Flores-Olera v. USA

Filing 2

ORDER denying Petition to Vacate under 28 USC 2255. Signed by Judge Gordon Thompson, Jr on 4/18/13.(ksr)

Flla.ED

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SO

BY

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A~R18 Z013 ]

CLERK, U.S. DISTRICT COURT

DISTRICT OF CALIFORNIA

DEPUTY

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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LUIS ANTONIO FLORES-OLIVERA,

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Petitioner,

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v.

!rcZNo. 12-1174GT
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~ No.
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) ORDER
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UNITED STATES OF AMERICA

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Respondent.

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On May 9, 2012, Petitioner, Luis Antonio Flores-Olivera ("Mr. Flores"), filed a Motion to

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ModifY Sentence, presumably pursuant to 28 U.S.C. § 2255. Mr. Flores requests a two level

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downward departure based on his status as a deportable alien, which Mr. Flores asserts "should

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have been considered as a mitigating factor" at his sentencing. The Court has fully considered this

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matter, including a review ofMr. Flores brief filed, the authorities cited therein and the arguments

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presented. For the reasons stated below, Mr. Flores Motion to ModifY Sentence is DENIED.

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II

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II

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First, Mr. Flores pled guilty, pursuant to a written plea agreement, to one count of Deported

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Alien Found in the United States, in violation of8 U.S.C. § 1326(a) and (b). In the written plea

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agreement, Mr. Flores explicitly waived his right to appeal and/or collaterally attack his conviction

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or sentence. The Ninth Circuit has long acknowledged that the terms of a plea agreement are

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enforceable. See, United States v. Baramdyk!:!, 95 F.3d 840,843 (9th Cir. 1996), cert. denied, 117

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S.Ct. 1282 (1997). Since Mr. Flores expressly waived his statutory right to appeal or collaterally

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attack his sentence in his plea agreement, Mr. Flores is now precluded from challenging that

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sentence pursuantto 28 U.S.C. § 2255. See, United Statesv. Abarca, 985 F.2d 1012, 1014 (9th Cir.

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1993) (holding that a knowing and voluntary waiver of a statutory right is enforceable).

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Moreover, even if Mr. Flores had not expressly waived his right to appeal or collaterally

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attack his sentence, his petition would still fail. In essence, Mr. Flores argues that because of his

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status as a deportable alien, he is "ineligible[] for pre-release custody and minimum security

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confinement." Mr. Flores argues that the Court should grant him a two level downward departure

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because of his status. However, Mr. Flores argument that the Court should depart downward

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because he is a deportable alien is precluded by statute and current Ninth Circuit case law. By

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statute, the Court may depart downward only ifthere are "aggravating or mitigating circumstances

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... not adequately taken into consideration by the Sentencing Commission." 18 U.S.C. § 3553(b).

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Specifically, the Ninth Circuit has held that the threat ofdeportation is not a factor that the district

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court may consider for sentencing purposes. United States v. Alvarez-Cardenas, 902 F.2d 734, 737

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(9th Cir. 1990).1 Accordingly,

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1The Ninth Circuit decided, in an unpublished opinion, that the defendant, like Limon, was not
entitled to a six month reduction in his sentence under 18 U.S.C. § 3553(b) because as a
deportable alien he is not eligible to spend the last six months of his sentence in a halfway
house pursuant to 18 U.S.C. § 3624(c). See United States v. Zepeda-Valles, 87 F.3d 1325 (9th
Cir. 1996).
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IICRS033

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IT IS ORDERED that Mr. Flores" Motion to Modify Sentence is DENIED.

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IT IS SO ORDERED.

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GORDON THOMPSON, JR.
United States District Judge

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cc: AUSA Bruce Castetter

Petitioner

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IICR5033