Free Response to Motion - District Court of Arizona - Arizona

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DANIEL G. KNAUSS United States Attorney District of Arizona GARY M. RESTAINO Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Arizona State Bar No. 017450 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, v. Juan Yanez-Hernandez, Defendant.
GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION FOR A SENTENCING ADJUSTMENT CR04-1229-PHX-NVW

Following the denial on October 31, 2006 of his motion pursuant to 28 U.S.C. § 2255 to reduce or vacate his sentence (dkt. # 47), defendant has filed a successive "Motion for Sentencing Adjustment" in the above-captioned criminal case. The motion claims a new basis for reduction of sentence, that is, defendant's ineligibility for the Residential Drug Abuse Program ("the Program") that affords eligible inmates the opportunity for a downward adjustment to the period of incarceration. This Court should deny the motion for the following reasons: first, the motion is, in substance if not in form, an impermissible successive habeas petition; second, the motion fails to state valid grounds to review a sentence under Title 18, United States Code or the Rules of Criminal Procedure; third, defendant has not established his substantive eligibility for the Program, that is, that he is a drug abuser; and fourth, the eligibility criteria for the Program do not discriminate against defendant as an illegal alien. Although defendant does not cite to 28 U.S.C. § 2255 as the basis for his motion, his motion is nonetheless in substance a habeas petition. The petition is barred because defendant has not

Case 2:04-cr-01229-NVW

Document 50

Filed 05/04/2007

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1 obtained permission from the Circuit Court to file a successive habeas petition, as required by 2 statute and Rule. 28 U.S.C. § 2255; Rule 9, Rules of Procedure for Section 2255 Proceedings. 3 A district court may only modify a sentence upon direct motion of a defendant in three

4 circumstances: pursuant to Fed. R. Crim. P. 35(a), for clear or other error if filed within seven 5 days of judgment; pursuant to Fed. R. Crim. P. 35(b), for substantial assistance, upon 6 government motion; and pursuant to 18 U.S.C. § 3582(c), if the U.S. Sentencing Commission 7 has lowered the advisory Guidelines for the offense of conviction since the imposition of the 8 original sentence. None of these circumstances applies here. The Court did not commit clear 9 or other error in sentencing (nor was the motion filed within seven days of judgment); defendant 10 did not provide substantial assistance (nor has the government made the motion to adjust the 11 sentence); and the Sentencing Guidelines have not lowered the range for illegal reentry offenses 12 since the date of the original judgment. Accordingly, the Court has no jurisdiction to hear a non13 habeas-related motion to adjust defendant's sentence. 14 To the extent the Court chooses to reach the merits, notwithstanding the procedural barriers,

15 defendant has not established his eligibility as a drug abuser for the Program. Furthermore, the 16 Ninth Circuit has upheld, as part of a constitutional challenge, the exclusion of illegal aliens with 17 immigration detainers from participation in the Program. E.g. McLean v. Crabtree, 173 F.3d 18 1176, 1186 (9th Cir. 1999) (denying defendant's equal protection challenge). 19 20 21 22 23 24 25 CERTIFICATE OF SERVICE Respectfully submitted this 4th day of May, 2007. PAUL K. CHARLTON United States Attorney District of Arizona s/ Gary M. Restaino GARY M. RESTAINO Assistant U.S. Attorney

26 I hereby certify that on this date, I sent a copy of this electronically-filed response to defendant at his custodial address: Juan Yanez-Hernandez, # 68806-198, NEOCC, 2240 Hubbard Road, 27 Youngstown, OH 44505. 28
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Case 2:04-cr-01229-NVW

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Filed 05/04/2007

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