Aguirre-Olivas v. USA, No. 5:2012cv03908 - Document 3 (N.D. Cal. 2013)

Court Description: ORDER Denying Motion for Sentence Reduction and 2255 Motion, ***Civil Case Terminated. Signed by Judge D. Lowell Jensen on 1/29/13. (jg, COURT STAFF) (Filed on 1/29/2013)

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Aguirre-Olivas v. USA 1 2 3 4 5 6 7 Doc. 3 Jaime Aguirre-Olivas, ) ) Petitioner, ) ) v. ) ) ) ) UNITED STATES OF AMERICA, ) ) Respondent. ) ______________________________) *E-FILED - 1/29/13* Nos. C-12-03908-DLJ CR-10-00319-DLJ ORDER 8 9 On June 28, 2011 Defendant Jaime Aguirre-Olivas (Aguirre- 11 For the Northern District of California United States District Court 10 Olivas) was sentenced to 42 months in prison for a violation of 8 12 U.S.C. § 1326, Illegal Re-entry following deportation. 13 6, 2012 Aguirre-Olivas filed a Motion for Time Reduction by an 14 Inmate in Federal Custody in his criminal case, CR 10-0319. 15 On February On July 16, 2012, Aguirre-Olivas filed a Motion under 28 U.S.C. § 2255 16 17 18 to Vacate, Set Aside or Correct his sentence (case C12-3908). The Time Reduction Motion claims violation of his equal 19 rights as he asserts that were he a United States Citizen he would 20 be entitled to a one year reduction of his sentence for 21 participation in a drug program during his incarceration. 22 23 The 2255 Motion claims ineffective assistance of counsel, alleging that at the sentencing counsel for defendant failed to 24 25 correctly address defendant’s prior convictions. Aguirre-Olivas 26 also contends that counsel was ineffective in that he claims 27 counsel caused him to waive his right to appeal. 28 Having now considered the papers submitted, and the applicable law, the Court hereby denies the motion. 1 2 3 I. Background On April 21, 2010, Aguirre-Olivas was charged in a single count indictment with illegal re-entry following deportation in 4 violation of 8 U.S.C. § 1326(a) and (b). On April 12, 2011, 5 6 Aguirre-Olivas entered an “open” guilty plea. The Court informed 7 Aguirre-Olivas that the maximum prison sentence for this offense 8 was 20 years, the maximum fine was $250,000 and the maximum term of 9 supervised release was three years. At that court appearance a date 11 For the Northern District of California United States District Court 10 was set for sentencing. Prior to the sentencing, the United States Probation Office 12 issued a Pre-Sentence Investigation Report (“PSR”) recommending a 13 14 sentence of 60 months. On June 21, 2012, Aguirre-Olivas’ defense 15 counsel filed a nineteen page sentencing memorandum in which she 16 argued that the Court should enter a sentence of 40 months. The 17 government filed a sentencing memorandum which recommended a 18 sentence of 77 months. 19 The sentencing hearing was held on June 28, 2011. The Court 20 made the following sentencing calculation: the proper base offense 21 22 level of 8 was to be increased by 16 levels because of defendant’s 23 prior State of California conviction of Assault with a Deadly 24 Weapon, a crime of violence. After the three level reduction for 25 acceptance of responsibility, defendant’s adjusted offense 26 level was 21. As Aguirre-Olivas was in Criminal History Category 27 VI, his USSG Sentence Guideline range was 77 to 96 months. 28 2 1 At the sentencing hearing defense counsel made numerous 2 arguments urging the Court to impose a reduced sentence of 40 3 months. Defense counsel objected to the 16-level enhancement, both 4 because the conviction was over 15 years old and also as the 5 6 enhancement was excessive in light of the circumstances where there was serious bodily injury to the victim. See Sentencing Transcript, 8 at pp. 4-5. 9 prior conviction was “double-counted” because it was counted for 10 purposes of increasing the offense level but had also been taken 11 For the Northern District of California United States District Court 7 Defense counsel further argued that Aguirre-Olivas’ into consideration in raising his criminal history. Id. at 16-18. 12 Finally, defense counsel urged the Court to take into account 13 14 various mitigating factors, including Aguirre-Olivas’ wife’s 15 medical condition, his father’s poor health, and daughter’s 16 learning disability. Id. at 12-14. 17 The Court considered all of defense counsel’s objections. 