Garcia-Montez v. USA

Filing 2

ORDER Denying Petition to Vacate under 28 USC 2255. Signed by Judge Jeffrey T. Miller on 9/26/2012. (All non-registered users served via U.S. Mail Service) (srm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RAFAEL GARCIA-MONTEZ,

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CASE NO. 3:11-cr-3471-JM
CIVIL NO. 3:12-cv-1556-JM
Plaintiff,

vs.

ORDER DENYING MOTION
BROUGHT PURSUANT TO 28
U.S.C. § 2255

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UNITED STATES OF AMERICA
Defendant.

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Pursuant to a plea agreement, Defendant Rafael Garcia-Montez (“Defendant”), a non-United
States citizen, pleaded guilty to a single count Information charging Defendant with being a deported
alien found in the United States in violation of 8 U.S.C. § 1326. On September 14, 2012 the court
sentenced Defendant to 46 months’ custody and two years of supervised release. On September 20,
2012 Defendant filed a motion for a reduction of the sentence under 28 U.S.C. § 2255 (“Motion”).
Defendant contends that his constitutional rights to equal protection and due process have been
violated because, as an alien, he is ineligible for a one-year sentence reduction through a drug program
and an early release to a halfway house. For the reasons set forth below, the court summarily dismisses
the Motion.

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DISCUSSION
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28 U.S.C. § 2255 Review
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Claims for relief under 28 U.S.C. § 2255 must be based on a constitutional error, a
jurisdictional error, a defect resulting in a miscarriage of justice, or an unfair procedure. 28 U.S.C. §
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3:11-cr-3471, 3:12-cv-1556

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2255(a); United States v. Timmreck, 441 U.S. 780, 783-84 (1979). Under Rule 4(b) of the Rules

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Governing Section 2255 Proceedings, “[i]f it plainly appears from the motion, any attached exhibits,

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and the record of prior proceedings that the moving party is not entitled to relief, the judge must

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dismiss the motion and direct the clerk to notify the moving party.” The court does not need to hold

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an evidentiary hearing or obtain a response from the government. See 28 U.S.C. § 2255; United States

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v. Quan, 789 F.2d 711, 715 (9th Cir. 1986).

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I. Waiver

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Defendant waived his right to collaterally attack his sentence. Contract law standards govern

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the validity of plea agreements. United States v. Keller, 902 F.2d 1391, 1393 (9th Cir. 1990). A

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defendant validly waives his appellate rights if the language of the waiver encompasses his right to

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appeal on the grounds raised and he knowingly and voluntarily agrees to waive those rights. United

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States v. Rahman, 642 F.3d 1257, 1259 (9th Cir. 2011). A waiver provision barring a defendant from

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seeking collateral relief under a § 2255 motion is valid and enforceable. See United States v. Abarca,

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985 F.2d 1012, 1014 (9th Cir. 1993); see United States v. Navarro-Botello, 912 F.2d 318, 321-22 (9th

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Cir. 1990) (reasoning the public policy of finality supports upholding waivers in plea agreements).

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Defendant validly waived his right to collaterally attack his sentence when he signed a plea agreement

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filed on August 23, 2011, expressly waiving his right to appeal or to collaterally attack his conviction

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and sentence unless the court imposed a custodial sentence greater than the high end of the guidelines

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range recommended by the government. The waiver applies because at sentencing, the court imposed

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a sentence of 46 months, lower than the high end of the government’s recommended guideline range

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of 46 to 57 months. The record reveals that Defendant’s waiver was knowing and voluntary.

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Accordingly, the court dismisses the Motion.

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II. Procedural Bar

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Even if Defendant did not waive the right to collaterally attack his sentence, he has

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procedurally defaulted on his claim. A defendant procedurally defaults on claims that he could have,

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but did not raise on appeal. See Bousley v. United States, 523 U.S. 614, 621-22 (1998). Defendant did

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not raise these claims on direct appeal. He does not allege that he is innocent or that cause and

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prejudice existed to excuse his procedural default. See Murray v. Carrier, 477 U.S. 478, 485 (1996).
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Accordingly, the court dismisses the Motion.

