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United States v. Hernandez

United States District Court, Ninth Circuit

October 25, 2013

United States of America, Plaintiff,
v.
Jose Benjamin Hernandez, Defendant/Movant.

ORDER

G. MURRAY SNOW, District Judge.

Movant Jose Benjamin Hernandez, who is confined in the Federal Correctional Institution in Forest City, Arkansas, has filed a pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. The Court will call for an answer to the § 2255 Motion.

I. Procedural History

Movant pled guilty, without a plea agreement, to two counts of Conspiracy to Distribute and Possess with Intent to Distribute 500 Grams or More of a Mixture or Substance Containing a Detectable Amount of Methamphetamine, in violation of 21 U.S.C. § 846(a)(1) and (b)(1)(A)(viii), and Distribution and Possession with Intent to Distribute 500 Grams or More of a Mixture or Substance Containing a Detectable Amount of Methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii) and 18 U.S.C. § 2. On October 21, 2010, the Court sentenced Movant to a 235-month term of imprisonment followed by 5 years on supervised release.

On October 29, 2010, Movant filed a Notice of Appeal. On May 16, 2012, the Ninth Circuit Court of Appeals issued a decision and mandate affirming Movant's conviction and sentence.

II. Section 2255 Motion

Movant raises three grounds for relief in the § 2255 Motion:

(1) Movant's counsel was ineffective in failing to inform Movant of a plea offer;
(2) Movant's counsel was ineffective in failing to recommend a downward departure for acceptance of responsibility; and
(3) Movant's sentence violates the Constitution because Movant's sentence was enhanced for possession of a firearm during a drug trafficking crime, but Movant was not in possession of a firearm.

The Court will require a response to the § 2255 Motion.

III. Motions

A. Motion for Court Documents

On August 12, 2013, Movant filed a Motion for Court ...


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