United States District Court, S.D. California
ORDER DENYING PETITIONER'S MOTION TO VACATE, SET
ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. §
Anthony J. Battaglia United States District Judge.
before the Court is Petitioner Steven Leslie Roe's motion
to vacate, set aside or correct sentence pursuant to 28
U.S.C. § 2255. (Doc. No. 44.) As explained in greater
detail below, the Court DENIES
Petitioner's motion to vacate.
April 26, 2018, Petitioner pled guilty to bringing in
unlawful alien(s) into the United States without permission
in violation of 8 U.S.C. § 1324(a)(2)(B)(iii). (Doc. No.
31.) Petitioner was sentenced to fifteen (15) months in
custody and three (3) years of supervised release. (Doc. No.
42 at 2-3.)
facts leading up to Petitioner's guilty plea are as
follows. On March 13, 2018, Petitioner entered the United
States from Mexico through the San Ysidro Port of Entry.
(Doc. No. 35 at 3.) At secondary inspection, officers
discovered an individual hiding inside a wooden shelf pressed
against the seats of the car. (Id.) The individual
was an illegal alien. (Id.) Petitioner had been
previously convicted for similar conduct in 2016 and violated
the terms of his supervised release for the prior conviction.
(Doc. No. 36 at 2.)
filed a Sentencing Memorandum prior to sentencing where
Clearly Mr. Roe struggled to reintegrate into the community
after his 2016 conviction for similar conduct. He responded
well to supervision and was placed on the administrative
caseload; however, he was simply unable afford the
necessities like food and shelter. He lost the apartment that
he had been living in and could not rent a comparable place.
He did not know where to turn.
(Id.) Further, at Petitioner's sentencing
hearing on August 20, 2018, counsel further explained,
“[m]ost recently, before this offense, his rent had
gone up from $1, 325 a month to $1, 800 a month. His
girlfriend left him. In essence, all his resources dried up.
He was living in his car.” (Doc. No. 50-1, Ex. 1 at 4.)
Petitioner's sentencing hearing, Petitioner made a
statement regarding his attorney's conduct stating,
“I think Mr. Johnson has laid it out pretty well. I was
in a desperate situation. I'm sorry about that, but Mr.
Johnson has done a very good job for me.” (Id.
Court sentenced Petitioner to 15 months in custody and noted:
I gave you a time-served sentence last time, hoping that your
age would work against recidivism, and the unfortunate
circumstances with supervision would keep you moving forward,
not stepping back. And it didn't. Here we are, two years
later, going through a similar situation, another alien
smuggling case, another set of circumstances involving
substantial risk. And it's just not acceptable frankly,
to say well, I fell on hard times, when we have pretrial
services - or the probation office - excuse me - that is
standing there willing to help, and you didn't seize on
(Doc. No. 50-1, Ex. 1 at 7.)
January 7, 2019, Petitioner filed his motion to vacate. (Doc.
No. 44.) On March 14, 2019, the Government filed its
opposition. (Doc. No. 50.) On March 21, 2019, Petitioner
filed a motion to continue to file his reply by May 2, 2019.
(Doc. No. 52.) The Court granted Petitioner's motion to
continue on April 4, 2019. (Doc. No. 53.) However, as of the
date of this Order Petitioner has not filed a reply.