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MARK WINDSOR (No. 190589)
16 N. Marengo Street, Suite 300
Pasadena, California 91101
Telephone (626) 792-6700
Facsimile (213) 232-3609
windsorlaw@gmail.com
Attorney for Defendant, Victor Gomez-Ortiz
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. )
)
VICTOR GOMEZ-ORTIZ )
)
Defendants. )
______________________________ )
CASE NO. CR 04-1239-CAS
NOTICE OF MOTION AND MOTION OF
DEFENDANT GOMEZ-ORTIZ TO CORRECT
SENTENCE PURSUANT TO 28 U.S.C. §2255
Date: April 26, 2010
Time: 1:30 p.m.
TO THE CLERK OF THE ABOVE-ENTITLED COURT AND TO THE UNITED
STATES OF AMERICA AND ITS ATTORNEYS AND ALL OTHER INTERESTED
PARTIES:
PLEASE TAKE NOTICE that defendant VICTOR GOMEZ-ORTIZ, by and
through his attorney of record Mark Windsor, and pursuant to 28 U.S.C. §2255, moves this
Court to correct his sentence in the above referenced case. This motion is based upon the
arguments below and upon such other items that may be presented to the court before the
hearing and at the hearing on this matter.
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ARGUMENT
I. INTRODUCTION
This Court sentenced Mr. Gomez Ortiz for violating 21 U.S.C. §§ 846,
841(a)(1), 841(b)(1)(A), conspiracy to distribute cocaine and possession of cocaine
with intent to distribute. The Judgment and Commitment Order stated that Mr.
Gomez-Ortiz shall spend 70 months in federal prison. The Order also stated that
the federal sentence shall run concurrently with a state sentence that Mr. Gomez-
Ortiz was serving for the Los Angeles County Superior Court, Case Number
BA267759-03.
State authorities arrested Mr. Gomez-Ortiz for the state offense on July 3,
2004. On May 17, 2005, Mr. Gomez-Ortiz was convicted in state court for selling,
transporting, or offering to sell cocaine, in violation of California Health and
Safety Code § 11352. Los Angeles County Superior Court sentenced him to spend
six years in state prison. California Department of Corrections took custody of Mr.
Gomez-Ortiz on June 15, 2005.
While he was serving his state sentence, federal authorities took custody of
Mr. Gomez-Ortiz, by writ, for this case on November 15, 2005. Federal authorities
ultimately convicted Mr. Gomez-Ortiz and this Court sentenced him, as explained
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above, on January 10, 2007. During the sentencing hearing, Mr. Gomez-Ortiz
requested that the Court depart downward for the time that he had already spent in
state custody, and subsequently in federal custody, awaiting the conclusion of this
federal case. He was concerned that the Bureau of Prisons would not impose his
federal sentence fully concurrently with his state sentence. The Court declined to
depart, assuring Mr. Gomez-Ortiz that the Bureau of Prisons would properly
calculate his sentence.
Federal authorities returned Mr. Gomez-Ortiz to state authorities on January
24, 2007 to serve the rest of his state sentence. On September 25, 2007, federal
authorities took custody of Mr. Gomez-Ortiz to continue to serve his federal
sentence. Mr. Gomez-Ortiz completed his state sentence on September 27, 2007,
and remains in federal custody today.
The Bureau of Prisons has calculated that Mr. Gomez-Ortiz will be released
on May 20, 2011. On May 25, 2008, Mr. Gomez-Ortiz filed a grievance with the
Bureau of Prisons. Mr. Gomez-Ortiz requested that the Bureau follow this Court’s
Judgment and Commitment Order by: (1) imposing his state and federal sentences
concurrently and (2) crediting his federal sentence with time spent in state and
federal custody prior to his federal conviction. Mr. Gomez-Ortiz has exhausted all
available administrative remedies with the Bureau.
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II. MR. GOMEZ-ORTIZ REQUESTS THAT THE COURT CORRECT
HIS SENTENCE BY ADJUSTING IT FOR TIME THAT HE SPENT
IN CUSTODY PRIOR TO HIS FEDERAL CONVICTION.
