The opinion of the court was delivered by: Christina A. Snyder United States District Judge
ORDER DENYING PETITIONER'S MOTION FOR TIME REDUCTION BY AN INMATE IN FEDERAL CUSTODY UNDER TITLE 28 U.S.C. § 2255
Defendant-Petitioner Jesus Martin Reyes-Prado ("petitioner") is currently serving a forty-six month term of imprisonment imposed by the Court based upon his guilty plea to a violation of 8 U.S.C. § 1326(a) in United States v. Jesus Martin Reyes-Prado, ED CR No. 8-01-SGL. On August 4, 2008, petitioner filed a motion for relief pursuant to 28 U.S.C. § 2255. On June 30, 2009, the government ("respondent") filed an opposition to petitioner's motion.
Having carefully considered both parties' arguments the Court finds and concludes as follows.
According to respondent, petitioner is a citizen of Mexico and an alien of the United States. Opp., Exh 1. at 4. On or about October 4, 1996, petitioner was convicted of First Degree Burglary in the Superior Court of California in the County of Riverside, and sentenced to twenty-four months in prison. Id. On or about January 29, 2001, the same court convicted petitioner of Possession of a Controlled Substance for Sale, a drug trafficking offense. Id. Petitioner was sentenced to thirty-two months imprisonment. Id. On or about December 15, 2003, petitioner was convicted of Improper Entry by an Alien, in violation of 8 U.S.C. § 1325, in the United States District Court for the Central District of California. Id. Petitioner received a sentence of thirty months imprisonment as a result of the conviction. Id.
On or about November 1, 2000, petitioner was lawfully deported or removed from the United States. Id. On or about April 4, 2006, petitioner knowingly and voluntarily re-entered and remained in the United States without the consent of the Attorney General or his designated successor, the Secretary of Department for Homeland Security, or of any authorized representative of either the Attorney General or that Department, to reapply for admission or to otherwise re-enter and remain in the United States. Id. at 4-5. On December 5, 2007, immigration authorities found petitioner in Riverside County, within the Central District of California. Id.
On January 4, 2008, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), petitioner entered into a "fast-track" plea agreement with respondent and pled guilty to one count of Illegal Alien Found in the United States Following Deportation, in violation of 8 U.S.C. §§ 1326(a). Opp. at 1. The parties agreed that it would be appropriate for petitioner to receive a sentence at the low end of the range determined by an offense level of 17 and a criminal history category of V. Opp., Exh. 1 at 7; Opp., Exh. 2 at 2. The offense level of 17 included a 16-level enhancement for a prior deportation or removal after conviction for a felony that is a drug trafficking offense, plus a 4-level reduction for early disposition pursuant to U.S.S.G. § 5K3.1 and 3-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a), (b). Opp., Exh. 1 at 7. On April 7, 2008, Judge Stephen G. Larson of the Eastern Division of this Court accepted petitioner's guilty plea and sentenced petitioner to forty-six months in prison, followed by a three-year term of supervised release.
A motion pursuant to 28 U.S.C. § 2255 challenges a federal conviction and/or sentence to confinement where a prisoner claims "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." Sanders v. United States, 373 U.S. 1, 2 (1963).
Section 2255 provides that the Court shall conduct a hearing on a motion filed thereunder "[u]nless the motion and files and records of the case conclusively show that the [petitioner] is entitled to no relief." Rule 8 of the Rules Governing § 2255 Proceedings provides that:
[i]f the motion has not been dismissed at a previous stage in the proceeding, the judge, after the answer is filed and any transcripts or records of prior court actions in the matter are in his possession, shall, upon a review of those proceedings and of the expanded record, if any, determine whether an evidentiary hearing is required. If it appears that an evidentiary ...