Gonzalez-Garate v. USA

Filing 2

ORDER Dismissing With Prejudice Petition to Vacate under 28 USC 2255. Signed by Judge M. James Lorenz on 9/15/2011.(mtb)

1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
SOUTHERN DISTRICT OF CALIFORNIA
10
11 MANUEL DE JESUS GONZALEZGARATE,
12
Petitioner,
13
v.
14
UNITED STATES OF AMERICA,
15
16
17
18

Respondent.

)
)
)
)
)
)
)
)
)
)
)
)
)

Criminal No. 11-CR-997-L
Civil No.
11-CV-2102-L
ORDER DISMISSING WITH
PREJUDICE PETITIONER’S
MOTION FOR REDUCTION OF
SENTENCE UNDER 28 U.S.C. § 2255

On September 8, 2011, Petitioner Manuel De Jesus Gonzalez-Garate (“Petitioner”) filed a

19 Motion for Reduction of Sentence pursuant to 28 U.S.C. § 2255. Petitioner essentially requests
20 that this Court grant a downward departure of up to two points due to Petitioner’s immigration
21 removal status. The Court has reviewed the record in this case, which clearly establishes that on
22 May 5, 2011, Petitioner waived both his right to appeal and to collaterally attack his conviction
23 and sentence. (Plea Agreement ¶ 11.) Petitioner’s motion raises no challenge to the validity of
24 that waiver, therefore this Court lacks jurisdiction to consider any collateral challenge to his
25 conviction and sentence. See Washington v. Lampert, 422 F.3d 864, 869-70 (9th Cir. 2005)
26 (recognizing that if sentencing agreement’s waiver of the right to file a federal habeas petition
27 was valid, district court lacked jurisdiction to hear the case).
28 / / /

1

Accordingly, Petitioner’s Motion For Reduction of Sentence pursuant to 28 U.S.C. §

2 2255 is DISMISSED WITH PREJUDICE.
3

IT IS SO ORDERED.

4
5 DATED: September 15, 2011
6
M. James Lorenz
United States District Court Judge

7
8
9
COPIES TO:

10 PETITIONER
U.S. ATTORNEY’S OFFICE

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2