Federal law provides a remedy to an individual in custody serving a federal
sentence which is subject to collateral attack:
A prisoner in custody under sentence of a court established by Act of
Congress claiming the right to be released upon 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 sentence, or that the
sentence was in excess of the maximum authorized by law, or is otherwise
subject to collateral attack, may move the court which imposed the sentence
to vacate, set aside or correct the sentence.
28 U.S.C. § 2255(a). This statute provides the “exclusive procedural mechanism”
by which an individual may contest the legality of his sentence. Harrison v.
Ollison, 519 F.3d 952, 955 (9th Cir. 2008). It is only available to an individual
who is in custody and claims the right to be released. United States v. Thiele, 314
F.3d 399, 402 (9th Cir. 2002). Pursuant to the statute, the individual may
challenge the manner in which the district court applied the Sentencing Guidelines
to calculate his sentence. See, e.g., United States v. Guthrie, 931 F.2d 564, 570-73
(9th Cir. 1991) (correcting a sentence under the guidelines on a § 2255 motion).
Even though the Guidelines are now advisory, they still remain central to the
sentencing regime. United States v. Booker, 543 U.S. 220, 245 (2005).
Specifically, the district court first considers the applicable guideline range,
grounds for departure in policy statements, and factors outlined in 18 U.S.C. §
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3553(a). Rita v. United States, 551 U.S. 338, 351 (2007). After calculating a
sentence range, the district court may consider the sentencing requirements and
options related to imprisonment under Chapter Five of the Guidelines. U.S.S.G.
§1B1.1(h).
A. MR. GOMEZ-ORTIZ IS ENTITLED TO AN ADJUSTMENT
UNDER U.S.S.G. §5G1.3(B), WHERE THE BUREAU OF
PRISONS WILL NOT CREDIT HIS FEDERAL SENTENCE
WITH THE TIME THAT HE SERVED BEFORE HIS
FEDERAL CONVICTION.
The Guidelines state that the Court must adjust a sentence for any period of
imprisonment already served on the undischarged term of imprisonment, if the
Court determines that the period will not be credited by the Bureau of Prisons.
U.S.S.G. §5G1.3(b)(1). An adjustment under §5G1.3 is included in the initial
calculation of the sentence. United States v. Armstead, 546 F.3d 1097, 1111-12
(9th Cir. 2008), rehearing en banc denied by 552 F.3d 769 (9th Cir. 2008). The
adjustment is not a departure from the Guidelines; nor is it a credit against the
minimum sentence. United States v. Rivers, 329 F.3d 119, 122 (2d Cir. 2002).
Where the court declines to make the adjustment, the Court departs from the
Guidelines and should adequately explain the reason for the deviation. Armstead,
552 F.3d at 784.
Application of §5G1.3(b)(1) is a matter for the Court, not the Bureau of
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Prisons. United States v. Drake, 49 F.3d 1438, 1440 (9th Cir. 1995); see also
United States v. Kiefer, 20 F.3d 874, 875-76 (8th Cir. 1994). The court first
applies §5G1.3 and other relevant sections of the Guidelines, before the Bureau
may award credits. United States v. Wilson, 503 U.S. 329, 335 (1992).
Adjustment under §5G1.3 may be made, even if the resulting sentence falls below
the mandatory minimum. Drake, 49 F.3d at 1441. Where it is clear that the
Bureau would not fully credit Mr. Gomez-Ortiz’s sentence for time that he had
spent in custody for the undischarged state term, Mr. Gomez-Ortiz’s sentence must
be adjusted under U.S.S.G. §5G1.3(b)(1). See, e.g., United States v. Knight, 562
F.3d 1314, 1329 (11th Cir. 2009).
The Bureau is responsible for administering a defendant’s sentence, which
includes awarding credit for prior custody. 18 U.S.C. § 3585(b); United States v.
