Vega v. USA

Filing 2

ORDER Denying Petition to Vacate under 28 USC 2255. The Court denies the Motion in its entirety and denies a certificate of appealability. Signed by Judge Jeffrey T. Miller on 6/1/2017.(All non-registered users served via U.S. Mail Service)(lrf)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 MELISSA ANN VEGA, 10 11 12 13 14 v. Petitioner, UNITED STATES OF AMERICA, CASE NO. 17cv0590 JM CRIM. No. 14cr3658 JM ORDER DENYING MOTION BROUGHT PURSUANT TO 28 U.S.C. § 2255 Respondent. Petitioner Melissa Ann Vega moves for a reduction in her custodial sentence and 15 the amount of restitution imposed as part of her sentence pursuant to 28 U.S.C. §2255 16 (“Motion”). For the reasons set forth below, the court denies the motion brought 17 pursuant to 28 U.S.C. §2255 and denies a certificate of appealability. 18 19 BACKGROUND On December 2, 2015, Petitioner waived indictment and entered a guilty plea to 20 Conspiracy to File False, Fictitious, and Fraudulent Claims (18 U.S.C. § 286), Tax 21 Evasion (26 U.S.C. § 7201), and Aggravated Identity Theft (18 U.S.C. § 1028A). The 22 signed plea agreement included Petitioner’s knowing and voluntary waiver of her rights 23 to appeal and collaterally attack her conviction, sentence, and restitution order. (Ct. 24 Dkt. 93, 94, 97). On March 18, 2016, this Court imposed a sentence of eight-four (84) 25 months in custody, whereby sixty (60) months were imposed on Counts 1 and 2 and 26 twenty-four (24) months was imposed on Count 3 (to run consecutive to Counts 1 and 27 2). The Court also imposed the jointly requested amount of restitution totaling 28 $7,176,836 to be paid to the Internal Revenue Service (“IRS”). -1- 17cv0590/14cr3658 1 On March 23, 2017, Petitioner filed the present Motion based upon documents 2 she received from the IRS. Petitioner interprets those documents to mean that the 3 agreed upon amount of restitution, $7,176,836, should be $340,000. The Government 4 explains that the documents received by Petitioner reflect a limited-scope audit 5 conducted by the IRS-Civil division. Of the 4,194 false returns filed by Petition, the 6 IRS-Civil division investigation focused only on 48 false returns. The $340,000 7 amount of losses reflected on those 48 false returns constitutes only about 1% of the 8 false returns prepared by Petitioner. (Keester Decl.). 9 DISCUSSION 10 I. Waiver 11 Petitioner waived her right to collaterally attack the sentence. Contract law 12 standards govern the validity of plea agreements. United States v. Keller, 902 F.2d 13 1391, 1393 (9th Cir. 1990). A defendant validly waives her appellate rights if the 14 language of the waiver encompasses the right to appeal on the grounds raised and she 15 knowingly and voluntarily agrees to waive those rights. United States v. Rahman, 642 16 F.3d 1257, 1259 (9th Cir. 2011). A waiver provision barring a defendant from seeking 17 collateral relief under a § 2255 motion is valid and enforceable. See United States v. 18 Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993); see United States v. Navarro-Botello, 912 19 F.2d 318, 321-22 (9th Cir. 1990) (reasoning the public policy of finality supports 20 upholding waivers in plea agreements). 21 Here, Petitioner validly waived her right to collaterally attack the sentence when 22 she executed a plea agreement expressly waiving her right to appeal or to collaterally 23 attack the conviction and sentence unless the court imposed a custodial sentence 24 greater than the high end of the guideline range recommended by the government. The 25 waiver applies because, at sentencing, the court imposed a sentence less than the 26 guideline range recommended by the Government. The record reveals that Defendant’s 27 waiver was knowing and voluntary. 28 Accordingly, the court dismisses the Motion. -2- 17cv0590/14cr3658 1 III. Ineffective Assistance of Counsel 2 Petitioner’s claims also fail on the merits. To prevail on an ineffective assistance 3 of counsel claim, a petitioner must demonstrate that (1) counsel’s performance was 4 deficient; and (2) counsel’s deficient performance prejudiced the defense. Strickland 5 v. Washington, 466 U.S. 668, 687 (1984). A petitioner must demonstrate that 6 counsel’s representation fell below an “objective standard of reasonableness” and that, 7 but for counsel’s errors, there is a reasonable probability that the result of the 8 proceeding would have been different. Id. at 694. 9 Here, Petitioner misinterprets the Form 886-A provided to her by IRS-Civil 10 division. (Ct. Dkt. 131). This document does not support Petitioner’s claim that total 11 restitution is $340,000. The declaration of IRS Special Agent Keester reveals that the 12 Form 886-A represents the IRS-Civil division investigation that focused only on 48 13 false returns, and not all the 4,194 false returns prepared by Petitioner. As the Form 14 886-A document is consistent with the agreed upon amount of restitution ($7,176,836), 15 Petitioner fails to establish any prejudice or that counsel provided deficient 16 performance. 17 In sum, the court denies the Motion. 18 IV. Certificate of Appealability 19 For the reasons set forth herein, Petitioner fails to make a substantial showing 20 of the denial of a constitutional right. Accordingly, the court denies any request for a 21 certificate of appealability. See 28 U.S.C. §2253(c)(2). 22 In sum, the court denies the Motion in its entirety and denies a certificate of 23 appealability. The Clerk of Court is instructed to close the file. 24 IT IS SO ORDERED. 25 DATED: June 1, 2017 26 Hon. Jeffrey T. Miller United States District Judge 27 28 cc: All parties -3- 17cv0590/14cr3658

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