Reyes v. USA

Filing 2

ORDER Denying Petition to Vacate under 28 USC 2255. Signed by Judge William Q. Hayes on 11/14/2012. (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

CASE NO. 12CR2764WQH
CASE NO. 12CV2657WQH
Plaintiff,

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vs.
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JOSE JESUS REYES,

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ORDER

Defendant.

HAYES, Judge:

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The matter before the Court is the Motion for time reduction by an inmate in federal

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custody under 28 U.S.C. § 2255. (ECF No. 24). Defendant moves the court to grant a

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downward departure on the following grounds: 1) the Attorney General could offer up to two

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points downward departure if the defendant accepts a final deportation order, and 2) he cannot

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be housed in a minimum security facility or a Community Correctional Center because of his

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deportation status. The Court finds that the issues raised in the petition are appropriate for

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summary disposition.

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APPLICABLE LAW

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28 U.S.C. §2255 provides that “A prisoner under sentence of a court established by Act

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of Congress claiming the right to be released upon the ground that the sentence was imposed

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in violation of the Constitution or laws of the United States, or that the court was without

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jurisdiction to impose such sentence, or that the sentence was in excess of the maximum

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authorized by law, or is otherwise subject to collateral attack, may move the court which
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imposed the sentence to vacate, set aside or correct the sentence.” A district court must

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summarily dismiss a § 2255 application “[i]f it plainly appears from the motion, any attached

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exhibits, and the record of prior proceedings that the moving party is not entitled to relief.”

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Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District courts.

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When this standard is satisfied, neither a hearing nor a response from the government is

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required. See Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985).
RULING OF THE COURT

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In this case, the record conclusively shows that the Defendant has waived his right to

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bring a § 2255 motion. In exchange for the Government’s concessions in the plea agreement,

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the Defendant waived “to the full extent of the law, any right to appeal or to collaterally attack

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the conviction and sentence, except a post-conviction collateral attack based upon a claim of

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ineffective assistance of counsel, unless the Court imposes a custodial sentence above the high

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end of the guideline range recommended by the Government pursuant to this agreement at the

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time of sentencing.” (ECF No. 14 at 10). This waiver is clear, express and unequivocal. Plea

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agreements are contractual in nature, and their plain language will generally be enforced if the

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agreement is clear and unambiguous on its face. United States v. Jeronimo, 298 F.3d 1149,

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1153 (9th Cir. 2005).

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At the time of sentencing, the Government recommended an adjusted offense level of

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15 and a resulting guideline range of 41-51 months. (ECF No. 20).

The Government

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recommended a sentence of 41 months, the low end of the guideline range. (ECF No. 20). The

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Court imposed a sentence of 41 months. (ECF No. 23 at 2). Pursuant to the terms of the plea

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agreement, the Defendant waived his right to collaterally attack the sentence imposed.

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Finally, the Defendant presents no grounds for relief under Section 2255. The

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Sentencing Reform Act gives the Bureau of Prisons the responsibility to “designate the place

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of the prisoner’s imprisonment.” 18 U.S.C. § 3621(b). See United States v. Cubillos, 91 F.3d

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1342, 1344-45 (9th Cir. 1996). The Court of Appeals for the Ninth Circuit has rejected the

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assertion that an alien’s equal protection rights are violated when he cannot be housed in a

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minimum security facility or a community correction center based upon his deportation status.
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See McClean v. Crabtree, 173 F.3d 1176, 1185-86 (9th Cir. 1999). In addition, the United

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States Attorney General was not required to offer the Defendant a downward departure on the

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grounds that he accepted a final deportation order.

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IT IS HEREBY ORDERED that the motion for time reduction by an inmate in federal

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custody under 28 U.S.C. § 2255 (ECF No. 24) filed by the Defendant is denied.

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DATED: November 14, 2012

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WILLIAM Q. HAYES
United States District Judge

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