Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona TIMOTHY F. ANDREW S Assistant U.S. Attorney Arizona State Bar No. 021658 4035 South Avenue A Yuma AZ 85365 Telephone (928) 344-1087 Email: [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff-Respondent, v. Roman Alberto Gonzalez, Defendant-Movant. CR-04-890-PHX-SRB CV-05-2349PHX-SRB(ECV) RESPONSE IN OPPOSITION TO MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255

The United States of America, by and through undersigned counsel, hereby opposes 15 defendant Roman Alberto Gonzalez's Motion to Vacate, Set Aside, or Correct Sentence pursuant 16 to 28 U.S.C. § 2255 for the reasons set forth in the attached Memorandum of Points and 17 Authorities. 18 19 20 21 22 23 24 25 26 27 28 s/ TIMOTHY F. ANDREWS Assistant U.S. Attorney PAUL K. CHARLTON United States Attorney District of Arizona Respectfully submitted this 24 th day of March 2006.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. II. I.

MEMORANDUM OF POINTS AND AUTHORITIES Issues Presented Defendant-Movant Roman Alberto Gonzalez is currently confined in the Cibola Correctional Institution in New Mexico. On November 25, 2005, he filed a pro se motion pursuant to 28 U.S.C. § 2255 seeking relief on the following grounds: (1) that he was eligible for but did not receive a downward departure at his sentencing, apparently under Section 5K2.0 of the United States Sentencing Guidelines; (2) that he was denied effective assistance of counsel at his sentencing; (3) that he is entitled to a downward departure based on his postsentencing rehabilitation; and (4) that he is entitled to a downward departure based on his status as a removable alien. On January 24, 2006, the Court ordered the Government to respond to Defendant's motion.

Procedural History Defendant was arrested at the San Luis Port of Entry in San Luis, Arizona on June 27,

2004 after inspectors at the port discovered that he had driven into the United States from Mexico in a vehicle that was carrying 31 kilograms of cocaine. Defendant was subsequently charged with importing the cocaine and with possessing with intent to distribute the cocaine. On August 18, 2004, Defendant and the Government executed a written plea agreement, where the defendant waived his right to indictment and pled guilty to the foregoing charge by way of information (CR 17). On March 29, 2005, the Court accepted the plea agreement and sentenced Defendant to a 37-month term of imprisonment (CR 26, 27).

ANALYSIS A. The Defendant's Motion is Timely. The Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132,

110 Stat. 1214, which became effective on April 24, 1996, establishes both procedural and substantive limits on the filing of motions for collateral relief by prisoners under 28 U.S.C. 2

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§ 2255. Particularly, Section 105 of AEDPA establishes a one-year period of limitations for such motions. Having been filed within one year of the date upon which his conviction became final, defendant's motion is timely. B. Defendant's Eligibility for a Downward Departure under USSG §5K2.0.

5 Defendant claims that he is entitled to a downward departure based on a "mitigating 6 circumstance...that was not adequately taken into consideration." (Defendant's Motion at 4). 7 Defendant appears to be arguing that he is entitled to a downward sentencing departure under 8 USSG §5K2.0. The Court does have authority to depart below a calculated guideline range if 9 it finds that a particular case presents a mitigating circumstance that is of a kind or to a degree 10 not adequately taken into consideration by the Sentencing Commission in formulating the 11 Sentencing Guidelines. USSG § 5K2.0; 18 USC § 3553(b). 12 Commission intended for such departures to be applied sparingly. USSG § 5K2.0, comment, 13 n.3(B)(i). 14 Defendant claims he is entitled to a downward departure, but he has articulated no facts 15 to support his claim. At Defendant's sentencing hearing, the government did move for a 16 downward departure under USSG §5K2.0 based on some unique factors in the case, and the 17 Court granted that motion (CR 26, Exhibit B at 9-12). The government has thoroughly examined 18 Defendant's case file and, other than what has already been accounted for in the government's 19 §5K2.0 motion at sentencing, which the Court granted, there are no other factors present that 20 would warrant further departure. Defendant has articulated no facts to support a downward 21 departure either at his own sentencing or in his §2255 motion, and because any unusual 22 circumstances in his case have already been accounted for, Defendant's claim should be denied. 23 24 C. Defendant's Ineffective Assistance of Counsel Claim 25 Defendant next argues that he did not receive effective assistance of counsel at his 26 sentencing hearing. To obtain relief for a claim of ineffective assistance of counsel, a defendant 27 28 3 However, the Sentencing

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must show: (1) that counsel's representation fell below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88, 692 (1984). Here, Defendant has articulated no facts to support an argument that his counsel was deficient in any manner. Furthermore, the government has reviewed the Defendant's file and can find no ground under which Defendant could raise such a claim. At Defendant's change of plea hearing, he was asked whether he was satisfied with his lawyer's representation and he said that he was (Exhibit A at 6). He was also asked whether there had been anything that his lawyer failed to do for him and he indicated there wasn't. Id. Furthermore, Defendant made no statement at sentencing that indicated he was dissatisfied with his lawyer. When offered the opportunity to speak at his sentencing, Defendant expressed remorse for his actions and asked the Court for leniency, but said nothing about the performance of his lawyer. (Exhibit B at 11). Because Defendant has made nothing more than a blanket assertion and has failed to articulate why he believes his attorney was deficient and how that deficiency may have prejudiced his case, the Court should dismiss this claim. D. Defendant's Post-Sentencing Rehabilitation.

