Lopez-Sanchez v. USA
Filing
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ORDER Denying as Moot Petition to Vacate under 28 USC 2255. Because Petitioner has been released from custody, this Court finds Petitioner's § 2255 motion is moot. Accordingly, it is hereby ordered that Petitioner's § 2255 motion is Denied as Moot. Signed by Judge John A. Houston on 4/11/2012.(All non-registered users served via U.S. Mail Service)(leh)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
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RUBEN LOPEZ-SANCHEZ,
v.
Petitioner,
UNITED STATES OF AMERICA,
Respondent.
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Civil No. 09-cv-1768-JAH
Crim. No. 04-cr-2051-JAH
ORDER DENYING MOTION TO
VACATE UNDER 28 U.S.C. § 2255
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On September 17, 2004, this Court sentenced Petitioner to a total of thirty months
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imprisonment, with one year of supervised release to follow, after Petitioner pled guilty to two
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counts of violating 8 U.S.C. § 1325. On April 4, 2008, the Honorable Barry Ted Moskowitz,
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United States District Judge, sentenced Petitioner to a total of forty-eight months
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imprisonment, with one year of supervised release to follow, after Petitioner pled guilty to two
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counts of violating 8 U.S.C. § 1325. On April 21, 2008, this Court sentenced Petitioner to an
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additional six months imprisonment after Petitioner admitted to violating the conditions of the
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supervised release imposed by this Court’s September 17, 2004 sentence. This Court ordered
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the additional six months to be served consecutively to Judge Moskowitz’ April 4, 2008
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sentence. Thus, to date, Petitioner has satisfied the sentences of imprisonment imposed by this
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Court and by Judge Moskowitz. Indeed, the Federal Bureau of Prisons website confirms
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Petitioner was released from custody on September 8, 2011, a fact of which this Court takes
09cv1768/04cr2051
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judicial notice pursuant to the Federal Rules of Evidence, Rule 201.
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On August 12, 2009, Petitioner, proceeding pro se, filed a motion under 28 U.S.C. §
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2255 to vacate, set aside, or correct his sentence. (Dkt. No. 23.) Defendant asserts that his
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ineligibility for minimum security confinement, drug rehabilitation programs, and pre-release
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custody due to his alienage means he effectively received a longer and harsher term of
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incarceration. On February 17, 2011, Respondent filed an opposition, in which Respondent
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construes Petitioner’s motion as a collateral attack on the sentence imposed by Judge
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Moskowitz. (Dkt. No. 31.) And while Petitioner was permitted to file a reply on or before
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March 18, 2011, Petitioner has, to date, not filed a reply.
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A motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence becomes
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moot when a prisoner is released from custody before the sentencing court considers the merits
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of the motion and there is no possibility that any collateral legal consequences will be imposed
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on the basis of the challenged conviction. Lane v. Williams, 455 U.S. 624, 632 (1982).
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Here, Petitioner does not challenge his conviction or raise any collateral legal
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consequences that will be imposed on the basis of his conviction. Instead, Petitioner challenges
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the length and harshness of his sentence. Because Petitioner has been released from custody,
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this Court finds Petitioner’s § 2255 motion is moot. Accordingly, IT IS HEREBY ORDERED
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that Petitioner’s § 2255 motion is DENIED AS MOOT.
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Dated: April 11, 2012
JOHN A. HOUSTON
United States District Judge
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09cv1768/04cr2051
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