Hernandez-Beltran v. USA

Filing 2

ORDER Denying Petition to Vacate under 28 USC 2255 and Denying a Certificate of Appealability as to Fernando Hernandez-Beltran (1). Signed by Judge Barry Ted Moskowitz on 5/28/2013. Copy sent to Defendant-Petitioner.(rlu)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

Civ. Case No. 13cv452 BTM
Crim. Case No. 11cr1751 BTM

Plaintiff-Respondent,

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v.

ORDER DENYING § 2255 MOTION
AND DENYING A CERTIFICATE OF
APPEALABILITY

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FERNANDO HERNANDEZ BELTRAN,
Defendant-Movant.

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Defendant has filed a motion to vacate, set aside, or correct sentence under 28 U.S.C.
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§ 2255. For the reasons discussed below, Defendant’s motion is DENIED.
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I. BACKGROUND
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In an Indictment returned on May 4, 2011, Defendant Fernando Hernandez Beltran
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was charged with being a deported alien found in the United States in violation of 8 U.S.C.
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§ 1326(a) and (b).
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On December 8, 2011, Defendant tendered a plea of guilty, and on January 4, 2012,
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this Court accepted Defendant’s guilty plea.
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Based on a Criminal History Category of V and an Offense Level of 21, with a
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Guideline range of 70-87 months, Probation recommended a sentence of 60 months in
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addition to 2 years of supervised release. The Government recommended a sentence of 75
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months. Defendant’s attorney argued that Defendant’s criminal history is better represented
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by Criminal History Category III and that a departure of 8 levels was appropriate based on

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a combination of factors including, but not limited to, Defendant’s age, cultural assimilation,

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length of residence in the country, lack of serious immigration history, family ties, benign

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motivation for reentering, and diminished likelihood of recidivism. (Doc. No. 32, Def.’s

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Sentencing Memorandum at 4.) Defendant’s attorney suggested that a 21-month sentence

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was sufficient.

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At the sentencing hearing, the Court agreed to depart to Criminal History Category IV

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given the multiple number of points that came from motor vehicle offenses. (Tr. at 18.) The

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Court also agreed to a mitigation departure of 4 levels based on the fact that Defendant had

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lived in the United States for almost 30 years and has a wife and three children who are

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legally in the United States. (Tr. at 19.)

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The Court determined that the 21 months recommended by defense counsel was

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inadequate to deter Defendant and other persons who have similar criminal histories. Taking

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into account the § 3553(a) factors, the Court concluded that the appropriate sentence was

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37 months followed by three years of supervised release.

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II. DISCUSSION

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In his § 2255 motion, Defendant raises the following claims: (1) his prior deportation,

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which underlies his conviction in this case, was invalid because his attorney during the

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deportation proceedings failed to inform him that a legal resident who has resided in the

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United States for 7 years continuously qualifies for cancellation of removal after committing

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an aggravated felony; (2) he pled guilty based on the instructions of his attorney because his

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attorney “threatened” him by informing him that he would get a longer sentence if he went

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to trial and was found guilty; (3) the district court erred in imposing supervised release

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because he is a deportable alien; and (4) the district court miscalculated his offense level and

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failed to consider the length of the defendant’s residence and his family ties. None of

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Defendant’s claims are meritorious.

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Defendant is incorrect that a legal resident who has resided in the United States for
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7 years continuously qualifies for cancellation of removal even after committing an

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aggravated felony. Under 8 U.S.C. § 1229b(a), the Attorney General may cancel removal

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if the alien in question (1) has been lawfully admitted for permanent residence for not less

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than 5 years; (2) has resided in the United States continuously for 7 years after having been

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admitted in any status; and (3) has not been convicted of any aggravated felony.

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Defendant’s 2009 conviction in North Dakota for aggravated assault, North Dakota Code

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12.1-17-02, constitutes a “crime of violence” under 18 U.S.C. § 16(b) for the same reasons

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that it qualifies as a “crime of violence” under USSG § 2L1.2(b)(1)(A)(ii). (Transcript of

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Status Hearing on 7/24/12 at 3-7.) Therefore, at the time of his removal in 2010, Defendant

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had been convicted of an aggravated felony and was not eligible for cancellation of removal.

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8 U.S.C. § 1101(a)(43)(F). 1

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Defendant argues that he only entered a plea of guilty because his attorney told him

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that he would get a longer sentence if he went to trial. However, Defendant’s attorney did

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not provide him with any information that was false. If Defendant had gone to trial and been

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found guilty he would not have qualified for an adjustment for acceptance of responsibility.

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Therefore, the applicable guideline range would indeed be higher. Therefore, Defendant’s

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decision to plead guilty was not based on any misinformation from his attorney, and

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Defendant has not established that his guilty plea was not voluntary, knowing or intelligent.

