Opinion
Case No. 00-CV-323 K
June 23, 2000.
REPORT AND RECOMMENDATION
Adan Ruiz-Loera aka Eugenio Rivera-Hernandez, was prosecuted by indictment in this District for illegal reentry of a deported alien ( 8 U.S.C. § 1326). On August 25, 1999 the defendant entered a plea of guilty. The plea was based on a plea agreement that the government would recommend that Adan Ruiz-Loera receive full credit for acceptance of responsibility and be sentenced at the low end of the USSG range (File Entry # 16, # 2:99-CR-272 K, ¶ 12). In addition, movant and the government agreed to recommend as a condition of supervised release that Ruiz-Loera be deported (Id.). On October 6, 1999 movant was sentenced to 57 months confinement (File Entry, Id. #19).
Thereafter, movant made a motion under 28 U.S.C. § 2255 to reduce his sentence (2:00-CV-323 K). Petitioner had not appealed his sentence in his primary criminal case.
Movant asserts he should be granted downward departure because counsel failed to argue that defendant's ineligibility for minimum security confinement, drug program, and prerelease custody, because he was a deportable alien, should have been considered by the court for downward departure. He contends the disparity between "American inmates" and deportable aliens violates equal protection of the law.
This specific issue is a matter of conditions of confinement and not directly a matter subject to consideration under § 2255.
Movant claims he was a "permanent resident alien." He was not. He was an illegal alien and had no lawful status in the United States. He asserts counsel should have argued his deportability as a basis for downward departure under USSG § 5K2.0. The movant asserts he was convicted under 21 U.S.C. § 841(a). In fact he was not, it was 8 U.S.C. § 1326. His motion is a "boiler plate" motion frequently filed by alien inmates and it is not tailored to this movant. Movant also asserts the ineffectiveness of counsel based on the two grounds noted before.
The matter has been referred to the magistrate judge under 28 U.S.C. § 636 (b)(1)(B). This report and recommendation is submitted pursuant to the reference.
28 U.S.C. § 2255 does not provide a basis for a motion for downward departure. Only if the "sentence was imposed in violation of the constitution or laws of the United States" or in excess of the "maximum authorized by law" would movant be entitled to relief. In this case, neither ground movant raises provides a basis for relief to movant under 28 U.S.C. § 2255 as such. No appeal was taken and the movant's arguments are barred under United States v. Frady, 456 U.S. 152 (1982), since such issues cannot now be raised by collateral review.
Any claim for downward departure on the grounds asserted would not have been required by law but would be within the discretion of the sentencing judge and not a basis for § 2255 relief. United States v. Allen, 16 F.3d 377 (10th Cir. 1994). There is no showing movant is entitled to the relief or is actually innocent.
In addition, as to the substantive merit of movant's claim, his inability to participate in Bureau of Prison (BOP) programs, is not a basis for downward departure nor a violation of equal protection. 28 U.S.C. § 2255 does not allow a court to change a movant's sentence by granting a downward departure, but only to vacate a conviction or sentence. Section 2255 provides four grounds for relief:
(1) the "sentence was imposed in violation of the Constitution or laws of the United States," (2) "that the court was without jurisdiction to impose such sentence," (3) that the "sentence was in excess of the maximum by authorized by law,"or it is otherwise "subject to collateral attack." The first three grounds have no application here.
