UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
February 20, 2013
UNITED STATES OF AMERICA,
ALFONSO FULGENCIO-LARA, DEFENDANT.
The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255
Defendant Alfonso Fulgencio-Lara pleaded guilty, pursuant to a plea agreement, to one count of being a removed alien found in the United States. On January 23, 2013, the Court sentenced him to 42 months' imprisonment, followed by three years' supervised release. The plea agreement provided for a waiver of appeal and collateral attack, unless the Court imposed a sentence above the high end of the guideline range recommended by the government pursuant to the agreement. The government made the recommendation required by the agreement. (Compare Docket no. 15 (Plea Agreement) at 7:15--8:2 with Docket no. 20 (Government's Sentencing Summary Chart) at 2.) The Court sentenced Fulgencio-Lara below the guideline range recommended by the government; appeal and collateral attack were therefore waived.
Ignoring his waiver of collateral attack, Fulgencio-Lara on February 13 filed a motion pursuant to 28 U.S.C. § 2255, making frivolous arguments. Even if collateral attack had not been waived, the motion would be denied on the merits.
Fulgencio-Lara's motion first attempts to obtain a downward departure by accepting deportation. (Docket no. 31 at 1.) Even if the Court had authority to revisit sentencing for this reason, Fulgencio-Lara already agreed to deportation. (Plea Agreement at 9:19--27.)
The motion next argues that because Fulgencio-Lara is not a U.S. citizen, he is eligible for a lower sentence than a U.S. citizen would receive. This Court and other courts have repeatedly and consistently rejected such arguments as meritless. See, e.g., Patterson-Romo v. United States, 2012 WL 2060872 (S.D.Cal., June 7, 2012) (Gonzalez, J.); United States v. Beltran-Palafox, 2012 WL 899262 at *2 and n.14 (D.Kan., Mar. 16, 2012); Aguilar-Marroquin v. United States, 2011 WL 1344251 (S.D.Cal., Apr. 8, 2011) (Huff, J.); Rendon-Inzunza v. United States, 2010 WL 3076271 (S.D.Cal., Aug. 6, 2010) (Burns, J.). Worse yet, there are obviously no similarly-situated U.S. citizens, because the crime of being a previously-deported alien found in the United States can only be committed by non-citizens.
Finally, Fulgencio-Lara argues that he should be given an additional 2-point reduction because he has been culturally assimilated. Even if the Court had authority to reconsider its sentence on this basis, which it does not, this was already raised and considered. (See Docket no. 25 at 2:1--3:15 (Defendant's Motion for Downward Departure).)
The Motion is DENIED. Because Fulgencio-Lara waived collateral attack, and because his arguments lack even arguable merit, a certificate of appealability is DENIED. See Hayward v. Marshall, 603 F.3d 546, 553 (9th Cir. 2010) (en banc) (giving standard for issuance of certificate of appealability).
IT IS SO ORDERED.
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