Wilson, 503 U.S. 329, 335 (1992). The Bureau issues program statements which
are internal agency guidelines for administering sentences. See Reno v. Koray, 515
U.S. 50, 60-61 (1995). These Guidelines limit the number of days granted for
prior custody credit, where (1) federal and state terms are concurrent and (2) the
date of release on the state sentence (“state raw EFT”) is the same or before the
date of release on the federal sentence (“federal raw EFT”). Bureau of Prisons, PS
5880.28, at 1-22 (Feb. 14, 1997). Prior custody credit is given only for time spent
in presentence custody, beginning on or after the date of the federal offense, until
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the date that the first state or federal sentence begins to run. Bureau of Prisons, PS
5880.28, at 1-22 (Feb. 14, 1997) (citing Willis v. United States, 438 F.2d 923 (5th
Cir. 1971)).
This Court sentenced Mr. Gomez-Ortiz to serve his state and federal
sentences concurrently. Mr. Gomez-Ortiz’s state raw EFT was May 17, 2011,
while his federal raw EFT was October 10, 2012. The Bureau of Prisons followed
its guidelines and only awarded Mr. Gomez-Ortiz presentence custody credit for
time served between the date of his federal offense and the date that his state
sentence began to run. Federal authorities charged Mr. Gomez-Ortiz on August
25, 2004, his state sentence began to run on May 17, 2005, and federal authorities
convicted him on January 10, 2007. The Bureau’s guidelines do not credit his
sentence for the 604 days between his state conviction and his federal conviction.
See Appendix A, Calculation of Gomez-Ortiz’s Sentence. More significantly,
Gomez-Ortiz spent 426 of these 604 days in federal prison, awaiting the conclusion
of his federal case.
Ultimately, Section 5G1.3(b) operates as a safeguard to protect individuals
from being subject to duplicative sentences for the same criminal conduct. Witte v.
United States, 515 U.S. 389, 405 (1995); United States v. Armstead, 552 F.3d 769,
784 (9th Cir. 2008). It mitigates the possibility that two separate prosecutions for
related conduct will grossly increase a defendant’s sentence. Witte, 515 U.S. at
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405. It has a particularly vital function where the Bureau’s guidelines explicitly
forbid the full award of credit for presentence custody and jeopardize the purpose
behind the section. See, e.g., United States v. Dorsey, 166 F.3d 558, 564 (3d Cir.
1999).
The Bureau has not credited Mr. Gomez-Ortiz’s 70 month federal sentence
with more than 20 months that he had already spent in jail for his state offense and
awaiting for his federal trial. The Court recognized that the Bureau should impose
his state and federal sentences concurrently. However, the Bureau has failed to do
so by not fully crediting his sentence because its program statements strictly forbid
it. This problematic paradox is exactly the type of situation that §5G1.3(b) was
designed to prevent. Ultimately, the district court has the authority to adjust a
sentence under §5G1.3(b)(1). United States v. Drake, 49 F.3d 1438, 1440 (9th Cir.
1995). Mr. Gomez-Ortiz requests that the Court adjust his sentence for the 604
days that he had already served prior to his conviction.
B. AFTER HIS SENTENCE IS ADJUSTED, MR. GOMEZ-ORTIZ
IS ENTITLED TO BE RELEASED FROM FEDERAL
CUSTODY.
The Bureau of Prisons currently projects that Mr. Gomez-Ortiz will be
released from federal custody on May 20, 2011. After this Court adjusts his
sentence under §5G1.3(b)(1) for 604 days, Mr. Gomez-Ortiz will be eligible for
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APPENDIX A
CALCULATION OF GOMEZ-ORTIZ’S SENTENCE
RELEVANT DATES
Arrest by State Authorities = 07/03/2004
Date of Federal Offense = 08/25/2004
Conviction by State Authorities (72 months with 318 days credit) = 05/17/2005
Writ into Federal Custody = 11/10/2005
Conviction by Federal Authorities (70 months concurrent) = 01/10/2007
Returned to State Authorities = 01/24/2007
Transferred to Federal Authorities = 09/25/2007
Completed State Conviction = 09/27/2007
DEFINITIONS
Raw EFT is the full term date of the sentence that does not include any time credit;
it is calculated by adding the total length of the sentence to be served to the
beginning date of the sentence. Bureau of Prisons, PS 5880.28, at 1-14 (Feb. 14,
1997).
