Opinion
Case No. 2:02-CV-468TC
May 27, 2003
ORDER
Mr. Gavino Fernandez-Rodriguez plead guilty to illegal reentry after deportation, a violation of 8 U.S.C. § 1326. He was sentenced to a term of imprisonment of 46 months on May 10, 2001. He has filed a motion under 28 U.S.C. § 2255. Even after careful reading of his petition, it is not clear to the court the precise nature of his claims. It does appear, however, that he contends that his conviction was in violation of the Double Jeopardy Clause of the Fifth Amendment. Further, he seems to argue that his plea was not knowing and voluntary. Finally, he raises an issue centering on his family ties. None of his claims have merit.
Mr. Fernandez-Rodriguez has never been tried for the offense for which he was convicted, that is, being knowingly present in the United States on January 4, 2001. Therefore, the Double Jeopardy Clause was not violated. The records of the court reveal that Mr. Fernandez-Rodriguez knowingly and voluntarily entered his guilty plea, a fact which he certified in the Statement by Defendant in Advance of Plea of Guilty (Dkt. No. 14). Finally, his argument about family ties is disfavored under section 5H1.6 of the United States Sentencing Guidelines. There is nothing in the Presentence Investigation Report or any other materials in the court files that would indicate that Mr. Fernandez-Rodriguez's family ties were out of the heartland of cases coming before the court.
Accordingly, the Petition is DENIED and the case is DISMISSED.