme Court ruling in Pepper [sic], [he] is entitled
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relief, in regard to [his] post-sentencing rehabilitation.” See
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Aguirre-Olivas’ Petition at page 8.
II. Legal Standard
A claim for ineffective assistance of counsel is subject to
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the two-prong test set forth in Strickland v. Washington, 466 U.S.
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668, 687 (1984). A lawyer's performance is constitutionally
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deficient only when it “so undermines the proper functioning of the
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adversarial process that the [proceedings] cannot be relied upon as
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hav[ing] produced a just result.” Id. at 687.
A petitioner claiming ineffective assistance of counsel bears
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the burden of demonstrating that, under all the circumstances of
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his case, (1) his counsel's performance was so deficient that it
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fell below an “objective standard of reasonableness” and (2) his
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counsel's deficient performance prejudiced him, meaning “there is a
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reasonable probability that, but for counsel's unprofessional
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errors, the result of the proceeding would have been different.”
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Hensley v. Crist, 67 F.3d 181,184-85 (9th Cir. 1995). Furthermore,
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“[r]eview of counsel's performance is highly deferential and there
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is a strong presumption that counsel's conduct fell within the wide
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range of reasonable representation.” United States v.
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Ferreira-Alameda, 815 F.2d 1251, 1253 (9th Cir. 1987).
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For the Northern District of California
United States District Court
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An evidentiary hearing is not required “if the petitioner’s
allegations, when viewed against the record, fail to state a claim
for relief.” United States v. McMullen, 98 F.3d 1155, 1158 (9th
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Cir. 1996).
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III. Aguirre-Olivas’ 2255 Motion
A. Counsel’s Alleged Failure Regarding the 16 level
enhancement.
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Aguirre-Olivas first contends that his counsel was
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ineffective as he asserts that she “failed to address the fact
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that [his] prior Assault with a Deadly Weapon conviction did not
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warrant a 16-point enhancement.”
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there is no factual support in the record for this claim, but that
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the record indicates that counsel for Aguirre-Olivas’ made numerous
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The Court finds not only that
efforts to argue this very point, and ultimately the Court
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concurred with his counsel and gave Aguirre-Olivas a sentence which
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was substantially below the guidelines range.
Counsel for Aguirre-
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Olivas filed a nineteen-page sentencing memorandum addressing this
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point and at the sentencing hearing argued that a 16 level
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enhancement to the applicable base offense level was excessive
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because Aguirre-Olivas’ prior conviction for Assault with a Deadly
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Weapon was not a particularly serious one and because the
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conviction was over 15 years old. See Sentencing Transcript at
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pages 4-5.
While the Court still found that the 16 level enhancement was
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appropriate under the current sentencing guidelines, the Court
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considered defense counsel’s objections and arguments in its
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For the Northern District of California
United States District Court
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determination of the appropriateness of a sentencing variance under
Booker.
Moreover, defense counsel made additional arguments that
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Aguirre-Olivas’ prior conviction for Assault with a Deadly Weapon
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was “double-counted” because it was counted for purposes of his
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criminal history and offense level. Id. at 16-18. Finally, defense
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counsel urged the Court to consider additional mitigating factors,
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including Aguirre-Olivas’ wife’s poor medical condition, his
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father’s poor medical condition, and daughter’s learning
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disability. Id. at 12-14.
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Aguirre-Olivas has failed to meet his burden of demonstrating
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that his counsel's performance was constitutionally deficient, as
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his counsel in all ways represented him diligently.
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Aguirre-Olivas’s claim fails because he has suffered no prejudice
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as there was no error in the application of the 16-level sentence
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enhancement and also Aguirre-Olivas received a below guidelines
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sentence.
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Moreover,
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B. Counsel’s Alleged Failure To Challenge Aguirre-Olivas’
Prior Felony Conviction On the Grounds That It Was Not Proven
Beyond A Reasonable Doubt
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Aguirre-Olivas argues that his attorney was ineffective
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because she failed to challenge that the fact of the prior felony
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conviction having occurred prior to his deportation had not proven
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beyond a reasonable doubt or admitted by him, therefore violating
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his rights under Apprendi v. New Jersey, 530 U.S. 466 (2000). This
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argument has been foreclosed by Almendarez-Torres v. United States,
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For the Northern District of California
United States District Court
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523 U.S. 224 (1998).
See United States v. Almazan-Becerra,
482 F.3d 1085, 1091 (9th Cir. 2007) (reaffirming that a prior
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conviction need not be submitted to a jury and proved beyond a
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reasonable doubt).
See also United States v. Beng-Salazar, 452
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F.3d 1088, 1091 (9th Cir. 2006) (upholding sentencing enhancement
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based on prior conviction of crime of violence not admitted by
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defendant).
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violence conviction as a sentencing enhancement was valid and
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Therefore, the use of Aguirre-Olivas’ prior crime of
his defense counsel’s action in not objecting was not deficient.
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C.
Alleged Waiver of Right to Appeal
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Aguirre-Olivas alleges without any factual support that his
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counsel caused him to waive his right to appeal.
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the record at the sentencing hearing that the Court advised
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Aguirre-Olivas of his right to appeal and the timing and notice
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requirement attendant to that right.
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It is clear from
Therefore it is clear that
Aguirre-Olivas was on notice of his rights. There is nothing before
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the Court which would indicate that defense counsel interfered wiht
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those rights, and therefore there is no basis for the Court to find
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defense counsel’s performance ineffective.
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D.
Is Aguirre-Olivas entitled to relief under Pepper?
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Aguirre-Olivas argues that “pursuant to the new Supreme Court
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ruling in Pepper [sic], [he] is entitled relief, in regard to [his]
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post-sentencing rehabilitation.” See Aguirre-Olivas’ Petition at
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page 8. Aguirre-Olivas relies on Pepper v. United States, 562 U.S.
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––––, 131 S.Ct. 1229 (2011). In Pepper, the Supreme Court held that
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For the Northern District of California
United States District Court
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when a defendant's sentence has been set aside on appeal and his
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case remanded for re-sentencing, a district court may consider
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evidence of a defendant's rehabilitation since his prior sentencing
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to award a downward variance from the advisory Guidelines range.
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Id. at 1236. However, Pepper is inapplicable to Aguirre-Olivas, as
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Pepper does not address habeas corpus proceedings after a final
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sentence has been ordered which is the case here.
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IV.
Aguirre-Olivas’ Motion for Sentence Reduction
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In his motion for Time Reduction Aguirre-Olivas claims
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violation of his equal rights as he asserts that were he a United
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States Citizen he would be entitled to a one year reduction of his
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sentence for participation in a drug program during his
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incarceration.
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and rejected by the Ninth Circuit.
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However, this argument has been raised previously
F.3d 117 (9th Cir. 1999).
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See McLean v. Crabtree,
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V.
Conclusion
For the reasons stated above, petitioner’s Motion for
Sentence Reduction and 2255 Motion are both DENIED.
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IT IS SO ORDERED
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Dated: January 29, 2013
_________________________
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D. Lowell Jensen
United States District Judge
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For the Northern District of California
United States District Court
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Copy of Order Mailed on 1/29/13 to:
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Jaime Aguirre-Olivas
PO Box 5300
Adelanto, CA 92301
Copy of Order E-Filed to Counsel of Record:
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For the Northern District of California
United States District Court
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