Rodriguez v. USA

Filing 2

ORDER Denying Petition to Vacate under 28 USC 2255 and Denying a Certificate of Appealability. Signed by Judge Barry Ted Moskowitz on 8/28/2013.(All non-registered users served via U.S. Mail Service)(rlu)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

UNITED STATES OF AMERICA,

12
13
14

v.

Civil Case No. 13cv0471-BTM
Crim. Case No. 12cr3496-BTM

Plaintiff-Respondent,

ORDER DENYING § 2255
MOTION AND DENYING
CERTIFICATE OF
APPEALABILITY

ROMAN RODRIGUEZ,

15

Defendant-Movant.

16
17

Roman Rodriguez (“Defendant”), a federal inmate proceeding pro se, has filed

18

a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For

19

the reasons set forth below, Defendant’s § 2255 motion and a Certificate of

20

Appealability are DENIED.

21

I. BACKGROUND

22
23

On August 23, 2012, an information was filed, charging Defendant with illegally

24

re-entering the United States in violation of 8 U.S.C. § 1326(a) & (b). (Information,

25

August 23, 2012, ECF No. 11.) On September 11, 2012, Defendant pled guilty

26

pursuant to a plea agreement. (Plea Agreement, September 11, 2012, ECF No. 15.) On

27

January 11, 2013, the Court sentenced Defendant to a 21-month term of imprisonment.

28

(ECF No. 26.)
1

13cv0471-BTM; 12cr3496-BTM

1

II. DISCUSSION

2

On February 27, 2013, Defendant filed a motion to vacate, set aside, or

3

correct his sentence pursuant to 28 U.S.C. § 2255. (ECF No. 28.) Under § 2255, a

4

prisoner may move to vacate, set aside, or correct his sentence on the ground that

5

“the sentence was imposed in violation of the Constitution or laws of the United

6

States, or that the court was without jurisdiction to impose such sentence, or that the

7

sentence was in excess of the maximum authorized by law, or is otherwise subject

8

to collateral attack.”

9

Defendant argues that his sentence should be reduced on the following

10

grounds: 1) he will stipulate to deportation, 2) he has been denied community

11

confinement due to his alien status, which is a violation of equal protection, and 3)

12

cultural assimilation. He also argues that his counsel was ineffective in failing to

13

raise these grounds at sentencing.

14

In the Plea Agreement, Defendant waived his right to collaterally attack his

15

sentence except on the basis of ineffective assistance of counsel. Specifically, the

16

Plea Agreement states:

17

22

In exchange for the Government’s concessions in this plea agreement,
defendant waives, to the full extent of the law, any right to appeal or to
collaterally attack the conviction and sentence, except a postconviction collateral attack based on a claim of ineffective assistance
of counsel, unless the Court imposes a custodial sentence above the
high end of the guideline range recommended by the Government
pursuant to this agreement at the time of sentencing. If the custodial
sentence is greater than the high end of that range, defendant may
appeal, but the Government will be free to support on appeal the
sentence actually imposed.

23

(Plea Agreement at 10.) “A defendant’s waiver of his appellate rights is enforceable

24

if (1) the language of the waiver encompasses his right to appeal on the grounds

25

raised, and (2) the waiver is knowingly and voluntarily made.” United States v.

26

Rahman, 642 F.3d 1257, 1259 (9th Cir. 2011) (citing United States v. Jeronimo, 398

27

F.3d 1149, 1153 (9th Cir. 2005)). The Ninth Circuit has also recognized that a

28

waiver barring collateral attack of a conviction or sentence is enforceable when

18
19
20
21

2

13cv0471-BTM; 12cr3496-BTM

1

knowingly and voluntarily made. See United States v. Abarca, 985 F.2d 1012, 1014

2

(9th Cir. 1993). Defendant does not contend that his waiver was not knowing and

3

voluntary. Moreover, the Court imposed a sentence of 21 months, which is less

4

than the Government’s recommended guideline range of 37 to 46 months.

5

Therefore, Defendant may only collaterally attack his sentence on the grounds of

6

ineffective assistance of counsel.

7

A defendant seeking to challenge the validity of his conviction on the ground

8

of ineffective assistance of counsel must demonstrate that his counsel’s performance

9

was deficient and that this deficient performance prejudiced him. Strickland v.

10

Washington, 466 U.S. 668, 687–88 (1984). For the defendant to establish prejudice

11

where he has pled guilty, he must show a reasonable probability that “the end result

12

of the criminal process would have been more favorable by reason of a plea to a

13

lesser charge or a sentence of less prison time.” Missouri v. Frye, — U.S. — , 132

14

S. Ct. 1399, 1409 (2012).

15

Here, Defendant cannot show ineffective assistance of counsel. First, as to

16

his argument that he should receive a 2-point downward departure because he will

17

stipulate to deportation, he already stipulated to deportation as part of the Plea

18

Agreement. See Plea Agreement at 9. Because he entered into the Plea Agreement

19

as part of the fast-track program, he received a -4 downward departure pursuant to

20

United States Sentencing Guidelines (“USSG” or “Guidelines”) § 5K3.1.