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Defendant argues that supervised release is “not applicable” to aliens who are going

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to be deported after imprisonment. Defendant is incorrect. Effective November 1, 2011,

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USSG § 5D1.1 was amended to include subsection (c), which provides: “The court ordinarily

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should not impose a term of supervised release in a case in which supervised release is not

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required by statute and the defendant is a deportable alien who likely will be deported after

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imprisonment.” The commentary to § 5D1.1(c) explains:

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In a case in which the defendant is a deportable alien specified in subsection
(c) and supervised release is not required by statute, the court ordinarily should
not impose a term of supervised release. Unless such a defendant legally
returns to the United States, supervised release is unnecessary. If such a

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Defendant does not argue in his motion that his aggravated assault conviction does
not qualify as an aggravated felony.
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defendant illegally returns to the United States, the need to afford adequate
deterrence and protect the public ordinarily is adequately served by a new
prosecution. The court should, however, consider imposing a term of
supervised release on such a defendant if the court determines it would
provide an added measure of deterrence and protection based on the facts
and circumstances of a particular case.

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In United States v. Dominguez-Alvarado, 695 F.3d 324 (5th Cir. 2012), the Fifth Circuit
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explained that the word “ordinarily” as used in § 5D1.1(c) is not mandatory and leaves “within
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the discretion of the sentencing court the option of imposing supervised release in
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uncommon cases where added deterrence and protection are needed.” Id. at 329. The Fifth
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Circuit held that the imposition of supervised release in the case before it was justified by the
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district court’s “particularized remark” at sentencing that it “gave the sentence after looking
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at the factors in 3553(a), to deter future criminal conduct, his particular background and
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characteristics, which apparently do not make him a welcome visitor to this country.” Id. at
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330. Similarly, in United States v. Valdavinos-Torres, 704 F.3d 679 (9th Cir. 2012), the Ninth
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Circuit held that the imposition of supervised release on the deportable defendant was
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reasonable in light of the district court’s explanation:
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Because you have family here and to make sure that you understood we mean
business in this regard, I am going to impose supervised release, finding the
added deterrent value with your family members here makes it a case that is
contrary to the recommendations of the advisory Guidelines.
Id. at 693.

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As in Dominguez-Alvarado and Valdavinos-Torres, Defendant did not object to the

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imposition of supervised release at sentencing, but the Court nonetheless explained why it

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thought supervised release was necessary. The Court explained that taking into account all

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of the factors, including Defendant’s criminal history (including a serious assault charge and

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the fact that Defendant committed another offense while on probation for the assault charge),

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his recent deportation and return to the United States shortly thereafter, and his family ties

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in the United States, the sentence imposed by the Court was the least sentence that the

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Court could impose and still deter Defendant and others. (Tr. at 22-23.) The Court specified

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that the three years of supervised release was “to add a further deterrent.” (Tr. at 20.)

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Even if the Court’s explanation for imposing supervised release was inadequate,
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Defendant is not entitled to relief on this ground. Defendant did not file a direct appeal of his

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sentence. Therefore, Defendant waived his right to object to this alleged sentencing error.

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See United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir. 1995) (holding that

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“nonconstitutional sentencing errors that have not been raised on direct appeal have been

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waived and generally may not be reviewed by way of 28 U.S.C. § 2255"); United States v.

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McMullen, 98 F.3d 1155, 1157 (9th Cir. 1996)

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collateral proceedings unless they make a proper objection before the district court or in a

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direct appeal from the sentencing decision.”).

(“Petitioners waive the right to object in

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Due to his failure to appeal and raise objections at the sentencing hearing, Defendant

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has also waived his nonconstitutional sentencing claims that the Court miscalculated his

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offense level and failed to consider his family ties and length of residence in the United

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States. Moreover, Defendant’s claims lack merit. The Court properly calculated Defendant’s

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offense level – a base offense level of 8 (USSG § 2L1.2(a)), plus 16 for having been

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previously deported after a conviction for a crime of violence (§ 2L1.2(b)(1)(A)(ii)), minus 3

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for acceptance of responsibility, for a total offense level of 21. The Court departed four levels

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after determining that Defendant was entitled to a mitigation departure based on cultural

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assimilation, resulting in an offense level of 17. Thus, the Court specifically considered the

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fact that Defendant had lived in the United States for almost 30 years and had a wife and

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three children in the country. (Tr. at 19.) Defendant suggests that he was entitled to an

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adjustment for fast track. However, there was no plea agreement and Defendant was not

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part of the fast track program. (Tr. at 13.) Therefore, Defendant did not qualify for a fast

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track adjustment. The Court gave due consideration to all of the § 3553(a) factors and

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properly took into account mitigating factors such as Defendant’s family ties and length of

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residence in the United States.

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//

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//

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//

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In a supplemental pleading filed on May 2, 2013, Defendant raises an additional

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argument. He contends that under United States v. Rodriguez-Ocampo, 664 F.3d 1275 (9th

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Cir. 2011), the Court erred in enhancing his sentence by sixteen levels under USSG

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2L1.2(b)(1)(A)(ii). However, Rodriguez-Ocampo is inapplicable because unlike that case,

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here there was no deportation that violated due process. Thus, the enhancement for being

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deported after conviction for a crime of violence was appropriately applied in this case.

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III. CONCLUSION
For the reasons discussed above, Defendant’s § 2255 motion is DENIED. The Court

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DENIES a Certificate of Appealability. The Clerk shall enter judgment accordingly.

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IT IS SO ORDERED.

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DATED: May 28, 2013

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BARRY TED MOSKOWITZ, Chief Judge
United States District Court

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