Lizarraga-Lopez v. U.S.

• Citation: 89 F.Supp.2d 1166
• Decision Date: 10 February 2000
• Docket Number: No. 94CR0309-IEG.,No. 99CV2116-IEG.,99CV2116-IEG.,94CR0309-IEG.
• Parties: Fernando LIZARRAGA-LOPEZ, Movant, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Southern District of California

89 F.Supp.2d 1166

Fernando LIZARRAGA-LOPEZ, Movant, v. UNITED STATES of America, Respondent.

No. 99CV2116-IEG.

No. 94CR0309-IEG.

United States District Court, S.D. California.

February 10, 2000.

Fernando L. Lizarraga-Lopez, Taft, CA, pro se.

U.S. Attorney CV, U.S. Attorney's Office, Civil Div., San Diego, CA, for U.S.

ORDER (1) DENYING MOTION TO MODIFY SENTENCE AND/OR EARLY DEPORTATION; AND (2) DENYING CERTIFICATE OF APPEALABILITY [Doc. No. 174]

GONZALEZ, District Judge.

Movant Fernando Lizarraga-Lopez ("Lizarraga-Lopez"), a prisoner in federal custody proceeding pro se, brings this motion to modify his sentence in order to be deported five months prior to the expiration of his sentence, pursuant to the pre-release custody provisions of 18 U.S.C. § 3624(c). Upon receipt of Lizarraga-Lopez's motion, the Court finds that the matter is appropriate for summary disposition and thereby denies the motion without further briefing.

BACKGROUND

On September 29, 1999, Lizarraga-Lopez filed a motion to modify his sentence based on 18 U.S.C. § 3624(c), which provides in pertinent part:

The Bureau of Prisons shall, to the extent practicable, assure that a prisoner serving a term of imprisonment spends a reasonable part, not to exceed six months, of the last 10 per centum of the term to be served under conditions that will afford the prisoner a reasonable opportunity to adjust to and prepare for the prisoner's re-entry into the community.

18 U.S.C. § 3624(c). Lizarraga-Lopez argues that if his "status was one of resident alien or U.S. citizen, [he] almost likely would be placed in community confinement (halfway house) upon completion of 90% of [his] sentence." (Def.'s Mot. at 1, ¶ 1.) Conceding that he is a deportable alien, Lizarraga-Lopez asks that the Court construe the eligibility of non-aliens to a five-month early release into community confinement as an eligibility of deportable aliens such as himself to a five-month early deportation. Lizarraga-Lopez argues that the general authority of the sentencing courts to make a downward departure under the Federal Sentencing Guidelines in order to adjust for "aggravating and mitigating circumstances" allows the Court to recommend his early deportation in this instance. Should the Court not deem him eligible for early release under 18 U.S.C. § 3624(c), then his sentence will be "much harsher than if [he] were an American Citizen or legal resident alien." (Def.'s Mot. at 2, ¶ C.) Lizarraga-Lopez cites United States v. Smith, 27 F.3d 649 (D.C.Cir.1994) in support of his request for relief. (Def.'s Mot. at 5.)

DISCUSSION

A. Character of Motion

Lizarraga-Lopez characterizes the instant filing as a "motion under 18 U.S.C. § 3582(c)(2) and Sentencing Guideline § 1B1.10 for reduction of sentence based on Guideline Amendment 371." (Def.'s Mot. at 3.) Both 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10(a) allow a defendant to challenge his sentence when the sentencing range upon which that sentence was based has subsequently been lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10(a). Amendment 371 provides additional guidelines for violations involving listed chemicals, flasks, and certain machines used to manufacture controlled substances. U.S.S.G. app. C, amend. 371 (1991). Lizarraga-Lopez was convicted of conspiracy to distribute cocaine under 21 U.S.C. §§ 841(a)(1) and 846, which are not affected by Amendment 371. More directly, Lizarraga-Lopez was sentenced by this Court on November 3, 1994, well after Amendment 371 went into effect. Thus there is no legal basis for this Court's reconsideration of his sentence under 18 U.S.C. § 3582(c)(2) or U.S.S.G. § 1B1.10(a).

