Free Order on Motion for Downward Departure - District Court of California - California

Case 3:07-cr-03223-IEG

Document 24

Filed 06/24/2008

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1 2 3 4 5 6 7 8 9 10 11 12 vs. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant Pedro Ruelas-Lopez has filed a "Request for Downward Departure" which the Court construes as a motion under Fed. R. Crim. P. 35 to reduce his sentence. The Court DENIES Defendant's motion. Defendant pled guilty to three counts of illegal entry in violation of 8 U.S.C. § 1325. The Court sentenced Defendant to 48 months in custody followed by one year of supervised release. Defendant now moves for reduction of his sentence, and asks the Court to remove the one year of supervised release. Defendant argues the supervised release is not authorized by law. Rule 35 does not authorize the Court to grant the relief Defendant requests. The Court may reduce a defendant's sentence under Rule 35 only to correct a clear error or upon the government's motion based upon defendant's substantial assistance. Neither of these circumstances are present in this case. In addition, although it may be appropriate in certain circumstances to construe a motion under Rule 35 as a motion to correct a sentence under 28 U.S.C. § 2255, United States v. Eatinger, 902 F.2d 1383, 1384 (9th Cir. 1980), Defendant waived his right to appeal or collaterally -107cr3223

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA, Plaintiff, PEDRO RUELAS-LOPEZ, Defendant.

CASE NO. 07cr3223-IEG Order Denying Motion for Downward Departure

Case 3:07-cr-03223-IEG

Document 24

Filed 06/24/2008

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attack the plea, conviction, and sentence. [Plea Agreement, Doc. No. 17, p. 4.] Therefore, Defendant's motion is DENIED. IT IS SO ORDERED.

DATED: June 23, 2008 IRMA E. GONZALEZ, Chief Judge United States District Court

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