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U.S. v. Osuna-Samaniego

United States District Court, E.D. Washington
Nov 13, 2007
NO. CR-04-167-RHW, CV-07-143-RHW (E.D. Wash. Nov. 13, 2007)

Opinion

NO. CR-04-167-RHW, CV-07-143-RHW.

November 13, 2007


ORDER DISMISSING DEFENDANT'S MOTION UNDER 28 U.S.C. § 2255 PURSUANT TO RULE 4


Before the Court is Defendant Maximino Osuna-Samaniego's Motion for Time Reduction by an Inmate in Federal Custody Under 28 U.S.C. § 2255 (Ct. Rec. 86). Defendant currently is incarcerated at the California City Correctional Center. Defendant pleaded guilty to Possession with Intent to Distribute 50 Grams or More of Actual Methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A), (Ct. Rec. 56), and was sentenced by this Court to 70 months' incarceration, 3 years supervised release, and a $100 special penalty assessment (Ct. Rec. 64). Judgment was entered on January 23, 2006. Id. Defendant filed an appeal on January 20, 2006, and the Ninth Circuit affirmed this Court's judgment on December 27, 2006 (Ct. Rec. 84). Defendant's motion to vacate, set aside, or correct sentence was filed on May 4, 2007 (Ct. Rec. 86).

Pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts ("Rule 4"), the Court must independently examine a Section 2255 motion to determine whether summary dismissal is warranted. Dismissal is appropriate if the movant's "allegations, viewed against the record, either fail to state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal." Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985); see also United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003). Viewing the record under this standard, the Court finds it appropriate to dismiss the Defendant's motion.

Defendant asserts that his sentence should have been reduced under U.S.S.G. § 5.K2.0 because he accepted a final deportation order. He also argues that he should receive a reduction in his offense level because, as an illegal alien, he is not eligible for certain community confinement programs and cannot be housed in a minimum security facility. See 18 U.S.C. § 3625(c). At sentencing, the Defendant asked for a reduced sentence based on § 3553(a) factors such as his low criminal history, his limited education, and his efforts to find work upon his arrival in the United States.

Defendant alternately casts his sentencing error claim as an equal protection or due process violation. This claim may be construed as a federal prisoner's challenge to the execution of his sentence. See 28 U.S.C. § 2241. These constitutional claims, however, fail on the merits. The Ninth Circuit has held that the Bureau of Prisons' determination that prisoners with immigration detainers are not eligible for the community confinement benefits outlined in 18 U.S.C. § 3625(c) is not a violation of due process or equal protection. See McLean v. Crabtree, 173 F.3d 1176, 1184-86 (9th Cir. 1999) (holding that the Bureau of Prisons' exclusion of prisoners with immigration detainers from eligibility for sentence reduction or community confinement does not violate equal protection or due process), cert. denied, 528 U.S. 1086 (2000).

These claims must fail because the Defendant failed to raise them at sentencing or through direct appeal. Nonconstitutional sentencing errors not raised on direct criminal appeal are deemed waived for purposes of a section 2255 proceeding. See United States v. Schlesinger, 49 F.3d 483, 484-85 (9th Cir. 1995).

Accordingly, IT IS HEREBY ORDERED that pursuant to Rule 4, the Defendant's Motion for Time Reduction by an Inmate in Federal Custody Under 28 U.S.C. § 2255 (Ct. Rec. 86) is DENIED. IT IS SO ORDERED. The District Court Executive is directed to enter this Order, forward copies to counsel and the pro se Defendant, and close the file.


Summaries of

U.S. v. Osuna-Samaniego

United States District Court, E.D. Washington
Nov 13, 2007
NO. CR-04-167-RHW, CV-07-143-RHW (E.D. Wash. Nov. 13, 2007)
Case details for

U.S. v. Osuna-Samaniego

Case Details

Full title:UNITED STATES OF AMERICA Plaintiff, v. MAXIMINO OSUNA-SAMANIEGO, Defendant

Court:United States District Court, E.D. Washington

Date published: Nov 13, 2007

Citations

NO. CR-04-167-RHW, CV-07-143-RHW (E.D. Wash. Nov. 13, 2007)