Vargas Mariscal v. USA

Filing 2

ORDER Denying Petition to Vacate under 28 USC 2255. Signed by Judge M. James Lorenz on 4/11/2017.(All non-registered users served via U.S. Mail Service)(sjt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Petitioner,

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Case No.: 3:14-cr-02460

JESSICA LIZETH VARGAS
MARISCAL,
v.
UNITED STATES OF AMERICA,

ORDER DENYING MOTION TO
VACATE, SET ASIDE, OR
CORRECT SENTENCE PURSUANT
TO 28 U.S.C. § 2255 [Doc. 32]

Respondent.

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On August 15, 2016, Jessica Lizeth Vargas Mariscal (“Petitioner”) proceeding pro

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se, filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct her sentence

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requesting a downward adjustment in her sentence based on her minor role in the offense.

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[Doc. 32]. The government filed a response in opposition on September 19, 2016. [Doc.

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35.] The Court has reviewed the record and submissions of the parties. For the reasons

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stated below, the Court DENIES Petitioner’s motion.

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I.

DISCUSSION
Under 28 U.S.C. § 2255, a federal prisoner may move the court that imposed her

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sentence to vacate, set aside, or correct the sentence if it “was imposed in violation of the

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Constitution or laws of the United States, or that the court was without jurisdiction to
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impose such sentence, or that the sentence was in excess of the maximum authorized by

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law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). To warrant relief

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under § 2255, a petitioner must allege a “lack of jurisdiction or constitutional error,

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[because] an error of law will not provide a basis for habeas relief unless that error

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‘resulted in a complete miscarriage of justice or in a proceeding inconsistent with the

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rudimentary demands of fair procedure.’” Hamilton v. United States, 67 F.3d 761, 763-64

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(9th Cir. 1995) (quoting United States v. Timmreck, 441 U.S. 780, 783–84 (1979)).

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As a preliminary matter, Petitioner’s motion is time barred. Motions under
§2255 have a one year period of limitation. 28 U.S.C. 2255(f). Here, the Court

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sentenced Petitioner on December 8, 2014 and Petitioner filed the pending motion

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on August 15, 2016. However, even if Petitioner were able to show that her

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Petition is timely, this Court lacks jurisdiction to consider her collateral challenge

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to her sentence because she waived her appellate and collateral attack rights.

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As part of her plea agreement, Petitioner waived both the right to appeal and

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the right to collaterally attack the judgment and sentence. Because Petitioner does

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not challenge the validity of the waiver, nor call into doubt the effectiveness of her

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counsel’s assistance regarding her decision to enter into the agreement, the Court

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finds that the waiver should be enforced.

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A knowing and voluntary waiver of a statutory right is enforceable. United

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States v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir. 1990). The right to

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collaterally attack a sentence under 28 U.S.C. § 2255 is statutory in nature, and a

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defendant may therefore waive the right to file a § 2255 petition. See, e.g., United

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

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waiving right to appeal sentencing issues, defendant relinquished his right to seek

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collateral relief from his sentence on the ground of newly discovered exculpatory

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evidence).

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The scope of a § 2255 waiver, however, may be subject to potential

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limitations. For example, a defendant’s waiver will not bar an appeal if the trial
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court did not satisfy certain requirements under Rule 11 of the Federal Rules of

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Criminal Procedure to ensure that the waiver was knowingly and voluntarily made.

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Navarro-Botello, 912 F.2d at 321. Such a waiver might also be ineffective where

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the sentence imposed is not in accordance with the negotiated agreement, or if the

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sentence imposed violates the law. Id.; United States v. Littlefield, 105 F.3d 527,

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528 (9th Cir. 1996). Finally, a waiver may not “categorically foreclose”

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defendants from bringing § 2255 proceedings involving ineffective assistance of

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counsel or involuntariness of waiver. Abarca, 985 F.2d 1012, 1014; United States

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v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1992).

