Chihuahua-Martinez v. USA

Filing 2

ORDER Denying Petition to Vacate under 28 USC 2255 and Denying Certificate of Appealability. Signed by Judge Barry Ted Moskowitz on 715/2013.(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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JESUS CHIHUAHUA-MARTINEZ,
v.

Civ. Case No. 13cv418 BTM
Crim. Case No. 12cr2358 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 Jesus Chihuahua-Martinez 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 June 28, 2012, pursuant to a Plea Agreement, Defendant pled guilty to

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violating 8 U.S.C. § 1326 by attempting to enter the United States without the

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permission of the Attorney General or his designated successor after being deported

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and removed from the United States to Mexico. In an order dated November 19, 2012,

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the Court accepted Defendant’s guilty plea.

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Pursuant to the Plea Agreement, the parties agreed to a base offense level of 8,

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an adjustment level of 2 or 3 for acceptance of responsibility, and a 4-point departure
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for fast-track. (Plea Agreement § X, ECF No. 14.) As part of his consideration for the

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fast-track departure agreement, Defendant agreed to an order of removal from the

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United States. (Plea Agreement § X, ¶ H.) The parties did not agree on offense

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characteristics or a criminal history category. (Plea Agreement § X, n.1.)

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II. DISCUSSION

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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: (1) the sentence was in violation of the laws or

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Constitution of the United States; (2) the court was without jurisdiction to impose such

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a sentence; or (3) the sentence was in excess of the maximum authorized by the

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applicable law. 28 U.S.C. § 2255(a).

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Defendant contends that the Court should grant a downward departure because

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his deportable alien status prohibits him from residing in a minimum security facility.

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Furthermore, Defendant asserts ineffective assistance of counsel in that Defendant’s

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counsel both failed to argue for a reduction for cultural assimilation and failed to seek

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a departure for agreeing to a final order of deportation. The Court addresses each of

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Defendant’s arguments in turn.

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A. Alien Status

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The Plea Agreement states that Defendant, after discussion with his counsel

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regarding the facts and circumstances of the case, “has a clear understanding of the

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charges and the consequences of his plea.” (Plea Agreement § VI, ¶ A.) Furthermore,

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the Plea Agreement provides that “defendant waives, to the full extent of the law, any

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right to appeal or to collaterally attack the conviction and sentence, except a post-

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conviction collateral attack based on a claim of ineffective assistance of counsel, unless

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the court imposes a custodial sentence above the high end of the guideline range

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

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sentencing.” (Plea Agreement § XI). The Government recommended a sentencing
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range of 37-46 months, which was consistent with the Plea Agreement. The Court

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imposed a 37-month sentence.

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During the sentencing hearing, the Court confirmed that Defendant was

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voluntarily waiving his right to appeal or collaterally attack his sentence. (See Minute

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Entry, ECF No. 26.) “[A]n express waiver of the right to appeal in a negotiated plea

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of guilty is valid if knowingly and voluntarily made.” United States v. Bolinger, 940

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F.2d 478, 480 (9th Cir. 1991) (citing United States v. Navarro-Botello, 912 F.3d 318,

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320 (9th Cir. 1990)). Thus, except for a claim of ineffective assistance of counsel,

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Defendant has waived his right to appeal.

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Defendant’s first argument does not raise a claim of ineffective assistance of

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counsel. Instead, Defendant contends that his Equal Protection and Due Process rights

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are violated given his deportable alien status. Not only is Defendant barred by the Plea

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Agreement from bringing this claim, but the Court considered this issue during the

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sentencing hearing, ultimately declining to depart and finding no constitutional

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violations. (See Minute Entry, ECF No. 26.) Furthermore, this argument has been

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repeatedly rejected by this Court. See e.g., United States v. Rodriguez-Tovar, 2013

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WL 101078 (S.D. Cal. Jan. 7, 2013); Cabanillas-Garcia v. United States, 2012 WL

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5928154 (S.D. Cal. Nov. 26, 2012).

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B. Ineffective Assistance of Counsel: Cultural Assimilation

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Defendant next argues that, as a result of ineffective assistance of counsel, he

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was not considered for a 2-point sentence reduction for cultural assimilation. Unlike

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the previous argument, Defendant is not barred from making a claim on the grounds

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of ineffective assistance of counsel. The Court, however, has already considered this

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issue.

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On September 7, 2012, Defendant filed a departure motion which requested,

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inter alia, consideration of a combination of factors under 18 U.S.C. § 3553 for

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downward departure. Defendant’s ineffective assistance of counsel claim lacks merit
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because Defendant included an argument for cultural assimilation as one of the factors

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warranting downward departure. (See Sentencing Memorandum and Departures

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Motion, ECF No. 17, p. 6-7.) Thus, at sentencing, Defendant’s counsel actually argued

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for what Defendant now claims he failed to do as his basis for ineffective assistance of

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counsel. There was no failure to raise this issue.

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C. Ineffective Assistance of Counsel: Final Deportation Order

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Finally, Defendant argues ineffective assistance of counsel for failing to argue

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for a reduction upon acceptance of a final deportation order. As discussed above,

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although Defendant is not barred by the Plea Agreement from arguing issues arising

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from ineffective assistance of counsel, Defendant knowingly and voluntarily accepted

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the Plea Agreement’s provision that states: “[D]efendant agrees to an order of removal

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from the United States entered by Executive Office of Immigration Review or

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authorized Department of Homeland Security official. Defendant understands that [he]

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will not be removed until [he] has served any criminal sentence imposed in this or any

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other case. Defendant further waives any right to appeal, reopen, or challenge the

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removal order, in this or any subsequent case . . . .” (Plea Agreement § X, ¶ H.)

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Defendant received a 4-point departure in part for agreeing to removal. He is not

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entitled to any further reduction. Defense counsel obtained the benefit of a 4 level

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downward departure in return for the Defendant agreeing to deportation. Thus, defense

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counsel was not deficient in any respect.

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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, a certificate of appealability is

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DENIED. 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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BARRY TED MOSKOWITZ, Chief Judge
United States District Court

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