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United States of America v. Gerardo Gonzalez and Jose Luis of Appealability

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


December 21, 2010

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
GERARDO GONZALEZ AND JOSE LUIS OF APPEALABILITY VALENCIA-MENDOZA, DEFENDANTS.

The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

Order Denying Certificate

Defendants Gerardo Gonzalez and Jose Luis Valencia-Mendoza filed a petition for a writ of audita querela, to obtain review of their sentence in light of subsequent amendments to the Federal Sentencing Guidelines. The Court denied the petition by order filed June 30, 2010, explaining the writ was not an available remedy. Thereafter, Defendants filed identical motions seeking to vacate judgment pursuant to Fed. R. Crim. P. 36 and Fed. R. Civ. P. 60(b). By order filed October 4, 2010, the Court denied their request for relief. Defendants appealed. The Ninth Circuit Court of Appeals has remanded the case for issuance of a certificate of appealability.

Pursuant to 28 U.S.C. § 2253, Defendants may only proceed on appeal if they "ha[ve] made a substantial showing of the denial of a constitutional right." Where, as here, the motion was denied on procedural grounds, a certificate of appealability should be granted only where jurists of reason would find both the underlying constitutional claim and the Court's procedural ruling "debatable." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, Defendants sought a writ of audita querela as a method to obtain downward modification of their sentence. However, the writ is not available under such circumstances where the applicable sentencing range has been lowered by the Sentencing Commission subsequent to imposition of sentence. Carrington v. United States, 503 F.3d 888, 890 (9th Cir. 2007). Defendants raised no issue in their motions for relief from judgment justifying further review. Defendants do not make a substantial showing of the denial of a constitutional right, and the issues raised by the petition are not "debatable." The Court DENIES a certificate of appealability.

IT IS SO ORDERED.

20101221

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