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)

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Flla.ED 1 [ 2 3 SO BY 4 A~R18 Z013 ] CLERK, U.S. DISTRICT COURT DISTRICT OF CALIFORNIA DEPUTY 5 6 7 8 9 10 11 12 UNITED STATES DISTRICT COURT 13 SOUTHERN DISTRICT OF CALIFORNIA 14 15 LUIS ANTONIO FLORES-OLIVERA, ) ) 16 Petitioner, 17 v. !rcZNo. 12-1174GT ] 1-503iQD ~ No. ) ) ORDER 18 UNITED STATES OF AMERICA 19 20 Respondent. ) ) ) ------------------------------------) 21 On May 9, 2012, Petitioner, Luis Antonio Flores-Olivera ("Mr. Flores"), filed a Motion to 22 ModifY Sentence, presumably pursuant to 28 U.S.C. § 2255. Mr. Flores requests a two level 23 downward departure based on his status as a deportable alien, which Mr. Flores asserts "should 24 have been considered as a mitigating factor" at his sentencing. The Court has fully considered this 25 matter, including a review ofMr. Flores brief filed, the authorities cited therein and the arguments 26 presented. For the reasons stated below, Mr. Flores Motion to ModifY Sentence is DENIED. 27 II 28 II 1 First, Mr. Flores pled guilty, pursuant to a written plea agreement, to one count of Deported 2 Alien Found in the United States, in violation of8 U.S.C. § 1326(a) and (b). In the written plea 3 agreement, Mr. Flores explicitly waived his right to appeal and/or collaterally attack his conviction 4 or sentence. The Ninth Circuit has long acknowledged that the terms of a plea agreement are 5 enforceable. See, United States v. Baramdyk!:!, 95 F.3d 840,843 (9th Cir. 1996), cert. denied, 117 6 S.Ct. 1282 (1997). Since Mr. Flores expressly waived his statutory right to appeal or collaterally 7 attack his sentence in his plea agreement, Mr. Flores is now precluded from challenging that 8 sentence pursuantto 28 U.S.C. § 2255. See, United Statesv. Abarca, 985 F.2d 1012, 1014 (9th Cir. 9 1993) (holding that a knowing and voluntary waiver of a statutory right is enforceable). 10 Moreover, even if Mr. Flores had not expressly waived his right to appeal or collaterally 11 attack his sentence, his petition would still fail. In essence, Mr. Flores argues that because of his 12 status as a deportable alien, he is "ineligible[] for pre-release custody and minimum security 13 confinement." Mr. Flores argues that the Court should grant him a two level downward departure 14 because of his status. However, Mr. Flores argument that the Court should depart downward 15 because he is a deportable alien is precluded by statute and current Ninth Circuit case law. By 16 statute, the Court may depart downward only ifthere are "aggravating or mitigating circumstances 17 ... not adequately taken into consideration by the Sentencing Commission." 18 U.S.C. § 3553(b). 18 Specifically, the Ninth Circuit has held that the threat ofdeportation is not a factor that the district 19 court may consider for sentencing purposes. United States v. Alvarez-Cardenas, 902 F.2d 734, 737 20 (9th Cir. 1990).1 Accordingly, 21 II 22 II 23 II 24 25 26 27 28 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). 2 IICRS033 1 IT IS ORDERED that Mr. Flores" Motion to Modify Sentence is DENIED. 2 IT IS SO ORDERED. 3 ~~~d-: ~. 4 5 GORDON THOMPSON, JR. United States District Judge 6 7 cc: AUSA Bruce Castetter Petitioner 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 IICR5033

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