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Roe v. United States

United States District Court, S.D. California

October 22, 2019

STEVEN LESLIE ROE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255

          Hon. Anthony J. Battaglia United States District Judge.

         Pending 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.

         BACKGROUND

         On 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.)

         The 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.)

         Petitioner filed a Sentencing Memorandum prior to sentencing where counsel explained:

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.)

         At 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. at 6.)

         The 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 that opportunity.

(Doc. No. 50-1, Ex. 1 at 7.)

         On 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.

         LEGAL ...


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