Qualified Non-Federal Presentence Credit (“QNFPC”) is the time spent in non-
federal presentence custody from the date of the federal offense, that does not
overlap any other authorized prior custody time credit, until the date the first
sentence begins to run, federal or non-federal. Bureau of Prisons, PS 5880.28, at
1-14A (Feb. 14, 1997).
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Date of the Offense is the date on which the criminal act takes place; the Bureau
uses the date that is shown on the Judgment and Commitment Order. Bureau of
Prisons, PS 5880.28, at 1-14A (Feb. 14, 1997).
Willis Credits are awarded for any time spent in non-federal presentence custody,
beginning on or after the date of the federal offense, until the date that the first
sentence begins to run, federal or non-federal; credit is awarded only if the federal
and non-federal sentences have been imposed concurrently, and the raw EFT of the
non-federal term is equal to or less than the raw EFT of the federal term. Bureau
of Prisons, PS 5880.28, at 1-22 (Feb. 14, 1997); see also Willis v. United States,
449 F.2d 923 (5th Cir. 1971).
BUREAU OF PRISONS CALCULATION
The Bureau of Prisons calculated Mr. Gomez-Ortiz’s credit based on Example No.
7, Bureau of Prisons, Program Statement 5880.28, at 1-22B (Feb. 14, 1997).
Federal Raw EFT = 01/10/2007 + 70 months = 11/10/2012
State Raw EFT = 05/17/2005 + 72 months = 05/17/2011
The Court imposed Mr. Gomez-Ortiz’s state and federal to run concurrently. See
Exhibit 1, Judgment and Commitment Order, January 10, 2007.
Mr. Gomez-Ortiz’s state raw EFT (05/17/2011) is less than his federal raw EFT
(11/10/2012).
Therefore, the Bureau of Prisons awarded Mr. Gomez-Ortiz Willis credits for the
time he served in custody from the date of his federal offense until the conviction
of his state offense. See Exhibit 2, Inmate Request to Staff Member
Response/Records, February 7, 2008.
Willis Credits
[Date of Federal Offense] – [Date State Sentence Began to Run]
08/25/2004 – 05/17/2005 = 265 days
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Federal RAW EFT with Willis Credits
[Federal Raw EFT] – [Willis Credits]
11/10/2012 – 265 days = 02/19/2012
Good Conduct Time
The Bureau also awards good conduct time (“GCT”). 18 U.S.C. § 3624(b); Bureau
of Prison, Program Statement 5880.28, at 1-40 (Feb. 21, 1992). A prisoner may
receive 54 days of credit for every year that he serves towards his sentence, if the
prisoner complies with the disciplinary rules of the prison. 18 U.S.C. § 3624(b).
Assuming that Mr. Gomez-Ortiz complies with the prison’s disciplinary rules, the
Bureau projected that he will receive 274 days of credit total. See Exhibit 3,
Bureau of Prisons, Sentence Monitoring (Feb. 7, 2008).
Federal RAW EFT with Willis and GCT Credits
[Federal Raw EFT] – [Willis Credits] – [GCT Credits]
11/10/2012 – 265 days – 274 days = 05/20/2011.
This calculation conforms with the date that the Bureau has calculated. See
Attachment 2, Inmate Request to Staff Member Response/Records, February 7,
2008.
CALCULATION OF SENTENCE WITH §5G1.3 ADJUSTMENT
The court shall adjust for any period of imprisonment already served on an
undischarged state term if the court determines that the period will not be credited
by the Bureau of Prisons. U.S.S.G. §5G1.3(b)(1).