18 The Court noted that the enhancement was part of the Sentencing 19 Guidelines and so should be included in the calculation but that 20 the Court would take all of counsel’s arguments into consideration 21 22 in determining the final sentence to be imposed. The Court 23 sentenced defendant to a below guidelines sentence of 42 months in 24 light of the age of defendant’s prior conviction, the circumstances 25 of the conviction, and the sentencing factors under § 3553(a). Id. 26 6, 22. 27 On July 16, 2012, Aguirre-Olivas filed his Petition, in which 28 3 1 he alleges three grounds for habeas relief. First, he argues that 2 his attorney provided him with ineffective assistance of 3 counsel because she failed to address the fact that his prior 4 Assault with a Deadly Weapon conviction should not have led to a 5 6 16-level enhancement. He appears to also argue that his 7 attorney was ineffective because she failed to challenge the 8 enhancement due to his prior felony conviction despite that it was 9 not proven beyond a reasonable doubt nor admitted by him, in 11 For the Northern District of California United States District Court 10 violation of his Apprendi rights. Third, he argues that “pursuant to the new Supreme Court ruling in Pepper [sic], [he] is entitled 12 relief, in regard to [his] post-sentencing rehabilitation.” See 13 14 15 16 Aguirre-Olivas’ Petition at page 8. II. Legal Standard A claim for ineffective assistance of counsel is subject to 17 the two-prong test set forth in Strickland v. Washington, 466 U.S. 18 668, 687 (1984). A lawyer's performance is constitutionally 19 deficient only when it “so undermines the proper functioning of the 20 adversarial process that the [proceedings] cannot be relied upon as 21 22 23 hav[ing] produced a just result.” Id. at 687. A petitioner claiming ineffective assistance of counsel bears 24 the burden of demonstrating that, under all the circumstances of 25 his case, (1) his counsel's performance was so deficient that it 26 fell below an “objective standard of reasonableness” and (2) his 27 counsel's deficient performance prejudiced him, meaning “there is a 28 4 1 reasonable probability that, but for counsel's unprofessional 2 errors, the result of the proceeding would have been different.” 3 Hensley v. Crist, 67 F.3d 181,184-85 (9th Cir. 1995). Furthermore, 4 “[r]eview of counsel's performance is highly deferential and there 5 6 is a strong presumption that counsel's conduct fell within the wide 7 range of reasonable representation.” United States v. 8 Ferreira-Alameda, 815 F.2d 1251, 1253 (9th Cir. 1987). 9 11 For the Northern District of California United States District Court 10 An evidentiary hearing is not required “if the petitioner’s allegations, when viewed against the record, fail to state a claim for relief.” United States v. McMullen, 98 F.3d 1155, 1158 (9th 12 Cir. 1996). 13 14 15 III. Aguirre-Olivas’ 2255 Motion A. Counsel’s Alleged Failure Regarding the 16 level enhancement. 16 Aguirre-Olivas first contends that his counsel was 17 18 ineffective as he asserts that she “failed to address the fact 19 that [his] prior Assault with a Deadly Weapon conviction did not 20 warrant a 16-point enhancement.” 21 there is no factual support in the record for this claim, but that 22 the record indicates that counsel for Aguirre-Olivas’ made numerous 23 The Court finds not only that efforts to argue this very point, and ultimately the Court 24 concurred with his counsel and gave Aguirre-Olivas a sentence which 25 26 was substantially below the guidelines range. Counsel for Aguirre- 27 Olivas filed a nineteen-page sentencing memorandum addressing this 28 point and at the sentencing hearing argued that a 16 level 5 1 enhancement to the applicable base offense level was excessive 2 because Aguirre-Olivas’ prior conviction for Assault with a Deadly 3 Weapon was not a particularly serious one and because the 4 conviction was over 15 years old. See Sentencing Transcript at 5 6 7 pages 4-5. While the Court still found that the 16 level enhancement was 8 appropriate under the current sentencing guidelines, the Court 9 considered defense counsel’s objections and arguments in its 11 For the Northern District of California United States District Court 10 determination of the appropriateness of a sentencing variance under Booker. Moreover, defense counsel made additional arguments that 12 Aguirre-Olivas’ prior conviction for Assault with a Deadly Weapon 13 14 was “double-counted” because it was counted for purposes of his 15 criminal history and offense level. Id. at 16-18. Finally, defense 16 counsel urged the Court to consider additional mitigating factors, 17 including Aguirre-Olivas’ wife’s poor medical condition, his 18 father’s poor medical condition, and daughter’s learning 19 disability. Id. at 12-14. 