Chavez-Garcia v. USA
Filing
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ORDER Denying Petition to Vacate under 28 USC 2255. Signed by Judge William Q. Hayes on 1/29/2013. (mdc) Modified on 1/30/2013 - Copy of Order dktd in 12cr11 already mailed to Defendant-Petitioner. (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. 12CR11WQH
CASE NO. 13CV187WQH
Plaintiff,
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vs.
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ORDER
ANTONIO CHAVEZ-GARCIA,
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Defendant.
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HAYES, Judge:
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The matter before the Court is the Motion pursuant to § 2255. (ECF No. 47).
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Defendant moves the court to vacate his conviction and remand to the district court for trial
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on the following grounds: 1) the district court misapplied the guidelines when it imposed a
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sixteen level enhancement; 2) the sentence imposed of 33 months is unreasonable punishment
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for illegal reentry; and 3) the petitioner should receive a two level reduction for fast track.
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The Court finds that the issues raised in the petition are 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).
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 conviction and sentence, ... unless the
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Court imposes a custodial sentence above the greater of the high end of the guideline range
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recommended by the Government pursuant to this agreement at the time of sentencing....”
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(ECF No. 34 at 10). This waiver is clear, express and unequivocal. Plea agreements are
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contractual in nature, and their plain language will generally be enforced if the agreement is
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clear and unambiguous on its face. United States v. Jeronimo, 298 F.3d 1149, 1153 (9th Cir.
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2005).
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In this case, the Government recommended an adjusted offense level of 19 pursuant to
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the plea agreement and a resulting guideline range of 37-46 months. At the time of sentencing,
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the Government recommended a sentence of 37 months. (ECF No. 39). The Court imposed
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a sentence of 27 months. (ECF No. 46 at 2). Pursuant to the terms of the plea agreement, the
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Defendant waived his right to collaterally attack the sentence imposed.
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Finally, the Defendant presents no grounds for relief under Section 2255. Defendant
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has presented no colorable argument in support of his contention that his sixteen-level
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enhancement was not appropriate under the advisory guidelines. Defendant received a two-
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level downward departure for fast track and a sentence which was ten months below the low
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end of the guidelines. It plainly appears from the motion and the record of prior proceedings
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that the Petitioner is not entitled to relief.
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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. 47) filed by the Defendant is denied.
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DATED: January 29, 2013
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WILLIAM Q. HAYES
United States District Judge
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