Calderon-Aguilera v. USA

Filing 2

ORDER denying Petition to Vacate under 28 USC 2255. Signed by Judge Gordon Thompson, Jr on 10/6/14.(All non-registered users served via U.S. Mail Service)(ksr)

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FILED I OC~~~ 1 CLERK, U.S. DIS fAlCl COURT SOU~ DISTRICT Of CALIFORNIA BY DEPUTY 2 \J...V 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 RAMON CALDERON-AGUILERA, 14 Petitioner, 15 v. 16 17 18 UNITED STATES OF AMERICA, Respondent. ) ) ) Civ. No. 11-2901 ) Cr. No. 10-2294 ) ) ORDER ) ) ) ) ----------------------------------) 19 On, December 12, 2012, Petitioner Ramon Calderon-Aguilera ("Mr. Calderon"), filed a 20 Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 ("Motion"). Mr. 21 Calderon argues that his counsel was ineffective because his counsel did not object to Probation's 22 calculation of Mr. Calderon's criminal history score and category. For the reasons stated below, 23 Mr. Calderon's Motion is DENIED. 24 In order to prevail on a claim of ineffective assistance ofcounsel, a petitioner must show that 25 counsel's performance was deficient and that this deficient performance prejudiced the petitioner. 26 Strickland v. Washington 466 U.S. 668, 687 (1984). 27 Mr. Calderon argues that his counsel was ineffective because he did not object to the 28 computation of his criminal history category. Specifically, Mr. Calderon argues that two points should not have been added pursuant to USSG § 4A 1.1 (d) because he was not on parole at the time 2 the offense was committed. However, Mr. Calderon was on parole as stated in the PSR and this 3 would have been a frivolous argument. Mr. Calderon also argues that one point should not have 4 been added pursuant to USSG § 4A1.1(e) because this section was later deleted from the 5 guidelines. At the time of Mr. Calderon's sentencing, § 4A1.1(e) was still incorporated in the 6 guidelines and was correct at the time he was sentence. Failure to raise meritless legal arguments 7 does not constitute ineffective assistance ofcounseL Baumann v. United States, 692 F .2d 565, 572 8 (9 th Cir. 1982). Accordingly. IT IS ORDERED that Petitioner's Motion to Vacate, Set Aside or Correct Sentence is 9 10 DENIED. IT IS SO ORDERED. 11 12 13 14 114!t~/ dati ' , 15 ~L~1< GORDON THOMPSON, JR United States District Judge 16 cc: All parties 17 18 19 20 21 22 23 24 25 26 27 28 2 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 RAMON CALDERON-AGUILERA, ) ) 14 Petitioner, ) Civ. No. 11-2901 ) Cr. No. 10-2294 15 v. ) ORDER ) 16 17 18 UNITED STATES OF AMERICA, Respondent. ) ) ) ) ------------------------------------) 19 On, December 12, 2012, Petitioner Ramon Calderon-Aguilera ("Mr. Calderon"), filed a 20 Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.c. § 2255 ("Motion"). Mr. 21 Calderon argues that his counsel was ineffective because his counsel did not object to Probation's 22 calculation of Mr. Calderon's criminal history score and category. For the reasons stated below, 23 Mr. Calderon's Motion is DENIED. 24 In order to prevail on a claim ofineffective assistance ofcounsel, a petitioner must show that 25 counsel's performance was deficient and that this deficient performance prejudiced the petitioner. 26 Strickland v. Washington 466 U.S. 668, 687 (1984). 27 Mr. Calderon argues that his counsel was ineffective because he did not object to the 28 computation of his criminal history category. Specifically, Mr. Calderon argues that two points 1 should not have been added pursuant to USSG § 4A 1.1 (d) because he was not on parole at the time 2 the offense was committed. However, Mr. Calderon was on parole as stated in the PSR and this 3 would have been a frivolous argument. Mr. Calderon also argues that one point should not have 4 been added pursuant to USSG § 4A 1.1 (e) because this section was later deleted from the 5 guidelines. At the time ofMr. Calderon's sentencing, § 4A1.1(e) was still incorporated in the 6 guidelines and was correct at the time he was sentence. Failure to raise meritless legal arguments 7 does not constitute ineffective assistance ofcounsel. Baumann v. United States, 692 F .2d 565, 572 8 (9 th Cir. 1982). Accordingly. 9 10 IT IS ORDERED that Petitioner's Motion to Vacate, Set Aside or Correct Sentence is DENIED. 11 IT IS SO ORDERED. 12 13 14 Li'D)I.f datI!" 15 16 cc: All parties 17 18 19 20 21 22 23 24 25 26 27 28 2

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