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II. The Merits

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Defendant’s claim fails on the merits. An Equal Protection claim arises when a statute, on its

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face or when enforced, results in the differential treatment of similarly situated persons due to

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discriminatory government intent. United States v. Lopez-Flores, 63 F.3d 1468, 1472 (9th Cir. 1995);

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Plyler v. Doe, 457 U.S. 202, 216 (1982). The court must analyze the distinction under the appropriate

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level of scrutiny. Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265

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(1977). Unless a suspect classification is present, the unequal treatment must only be rationally related

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to a legitimate state interest. Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). “The fact

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that an Act of Congress treats aliens differently from citizens does not itself imply that such treatment

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is invidious.” Matthews v. Diaz, 426 U.S. 67, 80 (1976). Federal classifications based on alienage

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receive rational basis review because Congressional power to serve national interests in immigration

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and foreign relations justify selective legislation not permitted to the states. Id. at 81; see Graham v.

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Department of Pub. Welfare, 403 U.S. 365, 377 (1971).

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The exclusion of non-citizen inmates from participating in an early-release drug program

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survives rational basis scrutiny. See McLean v. Crabtree 173 F.3d 1176, 1186 (9th Cir. 1999). The

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Ninth Circuit held that the Bureau of Prisons (“BOP”) did not violate the equal protection rights of

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non-citizen plaintiffs with Immigration and Naturalization Service detainers by denying them a

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sentence reduction. The court reasoned that the government distinction between prisoners with

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detainers and prisoners without detainers did not create a suspect classification. Id. at 1186. Excluding

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prisoners with detainers from community-based treatment programs and sentence reduction eligibility

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rationally served the government’s legitimate interest in eliminating the risk of a prisoner’s escape

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during the community-based treatment phase. Id. The government did not violate Defendant’s equal

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protection rights by denying him the opportunity to participate in an early-release drug program based

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on his non-citizen status because of a legitimate interest in eliminating a risk of flight.

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In the context of early-release drug program eligibility benefits, deportable aliens are not

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similarly situated to United States citizens because citizen inmates must re-enter domestic society

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while deportable inmates are denied that privilege. Patterson-Romo v. United States, No. 10-CR-3119,
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2012 U.S. Dist. LEXIS 79319, at *3 (denying petitioner’s motion for a reduction of the sentence);

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United States v. Avendano, No. 12-CV-1495, 2012 U.S. Dist. LEXIS 89959, at *6 (denying an

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identical petition); Ortiz-Castillo v. United States, No. 11-CR-2511, 2012 U.S. Dist. LEXIS 39423,

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at *5 (denying an identical petition); Rios-Ibarra v. United States, No. 09-CV-205-JD, 2012 U.S. Dist.

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LEXIS 10977, at *5 (denying an identical petition); United States v. Brionez-Villela, No. 8:12CR73,

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2008 U.S. Dist. LEXIS 85164, at *5 (denying a similar petition). Defendant is not similarly situated

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to citizen prisoners who are eligible for early-release drug program benefits because he will not re-

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enter domestic society in the United States following incarceration.

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A challenge to the BOP policy of excluding non-citizens from a sentence reduction option does

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not fall within the scope of a 28 U.S.C. § 2255 motion. United States v. Armando Rodriguez-

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Palomares, No. 05-CR-1965-JM 2008 U.S. Dist. LEXIS 85572, at *6 (denying a motion for a

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reduction of the sentence because a downward departure based on deportable alien status is

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unavailable under § 2255). The determination of a prisoner’s eligibility for participation in an early-

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release drug program rests entirely within BOP discretion and a prisoner has no constitutionally

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protected liberty interest in early release. See 18 U.S.C. § 3621(e)(2)(B); Lopez v. Davis, 531 U.S.

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230, 243 (2001); Downey v. Crabtree, 100 F.3d 662, 670 (9th Cir. 1966). Defendant does not have a

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protected liberty interest in early release. He may not challenge the terms of an early-release drug

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program eligibility policy under a 28 U.S.C. § 2255 motion.

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In sum, the court denies the Motion to reduce Defendant’s sentence. The Clerk of Court is
instructed to close the file.

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IT IS SO ORDERED.

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DATED: September 26, 2012

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Hon. Jeffrey T. Miller
United States District Judge

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cc:

All parties

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