to deportation." (Anders Decl. Exh. B)
The purpose of the IAD is to assure prompt disposition of
charges against prisoners already detained on other charges.
Article I of the IAD identifies as the compact's focus detainers
"based on untried indictments, informations or complaints."
18 U.S.C.App. § 2. As the Supreme Court has noted, "The central
provisions of the [IAD] are Art. III and Art. IV. Article III
provides a procedure by which a prisoner against whom a detainer
has been filed can demand a speedy disposition of the charges
giving rise to the detainer." United States v. Mauro,
436 U.S. 340, 351, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978). Article III(a)
provides that when there is pending "any indictment, information
or complaint on the basis of which a detainer has been lodged
against the prisoner," he may request from a court "a final
disposition to be made of the indictment, information or
complaint." 18 U.S.C.App. § 2. Article IV provides a means for
the jurisdiction that has lodged the detainer "to secure the
prisoner's presence for disposition of the outstanding charges,"
and requires that those charges be tried within 120 days of the
arrival of the prisoner in the receiving jurisdiction, unless a
reasonable continuance is granted. Mauro, 436 U.S. at 352, 98
S.Ct. 1834 (citing 18 U.S.C.App. § 2). Thus, the only detainer
covered by the IAD is one that relates to criminal charges.
However, the detainer here assumed to have been lodged against
Cabrera did not relate to criminal charges. Rather, as noted
above, it was simply a notification that the INS had undertaken
an investigation to determine whether Cabrera "may be subject to
deportation." (Anders Decl. Exh. B) Which is to say, the detainer
dealt with a potential civil action against Cabrera to deport
him, not an actual criminal charge of illegal reentry. Such a
detainer is not covered by the IAD. See United States v.
Gonzalez-Mendoza, 985 F.2d 1014, 1016 (9th Cir. 1993) (INS civil
detainer "does not fall within the terms of the IAD"). Because
the detainer in question was not one covered by the IAD, any
motion to dismiss based on a violation of the IAD would have been
denied as groundless. Counsel cannot be taxed for ineffectiveness
for having failed to make a futile motion to dismiss the
Further, the record reflects that Cabrera's attorney did move
for downward departure on a variety of grounds, including the
rigors of Cabrera's confinement at the Hudson County Jail. I
denied the application. (10/18/99 Tr. 3-4) That other defendants
in other cases may have been given downward departures based on
substandard conditions of confinement does not mean that Cabrera
was entitled to such a departure, or that his attorney was
ineffective for having failed to obtain it.
Finally, there was no double counting in the computation of
Cabrera's criminal history. Cabrera was convicted in state court
on May 22, 1991 of an attempted drug sale alleged to have
occurred on October 18, 1989 and for which he was arrested on
that date (PSR ¶¶ 28, 29); he was convicted in state court on
November 15, 1991 of an attempted robbery that occurred January
31, 1991 (PSR ¶¶ 30, 31) The U.S. Sentencing Guidelines specify
that although prior sentences in related cases are to be counted
as one sentence for criminal history purposes, "[p]rior sentences
in unrelated cases are to be counted separately." U.S.S.G. §
4A1.2(a)(2) (Nov. 1, 1998). Application Note 3 to that Guidelines
section states: "Prior sentences are not considered related if
they were for offenses that were separated by an intervening
arrest (i.e., the defendant is arrested for the first offense
prior to committing the second offense)." That is what happened
here. Cabrera's arrest on October 18, 1989 for an attempted drug
sale on that date occurred before he committed the second offense
— the attempted robbery on January 31, 1991. Although Cabrera
that his guilty plea to these two charges reflected "a deal to
cop-out (plead guilty) to both of these charges as one,"
(Petition, p. 7), that "deal," even if it existed, cannot trump
For the above reasons, Cabrera's application to set aside the
judgment of conviction is denied and the petition is dismissed.
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