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United States v. Leyva-Lopez

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


October 19, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JESUS ARMANDO LEYVA-LOPEZ, DEFENDANT.

The opinion of the court was delivered by: Hayes, Judge

ORDER

The matter comes before the court on the Motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody filed by Defendant. Defendant moves the court to modify his sentence on the grounds that he will not able to be housed in a minimum security facility based upon his deportation status. The Court finds that "the motion and the files and records of this case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255.

Defendant moves the Court to grant him relief from the sentence imposed on the grounds that he finds himself committed to harsher time due to his status as an alien. Defendant contends that his right to due process and equal rights has been violated because he is not entitled to be housed in a minimum security facility or a community correction center the same as a prisoner who is a United States citizen.

RULING OF THE COURT

This Court has no jurisdiction to correct or modify criminal judgment to grant a relief from judgment at this stage in the proceedings. See, Rule 35(a) of the Federal Rules of Criminal Procedure.

28 U.S.C. §2255 provides that "A prisoner under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence." The Sentencing Reform Act gives the Bureau of Prisons the responsibility to "designate the place of the prisoner's imprisonment." 18 U.S.C. § 3621(b). See United States v. Cubillos, 91 F.3d 1342, 1344-45 (9th Cir. 1996). Defendant's motion does not state a challenge to the legality of his sentence as required for relief under 28 U.S.C. § 2255.

IT IS HEREBY ORDERED that the Motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody filed by Defendant is denied.

WILLIAM Q. HAYES United States District Judge

20071019

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