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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 Petitioner, 13 14 15 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. 16 17 18 19 On August 15, 2016, Jessica Lizeth Vargas Mariscal (“Petitioner”) proceeding pro 20 se, filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct her sentence 21 requesting a downward adjustment in her sentence based on her minor role in the offense. 22 [Doc. 32]. The government filed a response in opposition on September 19, 2016. [Doc. 23 35.] The Court has reviewed the record and submissions of the parties. For the reasons 24 stated below, the Court DENIES Petitioner’s motion. 25 26 I. DISCUSSION Under 28 U.S.C. § 2255, a federal prisoner may move the court that imposed her 27 sentence to vacate, set aside, or correct the sentence if it “was imposed in violation of the 28 Constitution or laws of the United States, or that the court was without jurisdiction to 1 3:14-cr-02460 1 impose such sentence, or that the sentence was in excess of the maximum authorized by 2 law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). To warrant relief 3 under § 2255, a petitioner must allege a “lack of jurisdiction or constitutional error, 4 [because] an error of law will not provide a basis for habeas relief unless that error 5 ‘resulted in a complete miscarriage of justice or in a proceeding inconsistent with the 6 rudimentary demands of fair procedure.’” Hamilton v. United States, 67 F.3d 761, 763-64 7 (9th Cir. 1995) (quoting United States v. Timmreck, 441 U.S. 780, 783–84 (1979)). 8 9 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 10 sentenced Petitioner on December 8, 2014 and Petitioner filed the pending motion 11 on August 15, 2016. However, even if Petitioner were able to show that her 12 Petition is timely, this Court lacks jurisdiction to consider her collateral challenge 13 to her sentence because she waived her appellate and collateral attack rights. 14 As part of her plea agreement, Petitioner waived both the right to appeal and 15 the right to collaterally attack the judgment and sentence. Because Petitioner does 16 not challenge the validity of the waiver, nor call into doubt the effectiveness of her 17 counsel’s assistance regarding her decision to enter into the agreement, the Court 18 finds that the waiver should be enforced. 19 A knowing and voluntary waiver of a statutory right is enforceable. United 20 States v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir. 1990). The right to 21 collaterally attack a sentence under 28 U.S.C. § 2255 is statutory in nature, and a 22 defendant may therefore waive the right to file a § 2255 petition. See, e.g., United 23 States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993) (by entering plea agreement 24 waiving right to appeal sentencing issues, defendant relinquished his right to seek 25 collateral relief from his sentence on the ground of newly discovered exculpatory 26 evidence). 27 The scope of a § 2255 waiver, however, may be subject to potential 28 limitations. For example, a defendant’s waiver will not bar an appeal if the trial 2 3:14-cr-02460 1 court did not satisfy certain requirements under Rule 11 of the Federal Rules of 2 Criminal Procedure to ensure that the waiver was knowingly and voluntarily made. 3 Navarro-Botello, 912 F.2d at 321. Such a waiver might also be ineffective where 4 the sentence imposed is not in accordance with the negotiated agreement, or if the 5 sentence imposed violates the law. Id.; United States v. Littlefield, 105 F.3d 527, 6 528 (9th Cir. 1996). Finally, a waiver may not “categorically foreclose” 7 defendants from bringing § 2255 proceedings involving ineffective assistance of 8 counsel or involuntariness of waiver. Abarca, 985 F.2d 1012, 1014; United States 9 v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1992). 10 In this case, none of these potential limitations to the validity of Petitioner’s 11 waiver are applicable. Petitioner does not raise any challenges to the knowing and 12 voluntary nature of her plea. The plea agreement contains a provision certifying 13 that Petitioner read the agreement (or had it read to her in her native language) and 14 that Petitioner discussed its terms with her defense counsel and fully understood its 15 meaning and effect. [Doc. 20, at 11-12.] It also contains a provision certifying that 16 the plea was knowing and voluntary. [Id. at 5-6.] Petitioner was sentenced to the 17 low end of the range recommended by the government. [Docs. 26, 29.] 