Opinion
CaseNo. 2:03-CV-851TC
November 7, 2003
ORDER
On July 18, 2002, in Case No. 1:02-CR-00043TC, Petitioner Alfredo Martinez-Villareal pled guilty to illegal reentry of a deported alien in violation of 8 U.S.C. § 1326 (a). (Dkt. #12.) After hearing arguments from the government and the defendant, the court sentenced Mr. Martinez-Villareal to 46 months imprisonment, followed by 36 months of supervised release. (Dkt. #17.)
Mr. Martinez-Villareal's supporting memorandum, a form pleading, erroneously states that he pled guilty to charges of controlled substance violation pursuant to 18 U.S.C. § 841 (a)(1) 846.
This matter is now before the court on Petitioner's Motion for Reduction of Sentence Pursuant to 28 U.S.C.A. § 2255. Mr. Martinez-Villareal, proceeding pro se, contends that he was denied effective assistance of counsel. Specifically, Mr. Martinez-Villareal claims that his attorney was ineffective in failing to raise the issue of deportability as a mitigating circumstance at sentencing.
The court recognizes that pro se litigants' pleadings should be construed more liberally than if outside counsel had drafted them,Haines v. Kerner, 404 U.S. 519, 520 (1972); Whitney v. State of N.M., 113 F.3d 1170, 1173-74 (10th Cir. 1997). But even under this more lenient standard, Mr. Martinez-Villareal's claims for relief are meritless. For the reasons set forth below, Petitioner's motion to vacate is DENIED.
ANALYSIS
Ineffective Assistance of Counsel
To demonstrate ineffective assistance of counsel, "a petitioner must establish both that his attorney's representation was deficient and that he was prejudiced by that deficiency." James v. Gibson, 211 F.3d 543, 555 (10th Cir. 2000), cert. denied, 531 U.S. 1128 (2001) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). The standard applies to sentencing proceedings and plea hearings as well as at trial. U.S. v. Glover, 97 F.3d 1345, 1349 (10th Cir. 1996). To succeed on the deficiency prong, a petitioner "must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy," James, 211 F.3d at 555 (citing Strickland, 466 U.S. at 689). "Judicial scrutiny of counsel's performance is highly deferential." Id. To succeed on the prejudice prong, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland. 466 U.S. at 694. There is a strong presumption that counsel provided effective assistance, and a § 2255 petitioner has the burden of proof to overcome that presumption. James, 211 F.3d at 555.
Mr. Martinez-Villareal maintains that counsel failed to argue for downward departure on the basis of Mr. Martinez-Villareal's status as a deportable alien. In support of this argument, Mr. Martinez-Villareal cites U.S. v. Smith, which held that "a downward departure may be appropriate where the defendant's status as a deportable alien is likely to cause a fortuitous increase in the severity of his sentence." 27 F.3d 649, 655 (D.C. Cir. 1994). However, his reliance on theSmith decision and related authority is misplaced.
The sentencing court can depart downward from the sentencing guideline range under the relevant guideline if there is a "mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." USSG § 5K2.0 (2002) Where, as here, an offender characteristic or circumstance is not, in the Commission's view, ordinarily relevant to the question of whether downward departure is warranted, it may become relevant if that characteristic or circumstance "is present to an unusual degree and distinguishes the case from the 'heartland' cases covered by the guidelines." USSG § 5K2.0; Koon v. U.S., 518 U.S. 81, 93 (1996).
Mr. Martinez-Villareal's circumstances are clearly not outside the heartland where deportability and status as a deportable alien are by definition circumstances foreseen by the Sentencing Commission. Mr. Martinez-Villareal pled guilty to 8 U.S.C. § 1326, which prohibits reentry of a person legally deported on a prior occasion without permission of the Attorney General, When the crime for which a defendant was sentenced is re-entry of the United States after having been deported, status as a deportable alien may not be considered as a factor militating in favor of downward departure,U.S. v. Gonzales-Portillo. 121 F.3d 1122, 1124 (7th Cir. 1997);see also. U.S. v. Martinez-Ramos. 1999 WL 548289 (9th Cir. 1999) (holding alien status cannot be ground for downward departure because deportable alien status is an element of a § 1326 violation). It is on this point that Smith's holding is distinguishable. In that case, the sentence imposed was for drug-trafficking, not for illegal reentry, At least four circuit courts have distinguished Smith on that basis, U.S. v. Vasquez, 279 F.3d 77, 81 (1st Cir. 2002); U.S. v. Garay, 235 F.3d 230, 233 (5th Cir. 2000);Gonzales-Portillo, 121 F.3d at 1125; U.S. v. Ebolum 72 F.3d 35, 37 (6th Cir. 1995), Because Mr. Martinez-Villareal's "deportable" alien status is an inherent element of the crime to which the guideline applies, unquestionably foreseen by the Sentencing Commission, it cannot be a mitigating factor for downward departure purposes. His counsel was certainly not deficient in choosing not to raise this issue.
Conclusion
For the reasons stated above, Petitioner's motion to vacate is DENIED.