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United States v. De La Garza-Gonzalez

United States District Court, D. Arizona

November 22, 2016

United States of America, Plaintiff,
v.
Jorge Alberto De La Garza-Gonzalez, Defendant.

          ORDER

          Cindy K. Jorgenson District Judge.

         Pending before the Court is the Motion for (1) Appointment of Counsel Under (CJA) for the Purpose of: (2) Modification of Term of Imprisonment Pursuant to Retroactivity of the Amend[m]ent 782 of the U.S.S.G. (The Minus-2 Amendment) (Doc. 55) filed by Jorge Alberto De La Garza-Gonzalez (“De La Garza-Gonzalez”).

         Procedural Background

         On April 28, 2010, De La Garza-Gonzalez was indicted for Possession with Intent to Distribute Methamphetamine and Importation of Methamphetamine. On March 7, 2011, De La Garza-Gonzalez pleaded guilty to the Indictment.

         The pre-sentence report (“PSR”) calculated a sentencing range pursuant to the United States Sentencing Guidelines, including a base offense level of 38 based on the purity of methamphetame, a criminal history category I, a two-level reduction for safety valve, a two-level increase for the importation of methamphetamine, and a two-level reduction for acceptance of responsibility, for a total offense level of 36, resulting in a 188 to 235 month range of incarceration. The PSR recommended a 78 month term of incarceration.

         This matter proceeded to sentencing on September 22, 2011, before Visiting District Judge Timothy M. Burgess. The Court adopted the facts as set forth in the PSR. The Court rejected a minor role reduction, but in his discretion sentenced De La Garza-Gonzalez outside of the guideline range to a 78 month term of incarceration on each count, with the sentences to run concurrently.

         On October 13, 2016, De La Garza-Gonzalez filed his Motion for (1) Appointment of Counsel Under (CJA) for the Purpose of: (2) Modification of Term of Imprisonment Pursuant to Retroactivity of the Amend[m]ent 782 of the U.S.S.G. (The Minus-2 Amendment) (Doc. 55). On October 13, 2016, the Federal Public Defender filed a Notice Relating to Defendant's Pro Se Request for a Sentence Reduction Under 18 U.S.C. § 3582(c)(2) (Doc. 56).[1]

         A review of De La Garza-Gonzalez's status on the BOP inmate locator indicates De La Garza-Gonzalez was released from the custody of the federal Bureau of Prisons (“BOP”) on August 14, 2013. De La Garza-Gonzalez's Motion indicates he was “transferred to a Mexican jail under the Treaty Transfer between Mexico and the United States, specifically to the Federal Penitentiary Complex at Maria Madre Island in the State of Nayarit, Mexico.” Motion (Doc. 55), p. 2.

         Jurisdiction for Review of De La Garza-Gonzalez' Request

         USSG § 1B1.10(b)(2)(C) provides: “Prohibition - In no event may the reduced term of imprisonment be less than the term of imprisonment the defendant has already served.” However, the United States-Mexico Treaty provides:

The Transferring State shall have exclusive jurisdiction over any proceedings, regardless of their form, intended to challenge, modify or set aside sentences handed down by its courts. The Receiving State shall, upon being advised by the Transferring State of action affecting the sentence, take the appropriate action in accordance with such advice.

         United States-Mexico Prisoner Transfer Treaty Signed at Mexico Nov. 25, 1976;, T.I.A.S. No. 8718 (Nov. 30, 1977).

         However, it is not clear if De La Garza-Gonzalez remains in custody. His motion, Dated: July 4, 2015, states he has ten months of his sentence to serve based on good time credits. Motion (Doc. 55), p. 2. In other words, it is likely De La Garza-Gonzalez has already been released. Because De La Garza-Gonzalez is only contesting the length of his incarceration and not any term of supervised release, his claim is moot if he has been released. See United States v. Palomba, 182 F.3d 1121, 1123 (9th Cir. 1999) (citing USSC for principle that a defendant's possible increased sentence is not sufficient for standing); Telfer v. Waddington, 255 F.App'x 188 (9th Cir. 2007) (where petition challenged only a sentence and not the conviction, matter was moot). However, because the Court cannot confirm his status, the Court finds it has jurisdiction to review De La Garza-Gonzalez's request.

         Authority for ...


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