Gonzalez-Lozano v. USA

Filing 2

ORDER Denying Motion Under 28 U.S.C. § 2255. Signed by Judge Larry Alan Burns on 7/25/2017.(All non-registered users served via U.S. Mail Service)(lrf)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 RODRIGO GONZALEZ-LOZANO, CASE NO. 16cv2852-LAB 9 Plaintiff, 10 11 12 13 vs. ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 UNITED STATES OF AMERICA, Defendant. Two years ago Rodrigo Gonzalez-Lozano pled guilty to conspiracy to distribute 14 methamphetamine. The guidelines suggested up to 210 months in prison; the Court 15 sentenced Lozano to 99 months. Lozano asks the Court to vacate his sentence because 16 he received ineffective assistance of counsel. The Court denies the motion for two 17 reasons. 18 First, it’s untimely. Lozano filed this motion more than a year after the Court 19 entered final judgment on April 13, 2015. 22 U.S.C. § 2255(f); see United States v. 20 Schwartz, 274 F.3d 1220, 1223 (9th Cir. 2001). Second, counsel wasn’t ineffective by 21 failing to argue that the government breached its promise of a 70-month sentence. The 22 plea agreement makes clear that sentencing is in the sole discretion of the judge.1 The 23 motion is DENIED. 24 25 IT IS SO ORDERED. DATED: July 25, 2017 26 HONORABLE LARRY ALAN Burns United States District Judge 27 28 1 For example, the agreement states that the sentencing “recommendation made by the Government is not binding on the Court, and it is uncertain at this time what Defendant’s sentence will be.” Dkt. 231. -116cv2852

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