Lopez-Gerarda v. USA

Filing 2

ORDER Denying Petition to Vacate under 28 USC 2255. The Court Denies a certificate of appealability. Signed by Judge Barry Ted Moskowitz on 7/15/2013.(All non-registered users served via U.S. Mail Service)(rlu)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GERARDO LOPEZ-GERARDA,
v.

Civ. Case No. 13cv400 BTM
Crim. Case No. 11cr4360 BTM

Movant-Defendant,

ORDER DENYING
DEFENDANT’S § 2255
MOTION FOR SENTENCE
REDUCTION AND DENYING
CERTIFICATE OF
APPEALABILITY

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UNITED STATES OF AMERICA,
Respondent-Plaintiff.

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Defendant Gerardo Lopez-Gerarda has filed a motion to reduce his sentence

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under 28 U.S.C. § 2255. For the reasons discussed below, the Court DENIES

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Defendant’s motion for sentence reduction and DENIES a certificate of appealability.

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I. BACKGROUND

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On October 18, 2011, pursuant to a Plea Agreement, Defendant pled guilty to

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violating 8 U.S.C. § 1326 for being a deported alien found in the United States without

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approval after previously having been deported and removed from the United States

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to Mexico. In an order dated December 5, 2011, the Court accepted Defendant’s guilty

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plea. Thereafter, on June 8, 2012, Defendant was sentenced to a 46-month term of

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imprisonment and 3 years of supervised release. Judgment was entered against

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Defendant on June 12, 2012.
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II. DISCUSSION

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Defendant makes the following arguments in his motion for sentence reduction:

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(1) the United States Attorney General can offer up to a two-point downward departure

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if the Defendant accepts a final deportation order; and (2) the court should grant a

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downward departure because his deportable alien status prohibits him from residing in

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a minimum security facility. As discussed below, Defendant has waived his right to

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appeal and/or collaterally attack his conviction, and thus his motion is DENIED.

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A. Waiver of Appeal

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A prisoner sentenced by the court may move to have his or her sentence vacated

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or corrected on the grounds that the sentence was in violation of the laws or

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Constitution of the United States. 28 U.S.C. § 2255(a). However, a waiver of a

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statutory right is enforceable if it is made both knowingly and voluntarily. United

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States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993).

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The Plea Agreement states that Defendant, with the advice and consent of his

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counsel, “has a clear understanding of the charges and the consequences of his plea.”

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(Plea Agreement § VI, ECF No. 14.) Furthermore, the Plea Agreement provides that

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“defendant waives, to the full extent of the law, any right to appeal or to collaterally

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attack the conviction and sentence, except a post-conviction collateral attack based on

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a claim of ineffective assistance of counsel, unless the court imposes a custodial

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sentence above the high end of the guideline range recommended by the Government

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pursuant to this agreement at the time of sentencing.” (Plea Agreement § XI)

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(emphasis added).

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As stipulated in the Plea Agreement, Defendant is barred from arguing for a

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reduction in his sentence. Defendant, with the advice and consent of his attorney,

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voluntarily consented to the discretion of the sentencing judge. (Plea Agreement § IX.)

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In the Plea Agreement, the parties agreed on a base offense level of 8, an adjustment

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of either 2 or 3 points for acceptance of responsibility, and a 4-point departure for fast2

13cv400 BTM

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track. (Plea Agreement § X, ¶ A.) The parties agreed that the applicability of any

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Specific Offense Characteristics would be argued at the sentencing hearing. (Plea

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Agreement § X, ¶ A, n.4.)

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At the sentencing hearing, the Court followed the Government’s

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recommendation of an additional 16-point increase pursuant to Specific Offense

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Characteristics, specifically previous deportation after a felony conviction for

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possession of a controlled substance for sale, resulting in an adjusted offense level of

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24. (See Sentencing Summary Chart, ECF No. 25.) After applying the 3-point

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adjustment for acceptance of responsibility and 4-point departure for fast-track, and

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given a criminal history category of V, the Government recommended a sentence of 46

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months imprisonment– the low end of the guideline range of 46-57 months. (Id.) On

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June 8, 2012, Defendant was sentenced to 46 months imprisonment and 3 years of

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supervised release. (ECF No. 28.)

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Defendant does not argue that his attorney was ineffective. Rather, Defendant

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seeks relief on the grounds that he should get a further reduction for agreeing to

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deportation and that his Equal Protection and Due Process rights are being violated.

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During the sentencing hearing, the Court confirmed that Defendant was waiving his

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right to appeal or collaterally attack his sentence. (See Docket Entry No. 27.) “[A]n

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express waiver of the right to appeal in a negotiated plea of guilty is valid if knowingly

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and voluntarily made.” United States v. Bolinger, 940 F.2d 478, 480 (9th Cir. 1991)

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(citing United States v. Navarro-Botello, 912 F.3d 318, 320 (9th Cir. 1990)). Because

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the Defendant is not challenging his sentence on the grounds of ineffective assistance

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of counsel, and because the Court sentenced Defendant pursuant to the low end of the

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guideline range recommended by the Government pursuant to the Plea Agreement,

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Defendant is barred by the Plea Agreement from making a section 2255 motion to

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vacate or correct his sentence.

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//

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//
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13cv400 BTM

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B. Merits of Claims

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Assuming Defendant was not barred from bringing his motion for sentence

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reduction, Defendant’s claims lack merit. Defendant first argues that the Attorney

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General can offer a 2-point departure should he accept a final deportation order.

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However, as part of his consideration for the fast-track departure agreement, Defendant

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agreed to an order of removal from the United States. (Plea Agreement § X, ¶ H.) He

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has already received a reduction for stipulating to removal, and is entitled to nothing

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more.

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Defendant next contends that his Constitutional rights have been violated

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because his deportable alien status makes him ineligible to qualify for a one-year

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sentence reduction through a drug treatment program in a minimum security facility.

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This argument has been repeatedly rejected by this Court. See e.g., United States v.

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Rodriguez-Tovar, 2013 WL 101078 (S.D. Cal. Jan. 7, 2013); Cabanillas-Garcia v.

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United States, 2012 WL 5928154 (S.D. Cal. Nov. 26, 2012). See also McLean v.

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Crabtree, 173 F.3d 1176 (9th Cir. 1999) (noting that the practice of excluding prisoners

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with Immigration and Naturalization detainers from community-based treatment

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programs was not a violation of their constitutional rights). Therefore, had Defendant’s

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motion been allowed by the Plea Agreement, it would be denied because the claims

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lack merit.

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III. CONCLUSION

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For the reasons discussed above, Defendant’s motion for sentence reduction

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pursuant to 28 U.S.C. § 2255 is DENIED. Further, the Court DENIES a certificate of

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appealability. The Clerk shall enter judgment accordingly.

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IT IS SO ORDERED.

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Dated: July 15, 2013

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HONORABLE BARRY TED MOSKOWITZ
United States District Judge
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13cv400 BTM