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United States v. Gil


July 23, 2009


The opinion of the court was delivered by: VIRGINIA A. Phillips United States District Judge

[Motion filed on May 4, 2009]



On May 4, 2009, pro se Petitioner Ramon Inzuza Gil filed a "Motion for Reduction of Sentence by an Inmate in Federal Custody" pursuant to 28 U.S.C. § 2255. On May 30, 2009, Respondent United States of America filed an Answer to the Motion. Petitioner filed a Reply on June 25, 2009.


On June 18, 2008, a federal grand jury returned a single-count indictment against Petitioner. The indictment charged Petitioner with a violation of 8 U.S.C. § 1326(a), b(2), being an illegal alien found in the United States following deportation.

On August 4, 2008, Petitioner pled guilty. On November 17, 2008, the Court sentenced Petitioner to 60 months of imprisonment. Petitioner did not appeal from his conviction or his sentence.


Giving the § 2255 Motion a liberal construction, Petitioner asserts a claim for ineffective assistance of counsel. Petitioner claims his counsel "fail[ed] to object to the disparity in Defendant[']s sentence, since other Defendants were getting 4 points deduction under the fast track policy in the same court and for the same crime the Defendant was convicted and sentence[d] for." (See § 2255 Mot. at 5.) In other words, Petitioner claims his counsel should have sought a fast track disposition of his case at sentencing, even though the government did not offer it, because it would have resulted in a downward departure of offense level and lower sentence under the advisory United States Sentencing Guidelines, consistent with the sentences received by similarly situated defendants. (Id. ("I asked Counsel Kay Otani to ask for the fact track policy 4 point downward departure [at sentencing], but he answer [sic] that the D.A. would get mad."); Reply at 3-5.)

Furthermore, Petitioner claims his sentence runs afoul to one of the sentencing factors, 18 U.S.C. § 3553(a)(6): "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." (Id. at "Attachment for Ground One.") As a result of his counsel's ineffective assistance, Petitioner claims his "sentence is 14 months steeper than it should be and he prays this court would correct his sentence." (Id.)


Pursuant to section 2255,

[a] prisoner in custody 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.

28 U.S.C. § 2255(a).

The petitioner bears the burden of establishing any claim asserted in his § 2255 motion. To warrant relief because of constitutional error, the petitioner must show that the error was one of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings. See Hill v. United States, 368 U.S. 424, 428 (1962).


In his Motion, Petitioner requests that his sentence be reduced to the term of imprisonment that would have been imposed if the Court had applied a downward departure for a "fast-track" case. (See § 2255 Mot. at 5, "Attachment for Ground One.") The basis for his Motion rests solely on his claim of ineffective assistance of counsel. (See id. at 5.)

As the U.S. Supreme Court has held, "the proper standard for attorney performance is reasonably effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish ineffective assistance of counsel, Petitioner must prove (1) "counsel's representation fell below an objective standard of reasonableness," and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. at 688, 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. Under the second component, Petitioner must demonstrate his attorney's errors rendered the result unreliable or the proceedings fundamentally unfair. Fretwell v. Lockhart, 506 U.S. 364, 372 (1993); Strickland, 466 U.S. at 694.

A claim of ineffective assistance of counsel requires proof of both of these elements. "[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed." Strickland, 466 U.S. at 697.

Petitioner argues his counsel's performance was deficient because the latter failed to raise the fast-track sentencing disparity issue with the Court at the sentencing hearing. (See § 2255 Mot. at 5.) He contends his counsel's performance "became constitutionally deficient, undermining the proper function of the adversarial process so the proceedings cannot be relied upon as having produce[d] a just result." (Reply at 4.)

In Opposition, the Government argues defense counsel's performance was neither deficient nor unreasonable. The Government shows defense counsel inquired about whether the prosecution would offer a "fast-track" disposition to Petitioner at an early stage in the case. (See Opp'n at 3, 5-6; McLaughlin Decl. ¶ 2-5.) After considering defense counsel's inquiry, the Government decided not to offer Petitioner an early disposition plea offer under the so-called "fast-track" program. (Id.)

"The fast-track program allows federal prosecutors to offer shorter sentences to defendants who plead guilty at an early stage in the prosecution and agree to waive appeal and other rights. In 2003, Congress explicitly authorized downward sentencing departures for fast-track programs ...." United States v. Gonzalez-Zotelo, 556 F.3d 736, 739 (9th Cir. 2009).

Petitioner has failed to meet either of the two Strickland prongs, much less both. First, his counsel's performance was not deficient constitutionally. See Strickland, 466 U.S. at 687, 694. His counsel's performance did not fall below an objective standard of reasonableness. Petitioner's lawyer inquired with Government counsel early in the case regarding the availability of a fast-track disposition in Petitioner's case and attempted to negotiate such a disposition. As the Government argues, the decision to offer a fast-track is within the exclusive control of the United States Attorney's Office. (Opp'n at 5.) Accordingly, after the Government decided not to offer the requested plea disposition, there was nothing left on this issue for defense counsel to argue to the Court at Petitioner's sentencing hearing.

As to the second prong under Strickland, Petitioner has failed to show he suffered prejudice as a result of any act or omission of his trial counsel. See Strickland, 466 U.S. at 687, 694. Even if Petitioner's counsel had asked the Court for the fast-track four-level downward departure at sentencing, despite Petitioner not being offered a fast-track, the argument would have been futile. See James v. Borg, 24 F.3d 20, 27 (1994) (counsel's failure to file a futile motion does not constitute ineffective assistance of counsel). Fast-track sentencing disparities are not sufficient bases for the Court to depart downward under 18 U.S.C. § 3553(a)(6). Gonzalez-Zotelo, 555 F.3d at 741.

Accordingly, Petitioner has failed to satisfy either prong of the Strickland test for ineffective assistance of counsel. He has shown no grounds for relief and his Motion is DENIED. See Strickland, 466 U.S. at 687, 694.


For the foregoing reasons, the Court DENIES Petitioner's § 2255 Motion, and dismisses this action with prejudice.


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