In light of Lizarraga-Lopez's status as pro se litigant, the Court will further consider whether his instant motion might appropriately be brought under 28 U.S.C. § 2255.¹ A motion pursuant to 28 U.S.C. § 2255 provides for a challenge to a conviction or sentence on the ground that the district court was without jurisdiction or that its judgment violated the United States Constitution or the laws of the United States. 28 U.S.C. § 2255; Tripati v. Henman, 843 F.2d 1160, 1163 (9th Cir. 1988). Here, Lizarraga-Lopez seeks a downward departure, which is within the sentencing court's discretion but which does not implicate constitutional or jurisdictional issues with regard to his conviction or sentence. Such a failure to raise a constitutional or jurisdictional objection to his conviction or sentence renders Lizarraga-Lopez's instant motion under section 2255 deficient on its face. Agostino v. United States, No. 97 CIV. 1485(RJW), 1997 WL 220330, at *2 (S.D.N.Y. April 25, 1997) (finding that the relief sought by petitioner was unavailable under section 2255 because his motion raised "no more than a Guidelines claim which was not raised at the time of sentencing" and that he improperly relied on section 2255 to obtain a reduction in his sentence based on 18 U.S.C. § 3624(c) and his status as a deportable alien). To the extent that Lizarraga-Lopez challenges the propriety of his sentence based on the allegedly selective application of 18 U.S.C. § 3624(c), however, and not the execution of his sentence by the Bureau of Prisons, the Court liberally construes Lizarraga-Lopez's motion as stating a colorable claim under section 2255. United States v. Giddings, 740 F.2d 770, 772 (9th Cir.1984) (challenge to propriety of sentence must be brought under § 2255, while complaints about the manner of its execution are heard pursuant to § 2241); Doganiere v. United States, 914 F.2d 165, 169-70 (9th Cir.1990) (same).

B. Downward Departure Based on 18 U.S.C. § 3624(c)

Having interpreted Lizarraga-Lopez's motion as a challenge to the legality of his sentence, the Court now turns to the merits of the motion.² Under 18 U.S.C. § 3553(b), the sentencing court has the authority to make downward departures if "the court finds that an aggravating or mitigating circumstance exists that was not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." 18 U.S.C. § 3553(b); see also Koon v. United States, 518 U.S. 81, 92-94, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) (citing § 3553(b) as permitting departure from the designated sentencing range for those circumstances falling outside the "heartland" of typical cases). The Ninth Circuit has interpreted the Koon "heartland" mandate as disallowing the sentencing court from categorically denying any grounds for departure that are not expressly excluded from consideration by the Sentencing Commission. United States v. Sanchez-Rodriguez, 161 F.3d 556, 560 (9th Cir.1998) (en banc). Instead, whether an unmentioned factor provides a basis for downward departure requires a case-by-case determination. United States v. Rodriguez-Lopez, 198 F.3d 773, 776 (9th Cir.1999). Even so, "the court must bear in mind the Commission's expectation that departures based on grounds not mentioned in the Guidelines will be `highly infrequent'" Koon, 518 U.S. at 96, 116 S.Ct. 2035 (citing U.S.S.G. ch. 1, pt. A, at 6 (1995)).

The Ninth Circuit has observed that the Guidelines do not specifically mention "increased sentence severity resulting from deportable alien status" as a factor to be considered in sentencing. United States v. Charry Cubillos, 91 F.3d 1342, 1343 (9th Cir.1996). Thus, in determining whether a defendant's status as a deportable alien takes the case outside of the "heartland" of 18 U.S.C. § 3624(c), the Ninth Circuit requires a case-specific analysis of pertinent factors such as how the defendant's ineligibility for community confinement comports with the "structure and theory" of the Sentencing Guidelines. Charry Cubillos, 91 F.3d at 1344. Additionally, as Lizarraga-Lopez points out, the D.C. Circuit has held that while a defendant's status as a deportable alien "renders him almost certainly ineligible for the benefits of 18 U.S.C. § 3624(c)," this status may be an offender characteristic encompassed as a "mitigating circumstance" within the meaning of 18 U.S.C. § 3553(b). United States v. Smith, 27 F.3d 649, 651 (D.C.Cir. 1994). The D.C. Circuit in Smith went on to remand the case to the district court after concluding 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...." Id. at 655.

Applying these standards to the instant facts, this Court must look at Lizarraga-Lopez's particular circumstances to determine whether or not his case falls within the same ambit as prisoners who are not deportable aliens, yet who are eligible for home or community confinement under 18 U.S.C. § 3624(c). As a preliminary matter, the Court notes that the statute does not guarantee placement into community confinement for any federal prisoner regardless of citizenship status; rather, such placement is required only "to the extent practicable." 18 U.S.C. § 3624(c). Moreover, the Bureau of Prisons has been granted vast discretion by statute to determine the appropriate conditions under which a prisoner shall serve his or her sentence. 18 U.S.C. § 3621(b). Thus, it is unclear whether Lizarraga-Lopez has any "right" deserving protection by way of the instant 2255 motion. The Court recognizes the alternate possibility that Lizarraga-Lopez intends to make an Equal Protection argument, based on the greater likelihood that a non-citizen will be denied the opportunity to participate in a home or community confinement program. Even were the Court to read such a claim into Lizarraga-Lopez's motion, the Court would conclude that legitimate policy interests and Congress's plenary power over alien affairs provide sufficient reason to uphold this differential treatment. Palafox-Barajas v. United States, Nos. 99-0927-R, 98-1887-R, 1999 WL 1338451, at *4 (S.D.Cal., Dec.8, 1999). Furthermore, to allow Lizarraga-Lopez a five-month early release and...