20 Aguirre-Olivas has failed to meet his burden of demonstrating 21 22 that his counsel's performance was constitutionally deficient, as 23 his counsel in all ways represented him diligently. 24 Aguirre-Olivas’s claim fails because he has suffered no prejudice 25 as there was no error in the application of the 16-level sentence 26 enhancement and also Aguirre-Olivas received a below guidelines 27 sentence. 28 6 Moreover, 1 2 3 B. Counsel’s Alleged Failure To Challenge Aguirre-Olivas’ Prior Felony Conviction On the Grounds That It Was Not Proven Beyond A Reasonable Doubt Aguirre-Olivas argues that his attorney was ineffective 4 because she failed to challenge that the fact of the prior felony 5 6 conviction having occurred prior to his deportation had not proven 7 beyond a reasonable doubt or admitted by him, therefore violating 8 his rights under Apprendi v. New Jersey, 530 U.S. 466 (2000). This 9 argument has been foreclosed by Almendarez-Torres v. United States, 11 For the Northern District of California United States District Court 10 523 U.S. 224 (1998). See United States v. Almazan-Becerra, 482 F.3d 1085, 1091 (9th Cir. 2007) (reaffirming that a prior 12 conviction need not be submitted to a jury and proved beyond a 13 14 reasonable doubt). See also United States v. Beng-Salazar, 452 15 F.3d 1088, 1091 (9th Cir. 2006) (upholding sentencing enhancement 16 based on prior conviction of crime of violence not admitted by 17 defendant). 18 violence conviction as a sentencing enhancement was valid and 19 Therefore, the use of Aguirre-Olivas’ prior crime of his defense counsel’s action in not objecting was not deficient. 20 C. Alleged Waiver of Right to Appeal 21 22 Aguirre-Olivas alleges without any factual support that his 23 counsel caused him to waive his right to appeal. 24 the record at the sentencing hearing that the Court advised 25 Aguirre-Olivas of his right to appeal and the timing and notice 26 requirement attendant to that right. 27 It is clear from Therefore it is clear that Aguirre-Olivas was on notice of his rights. There is nothing before 28 7 1 the Court which would indicate that defense counsel interfered wiht 2 those rights, and therefore there is no basis for the Court to find 3 defense counsel’s performance ineffective. 4 D. Is Aguirre-Olivas entitled to relief under Pepper? 5 Aguirre-Olivas argues that “pursuant to the new Supreme Court 6 ruling in Pepper [sic], [he] is entitled relief, in regard to [his] 8 post-sentencing rehabilitation.” See Aguirre-Olivas’ Petition at 9 page 8. Aguirre-Olivas relies on Pepper v. United States, 562 U.S. 10 ––––, 131 S.Ct. 1229 (2011). In Pepper, the Supreme Court held that 11 For the Northern District of California United States District Court 7 when a defendant's sentence has been set aside on appeal and his 12 case remanded for re-sentencing, a district court may consider 13 14 evidence of a defendant's rehabilitation since his prior sentencing 15 to award a downward variance from the advisory Guidelines range. 16 Id. at 1236. However, Pepper is inapplicable to Aguirre-Olivas, as 17 Pepper does not address habeas corpus proceedings after a final 18 sentence has been ordered which is the case here. 19 IV. Aguirre-Olivas’ Motion for Sentence Reduction 20 In his motion for Time Reduction Aguirre-Olivas claims 21 22 violation of his equal rights as he asserts that were he a United 23 States Citizen he would be entitled to a one year reduction of his 24 sentence for participation in a drug program during his 25 incarceration. 26 and rejected by the Ninth Circuit. 27 However, this argument has been raised previously F.3d 117 (9th Cir. 1999). 28 8 See McLean v. Crabtree, 173 1 2 3 V. Conclusion For the reasons stated above, petitioner’s Motion for Sentence Reduction and 2255 Motion are both DENIED. 4 5 6 IT IS SO ORDERED 7 8 Dated: January 29, 2013 _________________________ 9 D. Lowell Jensen United States District Judge 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 1 2 Copy of Order Mailed on 1/29/13 to: 3 4 5 6 Jaime Aguirre-Olivas PO Box 5300 Adelanto, CA 92301 Copy of Order E-Filed to Counsel of Record: 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
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