The opinion of the court was delivered by: Hayes, Judge
The matter pending before the Court is the motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence filed by the Defendant Manuel Gaytan-Sanchez. (Doc. # 70).
On January 26, 2005, Defendant was deported from the United States to Mexico.
On September 21, 2005, the grand jury returned an indictment charging the Defendant with a violation of 8 U.S.C. § 1326. The indictment charged that the Defendant was found in the United States on August 28, 2005 without having received consent to reapply for admission.
On May 24, 2006, a jury found Defendant guilty of being a deported alien found in the United States as charged in the indictment.
On September 18, 2006, the Court held a sentencing hearing. Prior to the sentencing hearing, the Presentence Report concluded that the advisory sentencing guideline range was 84 to 105 months based upon a total offense level of 22 and a Criminal History Category of VI. The Presentence Report concluded that a sixteen level enhancement pursuant to United States Sentencing Guidelines § 2L1.2(b)(1)(A) was warranted on the grounds that the Defendant unlawfully remained in the United States after a conviction for a felony that is a "crime of violence." The Presentence Report noted that the Defendant was deported on November 6, 1995 after his release on the felony convictions in Case Nos. SF059915A and SF059998A for Residential Burglary in violation of California Penal Code § 459. Counsel for the Defendant filed an objection to the conclusion in the Presentence Report that the Defendant was in a Criminal History Category VI. At the sentencing hearing, Counsel for the Defendant asserted that the sentencing guideline range was "far too harsh for somebody in [Defendant's] situation." (Doc. # 63 at 5). Counsel for Defendant argued that the Defendant's drug problem merited a sentence of "48 months or in the range of 48 months." Id. at 4. The Court determined that there was a sixteen level increase pursuant to U.S.S.G. § 2L1.2 (b)(1)(A) based upon the two residential burglary convictions under section 459. Id. at 8. The Court found that the applicable advisory guideline range was 84 to 105 months and sentenced the Defendant to 95 months imprisonment, to be followed by a term of supervised release of three years. (Doc. # 41).
On September 22, 2006, Defendant filed a Notice of Appeal from the Judgment to the Court of Appeals for the Ninth Circuit.
On May 27, 2008, the Court of Appeals affirmed the Judgment. The Court of Appeals concluded that the Defendant had "waived any contentions regarding his § 1326 conviction and sentence as he failed to address them in his opening brief." (Doc. # 69 at 3). The Court of Appeals further affirmed the supervised release revocation procedures applied in a separate case. U.S. v. Gaytan-Sanchez, Case No. 02-3060-GT.
Defendant moves the Court to vacate, set aside, or correct his sentence on the grounds that he was denied effective assistance of counsel. Defendant asserts that his trial counsel failed to object to the application of the sixteen level enhancement pursuant to U.S.S.G. § 2L1.2 (b)(1)(A), failed to object to the testimony of a government witness, and failed to file a motion for the extra point reduction under U.S.S.G. § 3E1.1(b). Defendant further contends that appellate counsel failed to file an appeal based upon these same issues. Plaintiff United States asserts that the Defendant was properly sentence under law applicable at the time of sentencing and that his counsel rendered reasonable professional assistance at trial and on appeal.
28 U.S.C. § 2255 provides:
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 ...