Sanchez-Sanchez v. USA

Filing 2

ORDER denying Petition to Vacate under 28 USC 2255. Signed by Judge Gordon Thompson, Jr on 10/7/14.(All non-registered users served via U.S. Mail Service)(ksr)

FI LED

1

2

[ O:T 0"7 2014"J

3

--......... ..
'"
CLERK, U.S. fh51 R:C; COURT
~

4

SO

~".-.

~~".,,----~

ERN OISTR,CT Of CAUf-DANIA

BY

5
6

7

8
9
10
11

UNITED STATES DISTRICT COURT

12

SOUTHERN DISTRICT OF CALIFORNIA

13
14

DOMINGO SANCHEZ-SANCHEZ,

15

Petitioner,

16

v.

)
)

}C'; No.
~ No.

1k0892GT)
IT-2623GT

)

) ORDER
17

UNITED STATES OF AMERICA
Respondent.

18
19

)
)
)

-----------------------------------)

20

On October 26,2012, Petitioner, Domingo Sanchez-Sanchez ("Mr. Sanchez"), filed a Motion

21

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

22

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

23

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

24

matter, including a review of Mr. Sanchez's brief filed, the authorities cited therein and the

25

arguments presented. For the reasons stated below, Mr. Sanchez's Motion to Modify Sentence is

26

DENIED.

27

II

28

II

1

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

2

Deported Alien Found in the United States, in violation of 8 U.S.C. § 1326(a) and (b). In the

3

written plea agreement, Mr. Sanchez explicitly waived his right to appeal andlor collaterally attack

4

his conviction or sentence. The Ninth Circuit has long acknowledged that the terms of a plea

5

agreement are enforceable. See, United States v. Baramdyka, 95 F.3d 840,843 (9th Cir. 1996),

6

cert. denied, 117 S.Ct. 1282 (1997). Since Mr. Sanchez expressly waived his statutory right to

7

appeal or collaterally attack his sentence in his plea agreement, Mr. Sanchez is now precluded from

8

challenging that sentence pursuant to 28 U.S.C. § 2255. See, United States v. Abarca, 985 F.2d

9

1012, 1014 (9th Cir. 1993) (holding that a knowing and voluntary waiver of a statutory right is

10

enforceable).

11

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

12

attack his sentence, his petition would still fail. In essence, Mr. Sanchez argues that because ofhis

13

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

14

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

15

departure because of his status. However, Mr. Sanchez's argument that the Court should depart

16

downward because he is a deportable alien is precluded by statute and current Ninth Circuit case

17

law. By statute, the Court may depart downward only if there are "aggravating or mitigating

18

circumstances ... not adequately taken into consideration by the Sentencing Commission." 18

19

U.S.C. § 3553(b).

20

factor that the district court may consider for sentencing purposes. United States v. Alvarez-

21

Cardenas, 902 F.2d 734,737 (9th Cir. 1990).1 Accordingly,

22

II

23

II

24

II

Specifically, the Ninth Circuit has held that the threat of deportation is not a

25
26
27
28

I The 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 half way
house pursuant to 18 U.S.C. § 3624(c). See United States v. Zepeda-Valles, 87 F.3d 1325 (9th
Cif. 1996).

2

12CR0892

1

IT IS ORDERED that Mr. Sanchez's Motion to Modify Sentence is DENIED.

2

IT IS SO ORDERED.

3

12 ,~fl-

4

5

GORDON THOMPSON,R
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

12CR0892