UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
November 16, 2012
UNITED STATES OF AMERICA,
RESPONDENT - PLAINTIFF,
CARLOS ARMANDO LOPEZ-BRACAMONTES, PETITIONER - DEFENDANT.
The opinion of the court was delivered by: M. James LorenzUnited States District Court Judge
On May 7 2012, this Court sentenced Petitioner Carlos Armando Lopez-Bracamontes to 60 months custody in the Bureau of Prisons after he pled guilty, pursuant to a written plea agreement, to importation of methamphetamine in violation of 21 U.S.C. §§ 952 and 960. On September 2, 2012, Petitioner filed a motion for return of property pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure. He seeks return of $400 in Mexican Pesos, a 2001 Honda Accord, and a wallet with personal identification. The Court, construing the Motion for Return of Property as a civil complaint and subject to the Federal Rules of Civil Procedure, screens the Complaint pursuant to 28 U.S.C. § 1915A*fn1 and DISMISSES it without leave to amend.*fn2
Federal Rule of Criminal Procedure 41(g) states that , "[a] person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return." However, "[a]bsent a showing that the individual requesting return of property . . . is entitled to its lawful possession, the property may not be released to him." United States v. Van Cauwenberghe,827 F.3d 424, 434 (9th Cir. 1987). The record in this case conclusively demonstrates that the property was forfeited to the United States. [Plea agreement at 2:9-16 & 9:21]. Therefore, Petitioner is not entitled to its return and his Motion fails to state a claim upon which relief can be granted. Moreover, any amendment to Petitioner's Motion would be futile. See Moss v. United States Secret Service, 572 F.3d 962, 972 (9th Cir. 2009). Accordingly, Petitioner's Motion is DISMISSED without leave to amend.
IT IS SO ORDERED.