17 Defendant next claims that he is entitled to a downward departure based on his post18 sentencing rehabilitation. Defendant is asking the Court to modify his sentence based on his 19 rehabilitative efforts. 20 otherwise lawful with two exceptions: (1) when the Director of the Bureau of Prisons moves the 21 Court for such a modification and the Court finds that extraordinary and compelling reasons 22 warrant the modification; and (2) to the extent permitted by statute or by Rule 35 of the Rules 23 of Criminal Procedure, which provides for post-sentencing reductions based on substantial 24 assistance. See 18 U.S.C. § 3582(c)(1)(A); Rule 35(b), Fed.R.Crim.P. Here, there has been no 25 motion for modification by the Director of the Bureau of Prisons nor has there been any motion 26 by the government for a post-sentencing downward reduction for substantial assistance. 27 28 4 The Court generally may not modify a term of imprisonment that is

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Even if Defendant were successful on his remaining arguments and were to be resentenced by the Court, his rehabilitation should have no bearing on the re-sentencing. Under the advisory Sentencing Guidelines, post-sentencing rehabilitative efforts are not an appropriate basis for a downward departure when re-sentencing a defendant. USSG §5K2.19. The

Sentencing Commission views such departures as "(1) inconsistent with the policies established by Congress under 18 U.S.C. § 3624(b) and other statutory provisions for reducing the time to be served by an imprisoned person; and (2) inequitably [beneficial] only to those who gain the opportunity to be resentenced de novo." USSG §5K2.19, comment. (backg'd). Because

defendant is precluded by statute from being re-sentenced based on his rehabilitation, and because the advisory guidelines discourage such departures, the Court should deny Defendant's request.

E. Defendant's Status as a Deportable Alien. Defendant's final point of contention, which involves his status as a removable alien, is that he has been unfairly denied the benefit of receiving a reduced sentence or placement in a minimum security facility. Defendant is apparently claiming that the denial of these privileges, which are afforded to U.S. Citizen inmates, violates his constitutional rights. Defendant's argument is best analyzed as an issue regarding the applicability of the Equal Protection Clause of the 14 th Amendment to the Constitution to his case. To state a claim for violation of the Equal Protection Clause under the 14 th Amendment, the defendant must allege he was treated differently from other similarly situated persons. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) ; see also Santos v. United States, 940 F. Supp. 275, 280-81 (D. Haw. 1996). Deportable aliens are not "similarly situated" to United States Citizens. See United States v. Adeleke, 968 F.2d 1159 (11th Cir. 1992); United States v. Young, 1998 WL 234730 (2d Cir. 1998); Santos v. United States, 940 F. SUPP. 275 (D. Haw. 1996). The 9 th Circuit has touched on the issue of inmates and deportable status in the past. In United States v. Charry-Cubillos, 91 F.3d 1342 (1996), the Government appealed district court's 5

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decision to grant a defendant convicted for possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1), a downward departure based on his ineligibility for community confinement and minimum security imprisonment. The 9 th Circuit vacated the district court's decision granting a downward departure based on a defendant's deportable status and the effect that status would have on his term and conditions of incarceration. Id. at 1345. Although the Court held it could not categorically rule out a downward departure in such a case, it did not speak favorably of departing downward based on a defendant's status as a deportable alien. The Court noted that the Sentencing Reform Act gives the Bureau of Prisons discretion to designate the place of confinement, taking into account the prisoner's history and characteristics, and that 8 U.S.C. § 1252(a)(2)(A) requires the Bureau of Prisons to release a deportable alien to the custody of the Attorney General upon completion of his or her sentence. Id. at 1344-45. Because Defendant's status as a deportable alien does not render him "similarly situated" to United States Citizens for purposes of incarceration at a minimum security facility, he has no basis for relief.

IV.

Conclusion Defendant has presented no ground under which he can seek relief by collaterally

attacking his sentence.

For all of the foregoing reasons, the Government requests that

Defendant's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, be denied and this action dismissed. Respectfully submitted this 24 th day of March 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/ TIMOTHY F. ANDREWS Assistant United States Attorney

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CERTIFICATE OF SERVICE I hereby certify that, on March 24, 2006, I transmitted the attached document by mail to the following, who are not registered participants of the CM/ECF filing system. Roman Alberto Gonzalez Cibola Correctional Institution Milan, NM by: s/ Timothy F. Andrews

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