ORDER DENYING § 2255 MOTION AND DENYING A CERTIFICATE OF APPEALABILITY
BARRY TED MOSKOWITZ, District Judge.
Defendant has filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. For the reasons discussed below, Defendant's motion is DENIED.
In an Indictment returned on May 4, 2011, Defendant Fernando Hernandez Beltran was charged with being a deported alien found in the United States in violation of 8 U.S.C. § 1326(a) and (b).
On December 8, 2011, Defendant tendered a plea of guilty, and on January 4, 2012, this Court accepted Defendant's guilty plea.
Based on a Criminal History Category of V and an Offense Level of 21, with a Guideline range of 70-87 months, Probation recommended a sentence of 60 months in addition to 2 years of supervised release. The Government recommended a sentence of 75 months. Defendant's attorney argued that Defendant's criminal history is better represented by Criminal History Category III and that a departure of 8 levels was appropriate based on a combination of factors including, but not limited to, Defendant's age, cultural assimilation, length of residence in the country, lack of serious immigration history, family ties, benign motivation for reentering, and diminished likelihood of recidivism. (Doc. No. 32, Def.'s Sentencing Memorandum at 4.) Defendant's attorney suggested that a 21-month sentence was sufficient.
At the sentencing hearing, the Court agreed to depart to Criminal History Category IV given the multiple number of points that came from motor vehicle offenses. (Tr. at 18.) The Court also agreed to a mitigation departure of 4 levels based on the fact that Defendant had lived in the United States for almost 30 years and has a wife and three children who are legally in the United States. (Tr. at 19.)
The Court determined that the 21 months recommended by defense counsel was inadequate to deter Defendant and other persons who have similar criminal histories. Taking into account the § 3553(a) factors, the Court concluded that the appropriate sentence was 37 months followed by three years of supervised release.
In his § 2255 motion, Defendant raises the following claims: (1) his prior deportation, which underlies his conviction in this case, was invalid because his attorney during the deportation proceedings failed to inform him that a legal resident who has resided in the United States for 7 years continuously qualifies for cancellation of removal after committing an aggravated felony; (2) he pled guilty based on the instructions of his attorney because his attorney "threatened" him by informing him that he would get a longer sentence if he went to trial and was found guilty; (3) the district court erred in imposing supervised release because he is a deportable alien; and (4) the district court miscalculated his offense level and failed to consider the length of the defendant's residence and his family ties. None of Defendant's claims are meritorious.
Defendant is incorrect that a legal resident who has resided in the United States for 7 years continuously qualifies for cancellation of removal even after committing an aggravated felony. Under 8 U.S.C. § 1229b(a), the Attorney General may cancel removal if the alien in question (1) has been lawfully admitted for permanent residence for not less than 5 years; (2) has resided in the United States continuously for 7 years after having been admitted in any status; and (3) has not been convicted of any aggravated felony. Defendant's 2009 conviction in North Dakota for aggravated assault, North Dakota Code 12.1-17-02, constitutes a "crime of violence" under 18 U.S.C. § 16(b) for the same reasons that it qualifies as a "crime of violence" under USSG § 2L1.2(b)(1)(A)(ii). (Transcript of Status Hearing on 7/24/12 at 3-7.) Therefore, at the time of his removal in 2010, Defendant had been convicted of an aggravated felony and was not eligible for cancellation of removal. 8 U.S.C. § 1101(a)(43)(F).
Defendant argues that he only entered a plea of guilty because his attorney told him that he would get a longer sentence if he went to trial. However, Defendant's attorney did not provide him with any information that was false. If Defendant had gone to trial and been found guilty he would not have qualified for an adjustment for acceptance of responsibility. Therefore, the applicable guideline range would indeed be higher. Therefore, Defendant's decision to plead guilty was not based on any misinformation from his attorney, and Defendant has not established that his guilty plea was not voluntary, knowing or intelligent.
Defendant argues that supervised release is "not applicable" to aliens who are going to be deported after imprisonment. Defendant is incorrect. Effective November 1, 2011, USSG § 5D1.1 was amended to include subsection (c), which provides: "The court ordinarily should not impose a term of supervised release in a case in which supervised release is not required by statute and the defendant is a deportable alien who likely will be deported after imprisonment." The commentary to § 5D1.1(c) explains:
In a case in which the defendant is a deportable alien specified in subsection (c) and supervised release is not required by statute, the court ordinarily should not impose a term of supervised release. Unless such a defendant legally returns to the United States, supervised release is unnecessary. If such a defendant illegally returns to the United States, the need to afford adequate deterrence and protect the public ordinarily is adequately served by a new prosecution. The court should, however, consider imposing a term of supervised release on such a defendant ...