Arroyo Pacheco v. USA

Filing 2

ORDER Denying Petition to Vacate under 28 USC 2255. Signed by Judge William Q. Hayes on 10/28/2011. (All non-registered users served via U.S. Mail Service.) (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

CASE NO. 11CR1867WQH
CASE NO. 11CV2464WQH
Plaintiff,

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vs.
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ORDER

JONATHAN ARROYO PACHECO,

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Defendant.

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HAYES, Judge:

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The matter before the Court is the Motion for time reduction by an inmate in federal

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custody under 28 U.S.C. § 2255. ECF No. 27. Defendant moves the court to modify his

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sentence on the grounds that he is not able to reduce his sentence through a drug program

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because of his deportation status. The Court finds that the issues raised in the petition are

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appropriate for summary disposition.

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APPLICABLE LAW

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28 U.S.C. §2255 provides that “A prisoner under sentence of a court established by Act

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of Congress claiming the right to be released upon the ground that the sentence was imposed

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in violation of the Constitution or laws of the United States, or that the court was without

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jurisdiction to impose such sentence, or that the sentence was in excess of the maximum

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authorized by law, or is otherwise subject to collateral attack, may move the court which

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imposed the sentence to vacate, set aside or correct the sentence.” A district court must
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summarily dismiss a § 2255 application “[i]f it plainly appears from the motion, any attached

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exhibits, and the record of prior proceedings that the moving party is not entitled to relief.”

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Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District courts.

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When this standard is satisfied, neither a hearing nor a response from the government is

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required. See Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985).

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RULING OF THE COURT

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In this case, the record conclusively shows that the Defendant has waived his right to

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bring a § 2255 motion. In the plea agreement, the Defendant waived “to the full extent of the

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law, any right to appeal or to collaterally attack the guilty plea, conviction and sentence ...

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unless the Court imposes a custodial sentence above the greater of the high end of the guideline

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range recommended by the Government pursuant to this agreement at the time of sentencing

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or statutory minimum term, if applicable.” ECF No. 48 at 10-11. This waiver is clear, express

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and unequivocal. Plea agreements are contractual in nature, and their plain language will

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generally be enforced if the agreement is clear and unambiguous on its face. United States v.

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Jeronimo, 298 F.3d 1149, 1153 (9th Cir. 2005).

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In this case, the plea agreement provided for an adjusted offense level of 25 and a

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guideline range of 57-71 months. ECF No. 14 at 7. At the time of sentencing, the Government

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recommended an adjusted offense level of 22 and a guideline range of 41-51 months and

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recommended a sentence of 41 months. ECF No. 24. The Court imposed a sentence of 31

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months. ECF No. 26 at 2. Pursuant to the terms of the plea agreement, the Defendant waived

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his right to collaterally attack the sentence imposed.

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Finally, the Defendant presents no grounds for relief under Section 2255. The

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Sentencing Reform Act gives the Bureau of Prisons the responsibility to “designate the place

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of the prisoner’s imprisonment.” 18 U.S.C. § 3621(b). See United States v. Cubillos, 91 F.3d

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1342, 1344-45 (9th Cir. 1996). The Court of Appeals for the Ninth Circuit has rejected the

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assertion that an alien’s equal protection rights are violated when he cannot be housed in a

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minimum security facility or a community correction center based upon his deportation status.

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See McClean v. Crabtree, 173 F.3d 1176, 1185-86 (9th Cir. 1999).
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IT IS HEREBY ORDERED that the Motion for time reduction by an inmate in federal

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custody under 28 U.S.C. § 2255 (ECF No. 27) filed by the Defendant is denied.

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DATED: October 28, 2011

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WILLIAM Q. HAYES
United States District Judge

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