18 Accordingly, Petitioner's waiver applies and this Court lacks jurisdiction to 19 consider her Petition. See Washington v. Lampert, 422 F.3d 864, 869 (9th 20 Cir.2005). 21 Secondly, the sentence imposed by the Court was in accordance with the 22 negotiated agreement, and in accordance with the applicable sentencing guidelines. 23 On September 11, 2014, Petitioner pled guilty to a single count of importation of 24 methamphetamine in violation of 21 U.S.C. §§ 952 and 960. [Doc. 20]. On 25 December 8, 2014, this Court sentenced Petitioner to a term of imprisonment of 41 26 months, followed by three years of supervised release. [Doc. 28]. The applicable 27 base offense level under U.S.S.G. § 2D1.1for that quantity of controlled substances 28 is 33. In arriving at Petitioner’s sentence, the Court granted a 2-level downward 3 3:14-cr-02460 1 adjustments to the base offense level for safety valve and another 2-level 2 downward adjustment for minor role. In addition, the Court granted a 3-level 3 reduction for acceptance of responsibility as recommended by the parties under the 4 terms of the Plea Agreement. The Court awarded a 4-level downward adjustment 5 for Fast Track, bringing the total offense level to 22, with a criminal history of 6 category I. Accordingly, the Court sentenced Petitioner to a 41-month sentence of 7 imprisonment, which represented the low-end of the 41 to 51 month sentencing 8 range established by the United States Sentencing Guidelines. Thus, although the 9 Court was not bound by the Plea Agreement, the Court followed its terms and the 10 resulting sentence was in accordance with both the terms of the negotiated 11 agreement and the applicable sentencing guidelines. 12 Finally, Petitioner does not dispute the effectiveness of her counsel’s 13 assistance regarding her decision to enter into the Plea Agreement. Therefore, the 14 Court finds that none of the recognized limitations of a defendant’s waiver of the 15 right to bring a § 2255 motion are present in this case. Accordingly, the collateral 16 attack waiver provision in Petitioner’s Plea Agreement will be enforced. 17 Even assuming Petitioner had not waived her right to collaterally attack her 18 sentence, Petitioner requests a downward adjustment in her sentence based on her 19 minor role in the offense. Under U.S.S.G. § 3B1.2, a court may decrease an 20 offense level by two if the defendant had a minor role in the criminal activity. In 21 support of a downward adjustment, Petitioner cites to United States v. Quintero- 22 Leyva, 823 F.3d 519 (9th Cir. 2016) and U.S.S.G. Amendment 794. Petitioner 23 argues Amendment 794 applies retroactively to her case and that, when the 24 Amendment is applied, she is entitled to a reduction in her sentence. On November 25 1, 2015, the United States Sentencing Commission issued Amendment 794, which 26 added five, non-exhaustive factors that courts should consider when determining 27 whether to grant a minor role reduction. U.S.S.G. App. C. Amend. 794. The 28 Commission also amended § 3B1.2’s commentary to allow for a broader and more 4 3:14-cr-02460 1 uniform application of the mitigating role sentencing factor. Id. In United States v. 2 Quintero-Leyva, the Ninth Circuit held Amendment 794 is a “clarifying 3 amendment” and “applies retroactively to direct appeals.” United States v. 4 Quintero-Leyva, 823 F.3d 519, 522-23 (9th Cir. 2016). During sentencing, this 5 Court granted Petitioner a two-level minor role reduction under § 3B1.2, therefore, 6 she has already received the relief she request. Accordingly, Petitioner’s motion is 7 denied.1 8 II. 9 For the foregoing reasons, the Court DENIES Petitioner's motion to vacate, set 10 CONCLUSION aside, or correct sentence pursuant to 28 U.S.C. § 2255. 11 12 IT IS SO ORDERED. 13 14 Dated: April 11, 2017 15 16 17 18 19 20 21 22 23 24 25 26                                                 27 1 28 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. 5 3:14-cr-02460

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