21

Stipulating to deportation was part of the fast-track agreement. Thus, Defendant has

22

already received the benefit that he now seeks.

23

Defendant next argues that he should receive a -2 downward departure

24

because he is ineligible for community confinement. He further argues that this is a

25

violation of equal protection. The Court already ruled on this issue at the time of

26

sentencing. As reflected in the minute order, the Court considered whether or not to

27

depart from the guideline range based on the fact that the defendant is ineligible for

28

community confinement and early release, but declined to depart and found no due
3

13cv0471-BTM; 12cr3496-BTM

1

process or equal protection violation, citing its order in United States v. Rodriguez-

2

Tovar, Case No. 11-cr-5558-BTM (S.D. Cal. January 7, 2013). (See ECF No. 26.)

3

The Ninth Circuit has previously held that illegal alienage is not a suspect

4

classification, Plyler v. Doe, 457 U.S. 202, 223 (1982), and therefore the

5

government need only demonstrate a rational basis for treating aliens and non-aliens

6

differently with regard to community confinement. McLean v. Crabtree, 173 F.3d

7

1176, 1186 (9th Cir. 1999).

8
9

In McLean, prisoners subject to Immigration and Naturalization Service
(“INS”) detainers were excluded from community-based treatment programs, and

10

therefore ineligible for sentence reduction on that basis. They argued that the

11

exclusion violated due process and equal protection. The Ninth Circuit rejected

12

both arguments. First, the Ninth Circuit held that it was not a due process violation

13

because the statutory provision creating community confinement, 18 U.S.C. §

14

3621(e)(2)(B), “does not create a liberty interest in sentence reduction.” 173 F.3d at

15

1185. Second, the Ninth Circuit held that it was not a violation of equal protection

16

because there was a rational basis for excluding prisoners with detainers, namely

17

that they were more likely to flee a halfway house because they might be deported

18

after release from custody. Id. at 1184, 1186. See also Santos v. United States, 940

19

F. Supp. 275, 281 (D. Haw. 1996) (“one’s status as a deportable alien, which may

20

result in ineligibility for less restrictive terms of confinement, nevertheless cannot

21

justify a downward departure”). Therefore, the Court holds that there is no due

22

process or equal protection violation.1 Furthermore, because there is no

23

constitutional violation, Defendant’s counsel was not ineffective for failing to raise

24

this argument.

25

Finally, Defendant requests a -2 downward departure for cultural

26
1

Defendant also argues that his ineligibility violates the “Equal Rights Act”
because no person shall be discriminated based on nationality. Defendant is essentially
claiming that he is treated differently based on his status as an alien. Defendant’s equal
28 protection claim encompasses this claim. Accordingly, the result is the same, and this
claim also fails on the merits.
27

4

13cv0471-BTM; 12cr3496-BTM

1

assimilation. Under the Guidelines, a sentence reduction for cultural assimilation

2

may be appropriate where the defendant has resided primarily and continuously in

3

the United States since childhood, those cultural ties are the primary reason the

4

defendant illegally reentered or remained in the United States, and the downward

5

departure is not likely to increase the risk to the public of further crimes by the

6

defendant. See USSG § 2L1.2, Comment 8. Here, however, according to the

7

Presentence Report, Defendant lived in Mexico and attended school there until he

8

was 16, when he moved to the United States to reside with friends. His eleven

9

siblings still live in Mexico, as does his son, and Defendant has stated that he only

10

came to the United States to seek employment and ultimately intended to return to

11

Mexico. Therefore, the Court holds that a downward departure based on cultural

12

assimilation is inappropriate. See United States v. Rivas-Gonzalez, 384 F.3d 1034,

13

1044 (9th Cir. 2004) (“[C]ultural assimilation [is] a proper basis for granting a

14

downward departure for persons brought to the United States as children, who had

15

adapted to American culture in a strong way and who, after deportation, returned to

16

the United States for cultural rather than economic reasons.”)

17

Defendant has not shown ineffective assistance of counsel. Moreover,

18

notwithstanding that he has waived his right to collaterally attack his sentence, his

19

arguments fail on the merits. Therefore, his § 2255 motion is DENIED.

20

//

21

//

22

//

23

//

24

//

25

//

26

//

27

//

28

//
5

13cv0471-BTM; 12cr3496-BTM

III. CONCLUSION

1
2

For the reasons above, the Court DENIES Defendant’s motion under 28 U.S.C.

3

§ 2255 and DENIES a Certificate of Appealability. The Clerk shall enter judgment

4

accordingly.

5
6

IT IS SO ORDERED.

7

DATED: August 28, 2013

8
9

BARRY TED MOSKOWITZ, Chief Judge
United States District Court

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6

13cv0471-BTM; 12cr3496-BTM