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In this case, none of these potential limitations to the validity of Petitioner’s

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waiver are applicable. Petitioner does not raise any challenges to the knowing and

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voluntary nature of her plea. The plea agreement contains a provision certifying

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that Petitioner read the agreement (or had it read to her in her native language) and

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that Petitioner discussed its terms with her defense counsel and fully understood its

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meaning and effect. [Doc. 20, at 11-12.] It also contains a provision certifying that

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the plea was knowing and voluntary. [Id. at 5-6.] Petitioner was sentenced to the

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low end of the range recommended by the government. [Docs. 26, 29.]

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Accordingly, Petitioner's waiver applies and this Court lacks jurisdiction to

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consider her Petition. See Washington v. Lampert, 422 F.3d 864, 869 (9th

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Cir.2005).

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Secondly, the sentence imposed by the Court was in accordance with the

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negotiated agreement, and in accordance with the applicable sentencing guidelines.

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On September 11, 2014, Petitioner pled guilty to a single count of importation of

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methamphetamine in violation of 21 U.S.C. §§ 952 and 960. [Doc. 20]. On

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December 8, 2014, this Court sentenced Petitioner to a term of imprisonment of 41

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months, followed by three years of supervised release. [Doc. 28]. The applicable

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base offense level under U.S.S.G. § 2D1.1for that quantity of controlled substances

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is 33. In arriving at Petitioner’s sentence, the Court granted a 2-level downward
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adjustments to the base offense level for safety valve and another 2-level

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downward adjustment for minor role. In addition, the Court granted a 3-level

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reduction for acceptance of responsibility as recommended by the parties under the

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terms of the Plea Agreement. The Court awarded a 4-level downward adjustment

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for Fast Track, bringing the total offense level to 22, with a criminal history of

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category I. Accordingly, the Court sentenced Petitioner to a 41-month sentence of

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imprisonment, which represented the low-end of the 41 to 51 month sentencing

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range established by the United States Sentencing Guidelines. Thus, although the

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Court was not bound by the Plea Agreement, the Court followed its terms and the

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resulting sentence was in accordance with both the terms of the negotiated

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agreement and the applicable sentencing guidelines.

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Finally, Petitioner does not dispute the effectiveness of her counsel’s

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assistance regarding her decision to enter into the Plea Agreement. Therefore, the

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Court finds that none of the recognized limitations of a defendant’s waiver of the

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right to bring a § 2255 motion are present in this case. Accordingly, the collateral

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attack waiver provision in Petitioner’s Plea Agreement will be enforced.

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Even assuming Petitioner had not waived her right to collaterally attack her

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sentence, Petitioner requests a downward adjustment in her sentence based on her

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minor role in the offense. Under U.S.S.G. § 3B1.2, a court may decrease an

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offense level by two if the defendant had a minor role in the criminal activity. In

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support of a downward adjustment, Petitioner cites to United States v. Quintero-

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Leyva, 823 F.3d 519 (9th Cir. 2016) and U.S.S.G. Amendment 794. Petitioner

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argues Amendment 794 applies retroactively to her case and that, when the

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Amendment is applied, she is entitled to a reduction in her sentence. On November

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1, 2015, the United States Sentencing Commission issued Amendment 794, which

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added five, non-exhaustive factors that courts should consider when determining

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whether to grant a minor role reduction. U.S.S.G. App. C. Amend. 794. The

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Commission also amended § 3B1.2’s commentary to allow for a broader and more
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uniform application of the mitigating role sentencing factor. Id. In United States v.

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Quintero-Leyva, the Ninth Circuit held Amendment 794 is a “clarifying

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amendment” and “applies retroactively to direct appeals.” United States v.

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Quintero-Leyva, 823 F.3d 519, 522-23 (9th Cir. 2016). During sentencing, this

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Court granted Petitioner a two-level minor role reduction under § 3B1.2, therefore,

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she has already received the relief she request. Accordingly, Petitioner’s motion is

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denied.1

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II.

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For the foregoing reasons, the Court DENIES Petitioner's motion to vacate, set

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CONCLUSION

aside, or correct sentence pursuant to 28 U.S.C. § 2255.

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IT IS SO ORDERED.

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Dated: April 11, 2017

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Petitioner is not barred from filing a motion for relief of sentence under 18 U.S.C. § 3582, however, as
mentioned above, the Court already granted a two-level downward adjustment for Petitioner’s minor
role under § 3B1.2.
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