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United States v. Jacquez-Lozano

United States District Court, S.D. California

April 19, 2017

UNITED STATES OF AMERICA Plaintiff,
v.
ISRAEL JACQUEZ-LOZANO Defendant.

          ORDER: DENYING MOTION TO REDUCE SENTENCING PURSUANT TO 28 U.S.C. § 2255

          Hon. Gonzalo P. Curiel United States District Judge.

         On January 30, 2017 Israel Jacquez-Lozano (“Defendant”) submitted a pro se letter to the Court, which the Court construed as 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.

         BACKGROUND

         Defendant was arrested on June 29, 2016 and charged with being a deported alien found in the United States in violation of 8 U.S.C. §§ 1326(a) and (b). (Dkt. No. 9 at 1.) At the time of his arrest, Defendant was also determined to have violated the conditions of supervised release from a previous 8 U.S.C. § 1326 conviction. (See Dkt. Nos. 9, 11.) On August 30, 2016, Defendant tendered a plea of guilty as to the present case, and on September 14, 2016, this Court accepted Defendant's guilty plea. (Dkt. Nos. 18, 23.)

         The written plea agreement between the United States of America and Defendant stipulated that the parties would recommend sentencing based on several agreed upon advisory guideline calculations, but the parties did not agree on a recommended period of supervised release. (Dkt. No. 20 at 7-8, 10.) The plea agreement acknowledged that “The sentence is within the sole discretion of the sentencing judge. … [and] if the sentencing judge does not follow any of the parties' sentencing recommendations, defendant nevertheless has no right to withdraw the plea.” (Id. at 6-7.) The plea agreement further stated, “If the Court imposes a term of supervised release, defendant agrees that he will not later seek to reduce or terminate early the term of supervised release until he has served at least two-thirds of his term of supervised release and has fully paid and satisfied any special assessments, fine, criminal forfeiture judgment and restitution judgment.” (Id.)

         Prior to sentencing, the Probation Office recommended twenty-four months in custody and no term of supervised release under U.S.S.G § 5D1.1(c). (Dkt. No. 24 at 16.) The Probation Office considered Defendant's prior criminal convictions and deportations when making its recommendation, noting that Defendant had been removed from the United States on six prior occasions. (Id. at 5-9.)

         Defendant's attorney recommended Defendant only serve six months in custody in the instant case and eight months in custody for violation of the conditions of his supervised release in the 2015 case. (Dkt. No. 25 at 1-2.) Defense counsel emphasized that Defendant's criminal history of non-immigration related offenses ended twenty-nine years ago. (Id. at 3.)

         The United States of America similarly recommended that Defendant serve six months in custody for the instant case. (Dkt. No. 28 at 2.)

         On November 10, 2016, this Court sentenced Defendant to six months imprisonment and one year of supervised release. (Dkt. No. 31 at 2-3.) On that same date, Defendant was also sentenced to nine months imprisonment for violation of his supervised release in the 2015 case, which was to run concurrent to the six month sentence in the present case. (Case No. 15-CR-0197, Dkt. No. 35 at 2.)

         On January 30, 2017, Defendant submitted a letter to the Court requesting (1) that the Court correct an error in his “data sheet” indicating that he is serving a fifteen-month sentence rather than a nine-month sentence and (2) that the Court remove his one-year term of supervised release pursuant to new amendments passed by the United States Sentencing Commission. (Dkt. No. 33.) The Court construed the letter as a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 and directed the Government to respond.

         LEGAL STANDARD

         Section 2255 of title 28 authorizes courts to “vacate, set aside, or correct the sentence” of a federal prisoner on “the ground 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 a sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). To warrant relief under § 2255, a prisoner must allege a constitutional or jurisdictional error, or a “fundamental defect which inherently results in a complete miscarriage of justice [or] an omission inconsistent with the rudimentary demands of fair procedure.” United States v. Timmreck, 441 U.S. 780, 783 (1979) (quoting Hill v. United States, 368 U.S. 424 (1962)).

         DISCUSSION

         1. Lengt ...


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