Garcia-Vasquez v. USA
Filing
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ORDER denying Motion to Vacate, Set Aside, or Correct a Sentence Pursuant to 28 U.S.C. § 2255 as to Ricardo Garcia-Vasquez (1). The Motion to Vacate, Set Aside, or Correct Sentence is DENIED. This Court find that Movant has not made the necessary showing. A certificate of appealability is therefore Denied. Signed by Judge Roger T. Benitez on 11/3/2018.(All non-registered users served via U.S. Mail Service)(anh)
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NOV 0 5 2018
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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RICARDO GARCIA-VASQUEZ,
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Movant,
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v.
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UNITED STATES OF AMERICA,
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Respondent.
Case No.: 16CV0991-BEN
15CR0217-BEN
ORDER DENYING MOTION TO
VACATE, SET ASIDE, OR
CORRECT A SENTENCE
PURSUANT TO 28 U.S.C. § 2255
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Movant, RICARDO GARCIA-VASQUEZ, proceeding pro se, filed a Motion to
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Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255. Respondent,
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the United States of America, filed a response and Movant filed a Traverse. The motion
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is denied.
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BACKGROUND
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On January 29, 2015, the Government filed a one-count information charging
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Movant with violation of 8 U.S.C. § 1326(a) and (b), Removed Alien Found in the
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United States. Movant entered into a plea agreement with the government, in which he
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waived, to the full extent of the law, any right to appeal or to collaterally attack the
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,,
1 conviction and sentence. Movant thereafter pleaded guilty and came before this Court for
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sentencing. The Court sentenced Movant to 37 months in custody and a term of
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supervised release of three years.
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By his motion, Movant essentially argues that he is entitled to a reduced sentence
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(2015).
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LEGAL STANDARD
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Under§ 2255, a movant is entitled to relief if the sentence: (1) was imposed in
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violation of the Constitution or the laws of the United States; (2) was given by a court
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without jurisdiction to do so; (3) was in excess of the maximum sentence authorized by
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law; or (4) is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v.
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Speelman, 431 F.3d 1226, 1230 n.2 (9th Cir. 2005). If it is clear the movant has failed to
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state a claim, or has "no more than conclusory allegations, unsupported by facts and
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refuted by the record," a district court may deny a§ 2255 motion without an evidentiary
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hearing. United States v. Quan, 789 F.2d 711, 715 (9th Cir. 1986) ("Where a prisoner's
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motion presents no more than conclusory allegations, unsupported by facts and refuted by
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the record, an evidentiary hearing is not required."). Here, none is needed.
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DISCUSSION
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Because Movant is a deported alien no longer in custody, and for which no
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sentencing relief is now possible, the motion is moot. Cf, United States v. Castro-
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Verdugo, 750 F.3d 1065, 1076 (9th Cir. 2014) (Breyer, J., dissenting) ("Finally, once the
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Defendant was removed from the country ... any attempt to correct the [sentencing]
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error likely would have been denied as moot .... As long as Defendant was in Mexico,
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the imposition of probation, albeit illegal, was moot and the case or controversy
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requirement could not have been satisfied where, as here, the Defendant does not
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continue to suffer actual collateral consequences.") (citations omitted); Abdala v. INS,
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488 F.3d 1061, 1064 (9th Cir. 2007) ("[W]here the grounds for habeas relief will not
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redress collateral consequences, a habeas petition does not continue to present a live
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1 controversy once the petitioner is released from custody. For example, a petitioner
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subject to the collateral consequences of a ten-year bar to reentry did not present a
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cognizable claim where the petitioner was also permanently barred from reentry on a
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wholly separate ground."). Here, Movant was already subject to a lifetime bar of reentry
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by virtue of his previous deportations. No change in his sentence now would afford any
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relief.
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If the motion were not moot, it would fail because Movant validly waived his right
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and voluntary waivers of statutory rights of appeal or collateral attack because such
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"waivers usefully preserve the finality of judgments and sentences imposed pursuant to
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valid plea agreements." United States v. Anglin, 215 F.3d 1064, 1066 (9th Cir. 2000);
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United States v. Lo, 839 F.3d 777 (9th Cir. 2016) ("We will enforce a valid waiver even
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ifthe claims that could have been made on appeal absent that waiver appear meritorious,
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because the whole point of a waiver is the relinquishment of claims regardless of their
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merit."); United States v. Nunez, 223 F.3d 956, 958 (9th Cir. 2000) (courts enforce a
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waiver of appeal, as long as the waiver is knowingly and voluntary and encompasses the
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defendant's right to appeal on the grounds claimed on appeal). The Ninth Circuit
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recognizes that strong public policy considerations justify the enforcement of a
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defendant's waiver of his right to appeal or to collaterally attack a judgment. United
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States v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir. 1990). Waivers play an important
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role in the plea bargaining process and help ensure finality. Id. at 322. The finality of
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judgments benefits both the government and the courts. Id. In exchange for the
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defendant's guilty plea and waiver of rights to appeal and collaterally attack, the
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government and the courts need not spend resources on litigation after the sentencing. Id.