The Bureau does credit Mr. Gomez-Ortiz’s sentence with time that he served for
his state sentence. As explained above, this Willis credit includes 265 days that he
served between the date of his federal offense (08/25/2004) and the date of his
state conviction (05/17/2005).
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However, Mr. Gomez-Ortiz also served time on his state sentence between the date
of his state conviction (05/17/2005) and the date of his federal conviction
(01/10/2007). The Bureau does not credit his sentence with this time.
Number of Days Not Credited by the Bureau
[Date of State Conviction] – [Date of Federal Conviction]
05/17/2005 – 01/10/2007 = 604 days
With the §5G1.3 Adjustment, GCT, and Willis Credits, Mr. Gomez-Ortiz Is Entitled
to Be Released
[Federal RAW EFT with Willis and GCT Credits] – [§5G1.3 Adjustment]
05/20/2011 – 604 days = 09/23/2009
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CR-104 (11/04) JUDGMENT & PROBATION/COMMITMENT ORDER Page 1 of 5
United States District Court
Central District of California
UNITED STATES OF AMERICA vs. Docket No. CR04-1239(A)-CAS JS-3
Defendant VICTOR GOMEZ-ORTIZ Social Security No.
9
0
9
2
2
1
1
0
2
5
0
5
akas: Victor Gomez, Victor Gomez Ortiz; Pana (Last 4 digits)
JUDGMENT AND PROBATION/COMMITMENT ORDER
MONTH DAY YEAR
In the presence of the attorney for the government, the defendant appeared in person on this date. 01 10 2007
COUNSEL X WITH COUNSEL Mark Windsor, CJA, Appointed
(Name of Counsel)
PLEA X GUILTY, and the court being satisfied that there is a factual basis for the plea. NOLO
CONTENDERE
NOT
GUILTY
FINDING There being a finding/verdict of X GUILTY, defendant has been convicted as charged of the offense(s) of:
Conspiracy to Distribute Cocaine in violation of 21 USC 846, 841(a)(1), 841(b)(1)(A), as charged in Count 1 of the First
Superseding Indictment
JUDGMENT
AND PROB/
COMM
ORDER
The Court asked whether defendant had anything to say why judgment should not be pronounced. Because no sufficient cause
to the contrary was shown, or appeared to the Court, the Court adjudged the defendant guilty as charged and convicted and
ordered that: Pursuant to the Sentencing Reform Act of 1984, it is the judgment of the Court that the defendant is hereby
committed on Count 1 of the First Superseding Indictment to the custody of the Bureau of Prisons to be imprisoned for a term
of: Seventy (70) Months. This sentence shall run concurrent to the sentence Gomez is currently serving for Los Angeles County
Superior Court case no. BA267759-03.
It is ordered that the defendant shall pay to the United States a special assessment of $100.00, which is
due immediately.
Upon release from imprisonment, the defendant shall be placed on supervised release for a term of
five (5) years under the following terms and conditions:
1. The defendant shall comply with the rules and regulations of the U. S. Probation Office
and General Order 318;
2. The defendant shall refrain from any unlawful use of a controlled substance. The
defendant shall submit to one (1) drug test within fifteen (15) days of release from
imprisonment and at least two (2) periodic drug tests thereafter, not to exceed eight (8)
tests per month, as directed by the Probation Officer;
3. The defendant shall participate in an outpatient substance abuse treatment and counseling
program that includes urinalysis, saliva and/or sweat patch testing, as directed by the
Probation Officer. The defendant shall abstain from using illicit drugs and alcohol, and
abusing prescription medications during the period of supervision;
4. During the course of supervision, the Probation Officer, with the agreement of the
defendant and defense counsel, may place the defendant in a residential drug treatment
program approved by the United States Probation Office for treatment of narcotic
addiction or drug dependency, which may include counseling and testing, to determine if
the defendant has reverted to the use of drugs, and the defendant shall reside in the
treatment program until discharged by the Program Director and Probation Officer;
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