The BOP does not act in violation of Fifth Amendment equal protection standards in providing programs for prisoners who have a lawful right to remain in the country, whose rehabilitation is of interest to this country and the policy of this society, and in not providing programs for deportable aliens who have no right to be in the country and whom Congress has an interest in deterring from entering or returning. There is no merit to movant's motion. The different classification for alien inmates is reasonable and proper. See Franklin v. Barry, 909 F. Supp. 2 (D.C. 1995); Marshall v. Reno, 915 F. Supp. 426 (D.D.C. 1996) and also Riddle v. Mondragon, 83 F.3d 1179 (10th Cir. 1996); Templeman v. Gunter, 16 F.3d 367 (10th Cir. 1994). In Thye v. United States, 109 F.3d 127 (2d Cir. 1997) the court said the Bureau of Prisons has extensive latitude in assigning prisoners to facilities and in providing treatment programs. Id. p. 128. There is no equal protection violation in different treatment of aliens as to rehabilitation and other programs. The United States may treat deportable aliens and citizens differently. There is no primary interest in reformation of deportable persons. That's an interest of the country to which they may be deported. Deterring further illegal reentry is a legitimate interest of the United States as well as saving expenses. Also, special security may be justified to avoid flight to the border. In the case of American citizens, or lawful residents, reformative programs are a worthy correctional consideration. Generally, courts have rejected claims of unavailability of programs to be a basis for § 2255 or other relief. United States v. Restrepo, 999 F.2d 640 (2d Cir. 1993); United States v. Ebolum, 72 F.3d 35,37 (6th Cir. 1995); United States v. Farouil, 124 F.3d 838, 845 (7th Cir. 1997); United States v. Mendoza-Lopez, 7 F.3d 1483, 1487 (10th Cir. 1993); United States v. Holquin, 16 F. Supp. 2 d 595, 599 (D.Md. 1998). See also United States v. Garza, 1995 WL 352540 (10th Cir. 1995), 57 F.3d 950 (Table) (reaffirming Mendoza-Lopez and Restrepo). This court adopted this position in Beltran v. Lugo, #99-CV-509 W (D.Utah 1999).
The movant contends because he agreed to deportation as part of his plea bargain he was entitled to a downward departure. This court addressed the issue in Ramirez-Espinoza v. United States, 59 F. Supp.2d 1189 (D.Utah 1999). This court in Ramirez-Espinoza ruled that deportation pursuant to a plea bargain under a conviction for illegal reentry of a deported alien ( 8 U.S.C. § 1326) was not outside the heartland of the offense. This position was affirmed in Ramirez-Espinoza on appeal to the Tenth Circuit Court of Appeals as that court denied a certificate of appeal. See 28 U.S.C. § 2253(c)(1)(B).
In addition, this court held that downward departure for consent to deportation could only be appropriate if a defendant presented a colorable nonfrivolous defense to deportation. 59 F. Supp. at 1193 (citing cases). See also recently, United States v. Sentamu, 212 F.3d 127, 2000 WL 574685 (2d Cir. 2000). Movant has made no such showing. Therefore, he would have been ineligible for downward departure under USSG 5K2.0 in any event, even if the argument were made at the sentencing hearing.
In addition, 18 U.S.C. § 3583(d) authorizes deportation as a condition of supervised release where the defendant is otherwise subject to deportation. That is the circumstance in this case. The consent to deportation was part of a condition of supervised release. Since Congress expressly authorized the movant's deportation as a condition of supervised release, he cannot be eligible for a downward departure under such circumstances by accepting the deportation condition. Ramirez-Espinoza, 59 F. Supp.2d 1194.
The movant's claim that his counsel was ineffective for not raising the two issues at sentencing, now presented as a basis for downward departure, is without merit. In Strickland v. Washington, 466 U.S. 668 (1984) the Supreme Court said a defendant claiming ineffectiveness of counsel must show that counsel's conduct was a departure from the standard of a reasonable attorney and the failure was prejudicial. However, in this case movant's arguments are without substantive merit, so movant has failed to meet either of the Strickland standards. Ramirez-Espinoza, 59 F. Supp.2d at 1193.
CONCLUSION
The motion of Adan Ruiz Loera aka Eugenio Rivera-Hernandez, to vacate his sentence and for a downward departure, should be DENIED.
Copies of the foregoing Report and Recommendation are being mailed to the parties who are hereby notified of their right to object to the same. The parties are further notified that they must file objections to the Report and Recommendation, with the clerk of the court, pursuant to 28 U.S.C. § 636(b), within ten (10) days after receiving it. Failure to file objections may constitute a waiver of those objections on subsequent appellate review.