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The defendant gets a lower sentencing recommendation and the court is more willing to
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agree to a lower sentence than would be the case absent the waivers. "Collateral attack
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pursuant to a statutory provision is also subject to a knowing and voluntary waiver."
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United States v. Leniear, 574 F.3d 668, 672 n.3 (9th Cir. 2009); United States v. Abarca,
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985 F.2d 1012, 1014 (9th Cir. 1993).
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Here, the Plea Agreement provides that Movant expressly waived, to the full extent
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of the law, any right to appeal or to collaterally attack the conviction and sentence, except
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a post-conviction collateral attack based on a claim of ineffective assistance of counsel
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unless 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 sentencing.
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The Court imposed a sentence within the guideline range recommended by the
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Government. Under the plain language of the Plea Agreement, Movant waived his right
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to collaterally attack his sentence. In addition, Movant entered into the waiver knowingly
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and voluntarily. The waiver is clearly stated in the Plea Agreement. In the Plea
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Agreement, Movant certified that he knowingly and voluntarily entered into the Plea
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Agreement, read it, discussed its terms with his attorney, and fully understood its
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meaning and effect. This Court advised Movant of the rights he was giving up by
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pleading guilty. Movant affirmed that he had discussed the Plea Agreement with his
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attorneys, understood it, and did not have any questions. Finally, at the conclusion of
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sentencing, Movant and his attorney both acknowledged verbally that Movant had given
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up his right to collaterally attack. Accordingly, Movant' s waiver was valid and will be
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enforced.
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Additionally, contrary to his contentions, Movant's sentence was not
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unconstitutionally enhanced under Johnson. In Johnson, the Supreme Court considered
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language in the Armed Career Criminal Act ("ACCA"). The ACCA imposes a
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mandatory minimum sentence of 15 years for a defendant who violates 18 U.S.C. §
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922(g) and "has three previous convictions by any court ... for a violent felony or
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serious drug offense, or both." 18 U.S.C. § 924(e)(l). The Supreme Court examined the
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definition of"violent felony" and held that a portion of that definition known as the
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"residual clause" is void for vagueness. Imposing an increased sentence under the
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residual clause of the ACCA's definition of"violent felony" violates the Constitution's
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1 guarantee of due process. Johnson, 135 S. Ct. at 2563. The Supreme Court expressly
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confined its holding to this particular portion of the statute and confirmed that its holding
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does not apply to the "serious drug offense" clause or the remainder of the "violent
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felony" definition. Id.
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Johnson is inapplicable here because Movant was not sentenced under the residual
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clause of the violent felony definition of the ACCA. See United States v. Ruiz-Diaz, 668
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F. App'x 289, 290 (9th Cir. 2016) ("Because the [sentencing] enhancement was not
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issue as to whether [defendant's] sentence is illegal."). Rather, he was sentenced
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pursuant to 8 U.S.C. § 1326, which was not implicated by Johnson. See United States v.
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Padilla, Case No. 2:10CR-00454-CAS, 2017 WL 962756, at *3, 2017 U.S. Dist. LEXIS
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35650, at *8-9 (C.D. Cal. Mar. 13, 2017) (finding Johnson inapplicable to petitioner's §
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2255 petition because petitioner's "sentence was not based upon any guidelines that
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might have been implicated by Johnson."). Movant's motion may be construed as
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challenging the Sentencing Guidelines as unconstitutionally vague based on the same
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reasoning as Johnson. However, the Supreme Court rejected that argument in Beckles v.
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United States, 137 S. Ct. 886 (2017), holding that the federal Sentencing Guidelines are
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not subject to vagueness challenges under the due process clause. Id. at 890, 892, 895.
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As there are no arguable grounds to collaterally attack Movant's sentence as
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illegal, the Court enforces the collateral attack waiver. Ruiz-Diaz, 668 F. App'x at 290
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(citing United States v. Watson, 582 F.3d 974, 988 (9th Cir. 2009)). Alternatively,
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Movant's motion is denied on the merits.
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CONCLUSION
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The Motion to Vacate, Set Aside, or Correct Sentence is DENIED.
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A court may issue a certificate of appealability where the movant has made a
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"substantial showing of the denial of a constitutional right," and reasonable jurists could
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debate whether the motion should have been resolved differently, or that the issues
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presented deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S.
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322, 335 (2003). This Court finds that Movant has not made the necessary showing. A
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certificate of appealability is therefore DENIED.
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