Martinez-Tomas v. USA

Filing 2

ORDER denying Petition to Vacate under 28 USC 2255. Signed by Judge Larry Alan Burns on 3/17/17.(All non-registered users served via U.S. Mail Service)(kas)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, 12 CASE NO. 15CR0108-LAB/ 16CV0526-LAB Plaintiff, vs. ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 [Doc. 22] 13 PEDRO MARTINEZ-TOMAS, 14 Defendant. 15 16 17 Pedro Martinez-Tomas (“Martinez”) has filed a motion to vacate his sentence under 18 28 U.S.C. § 2255. On November 1, 2016, the Court appointed Federal Defenders of 19 San Diego to represent Mr. Martinez, and offered Federal Defenders an opportunity to file 20 a supplemental brief in support of Mr. Martinez’s claims by November 15, 2016. Federal 21 Defenders did not file a supplemental brief. Also on November 1, the Court ordered the 22 Government to respond to Mr. Martinez’s motion. On November 17, 2016, Assistant U.S. 23 Attorney Susan Park filed a response opposing Martinez’s request for relief. 24 Ms. Park’s opposition brief points out that as part of his plea agreement Martinez 25 waived the right to appeal or to collaterally attack his conviction, provided he received no 26 more than 27 months in custody. He got the benefit of his bargain when the Court 27 sentenced him to 27 months. Martinez’s plea agreement and the transcript of his change 28 of plea establish that his waiver of the right to appeal and to collaterally attack his conviction -1- 15cr0108/16cv0526 1 was knowing, voluntary, and intelligent. So the Court finds that the waiver is enforceable, and 2 forecloses the relief that Martinez seeks. 3 Even were the Court to consider Martinez’s claim on the merits, his motion would be 4 denied. Martinez’s argument is that his sentence was somehow undermined by the holding 5 in Johnson v. United States, __ U.S. __, 135 S.Ct. 2551 (2015), but the argument is 6 unsupported by any basis in that decision. In Johnson, the Supreme Court invalidated the 7 residual clause of the Armed Career Criminal Act (“ACCA”) (18 U.S.C. § 924(e)) on the 8 ground that the clause was vague. 135 S.Ct. at 2557-58. Martinez was not sentenced under 9 the ACCA, nor under any other residual clause. He was sentenced under a specific provision 10 of the United States Sentencing Guidelines (“Guidelines”) that provides for higher sentence 11 if an offender was previously convicted of alien smuggling – as Martinez was. Unlike the 12 defendant in Johnson, Martinez pled guilty to an offense that is explicitly defined and 13 referenced under the Guidelines; his argument about vagueness misses the mark. 14 Martinez’s waiver of the right to collaterally attack his sentence is enforceable against 15 him, and he’s got no legitimate beef in any event. His motion to vacate his sentence is 16 DENIED. 17 18 IT IS SO ORDERED. 19 20 DATED: March 17, 2017 21 22 HONORABLE LARRY ALAN BURNS United States District Judge 23 24 25 26 27 28 -2- 15cr0108/16cv0526

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