Fernando Luviano v. United States

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA, CV 19-10596 DSF

Plaintiff, CR 13-574 DSF

v. Order DENYING Motion to Vacate, Set Aside, or Correct FERNANDO LUVIANO, Sentence and DENYING Defendant. Certificate of Appealability

Defendant Fernando Luviano has filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. The grounds for the motion are (1) that his counsel provided ineffective assistance when counsel failed to object to the criminal history information in the presentence report and (2) that Defendant’s sentence violated Defendant’s due process rights by applying a five point “serious bodily injury” enhancement. Counsel was not ineffective in failing to object to the presentence report. The presentence report mentions an assault arrest that Defendant argues was only a detention and not an official arrest. While the sentencing judge commented on the assault arrest, neither party focused on it in their sentencing papers and it did not affect Defendant’s criminal history category. There is no indication that the sentencing judge would have viewed…