Opinion
Case No. 00-3143-DES, 99-40039-03-DES.
December 9, 1999
MEMORANDUM AND ORDER
This matter is before the court on defendant's Motion for Reduction of Sentence Pursuant to 28 U.S.C.A. § 2255 (Doc. 131). Both sides have submitted briefs on this motion and the court is prepared to rule.
I. FACTUAL BACKGROUND
On August 24, 1999, the defendant pled guilty to one count of conspiracy to distribute in excess of 100 kilograms of marijuana, for which he was sentenced to thirty-seven months in the custody of the Bureau of Prisons on November 29, 1999. As a result of the conviction, the defendant is subject to deportation to Mexico upon his release from prison. The defendant filed this motion seeking a reduction in his sentence based on the restrictions placed upon him by the Bureau of Prisons due to his deportation status. The defendant claims that his attorney was ineffective for failing to seek a downward departure and that the disparate treatment of alien and American inmates constitutes a violation of equal protection under the Fifth Amendment of the United States Constitution.
II. ANALYSIS
A. Equal Protection
As a result of the defendant's deportation status, he claims he is not eligible to participate in the Bureau of Prisons drug treatment program, be assigned to a minimum security prison, and is not eligible for "prerelease custody." Were the defendant allowed to participate in the drug treatment program, he may be eligible for up to a one year reduction in his sentence. Without much additional elaboration, the defendant contends that the disparate treatment violates his equal protection rights.
The defendant's equal protection claim involves a two-step analysis. First, he must show members of a certain group are being treated differently from other persons based on membership in that group. See Jones v. Helms, 452 U.S. 412, 423-24 (1981). Second, if it is demonstrated that a cognizable class is treated differently, the court must analyze, under the appropriate level of scrutiny, whether the distinction made between the groups is justified. Plyler v. Doe, 457 U.S. 202, 217-18 (1982). Federal laws that classify on the basis of alienage receive "the lowest level of judicial review." See United States v. Lopez-Flores, 63 F.3d 1468, 1476 (1995). "Only classifications that arbitrarily subject all resident aliens to different substantive rules from those applied to citizens will fail to survive scrutiny." Id.
The Bureau of Prisons' policies concerning aliens who are subject to deportation upon release is rationally related to a legitimate concern about safety. Clearly, inmates who are facing the possibility of deportation are more likely to flee than prisoners who are attempting to rejoin American society. The court finds that the Bureau of Prisons' policies are not arbitrary and, consequently, do not violate the defendant's equal protection rights. Therefore, the defendant's request for relief on this issue is denied.
B. Ineffective Assistance of Counsel
The defendant next claims that his attorney was ineffective for failing to request a two-level reduction in his sentence based upon the different treatment he would receive in prison as a result of his deportable alien status. In support of this claim, the defendant cites United States v. Smith, 27 F.3d 649 (D.C. Cir. 1994). In Smith, the court held that harsher treatment in the Bureau of Prisons was a mitigating factor for the court to consider when determining a sentence. No court has held that the harsher treatment necessitates a departure or that the government is bound to recommend a departure in every case.
The Sixth Amendment guarantees criminal defendants the right of effective assistance of counsel. See generally Strickland v. Washington, 466 U.S. 668 (1984). To establish an ineffective assistance of counsel claim, the petitioner must show (1) "that counsel's performance was deficient," and (2) "that the deficient performance prejudiced [his] defense." Strickland, 466, U.S. at 687. In order to show "that counsel's performance was deficient," the petitioner must show that his attorney's conduct fell outside the wide range of competence demanded of an attorney in a criminal case. See United States v. Carr, 80 F.3d 413, 417 (10th Cir. 1996). In order to show "that the deficient performance prejudiced his defense," the petitioner must show that there is a "reasonable probability that, but for the alleged errors, the result of the proceedings would have been different." Strickland, 466 U.S. at 695.
The court finds that the petitioner cannot meet the second prong of the Strickland test. The petitioner cannot show that there is a "reasonable probability that, but for the alleged errors, the result of the proceedings would have been different." The government, in its response, clearly states that even had they been approached by the defendant's attorney about a reduction under Smith, the government would not have agreed to make the recommendation. The defendant was a central figure in the conspiracy to distribute the marijuana involved in this case. The two co-defendants each received sentences only seven months shorter than the defendant's sentence. The government claims that it would not have recommended lowering the defendant's sentence below the thirty-seven months which were imposed due to his involvement in the case and based upon the sentences his co-defendant's received. In addition, the government also notes that in cases where the government did recommend the departure, a condition was placed upon the defendant that he would stipulate to deportation. The defendant has never indicated a willingness to stipulate to deportation. Without a recommendation by the government, it is nearly certain that the court would not have granted the defendant a departure on this basis.
The court would also note that even if the government had recommended the reduction in sentence, it is highly unlikely that the court would have departed below the thirty-seven month sentence imposed in this case. The defendant was the central figure in a serious drug trafficking offense and the sentence imposed was appropriate. Therefore, the court would not have departed below the thirty-seven months even had the defendant's attorney made the request and the government agreed.
Because the defendant cannot show that his attorney's failure to request a downward departure based upon his harsher treatment by the Bureau of Prisons resulted in any harm or prejudiced him in any way, the motion for reduction of sentence on this claim will be denied as well.
III. CONCLUSION
The defendant has not shown that he is entitled to any relief from his sentence. The Bureau of Prisons' treatment of him based upon his alien status does not violate the equal protection clause of the Fifth Amendment. In addition, his attorney's failure to request a downward departure based on the Bureau of Prison's treatment of him would not have had any impact on his sentence and, therefore, does not constitute ineffective assistance of counsel under Strickland.
IT IS THEREFORE BY THIS COURT ORDERED that the defendant's Motion for Reduction of Sentence Pursuant to 28 U.S.C.A. § 2255 (Doc. 131) is denied.