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United States v. Alvarez-Rodriguez

United States District Court, Ninth Circuit

November 13, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
LUIS ALVAREZ-RODRIGUEZ, Defendant. Civil Case No. 13cv1812WQH.

ORDER

WILLIAM Q. HAYES, District Judge.

The matters before the Court are: (1) the motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody filed by Defendant (ECF No. 67), and (2) the motion to appoint counsel filed by Defendant (ECF No. 71).

I. Background

On August 28, 2010, Defendant was arrested at the San Ysidro Port of Entry on probable cause of attempted reentry by a removed alien. (Case No. 10cr3778, ECF No. 1 at 1-2). On November 9, 2010, Defendant was charged by indictment with attempted reentry by a removed alien under 8 U.S.C. § 1326 and with false claim to United States citizenship under 18 U.S.C. § 911. (ECF No. 1).

On November 10, 2010, Defendant was appointed counsel and entered a plea of not guilty as to both counts. (ECF No. 3).

On January 11, 2011, Defendant filed a motion to dismiss indictment. (ECF No. 14). On January 14, 2011, the Government filed a response. (ECF No. 16).

On May 9, 2011, Defendant filed a motion to dismiss indictment. (ECF No. 20). On May 23, 2011, the Government filed a response. (ECF No. 21).

On June 13, 2011, the Court issued an Order denying the two motions to dismiss indictment filed by Defendant. (ECF No. 25).

On August 23, 2011, Defendant was found guilty on Counts 1 and 2 by jury verdict. (ECF No. 38).

On November 7, 2011, a presentence report was prepared and submitted to the Court. (ECF No. 43). The presentence report detailed Defendant's criminal history, including 2 criminal history points for a felony conviction under Cal. Penal Code § 470(d) in 2005. Id. at 7. The presentence report found that Defendant's criminal history score was 13, placing Defendant in Criminal History Category VI. Id. at 9. The presentence report found that the total offense level was 22, resulting in an advisory guideline range of imprisonment for 84 to 105 months and a recommended sentence of 95 months. Id. at 16.

On November 9, 2011, Defendant filed a motion for new trial. (ECF No. 44). On November 10, 2011, Defendant added to his motion a motion to dismiss Count 2 notwithstanding the jury verdict. Id. On November 18, 2011, the Government filed a response. (ECF No. 46).

On December 13, 2011, Defendant filed a Notice of Appeal and a motion to request appointment of new CJA counsel on appeal. (ECF No. 51 and No. 52).

On December 13, 2011, the Court entered Judgment as to Defendant sentencing Defendant to a term of 70 months on Count 1 and a term of 36 months on Count 2 to run concurrently with Count 1. (ECF No. 53).

On February 1, 2012, the Magistrate Judge issued an Order appointing new counsel on appeal ...


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