The opinion of the court was delivered by: VIRGINIA A. Phillips United States District Judge
[Motion filed on May 4, 2009]
MEMORANDUM AND ORDER DENYING RESPONDENT'S MOTION UNDER 28 U.S.C. SECTION 2255 TO VACATE OR SET ASIDE CONVICTION
I. SUMMARY OF PROCEEDINGS
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.
III. PETITIONER'S CONTENTIONS
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 ...