Lopez-Vaal v. USA

Filing 2

ORDER Denying Petition to Vacate under 28 USC 2255. Signed by Judge Gonzalo P. Curiel on 1/10/18.(All non-registered users served via U.S. Mail Service)(dlg)

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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, Case No.: 3:16-cr-00995-GPC 3:17-cv-00926-GPC Plaintiff, 12 13 v. 14 JAIME RENE LOPEZ-VAAL, ORDER DENYING DEFENDANT'S MOTION UNDER 28 U.S.C. § 2255 Defendant. 15 [ECF No. 38] 16 Defendant Jaime Rene Lopez-Vaal has filed a motion to “vacate, set aside, or 17 18 correct sentence” under 28 U.S.C. § 2255. The motion is fully briefed. For the reasons 19 set forth below, the Court DENIES the motion. 20 I. Background 21 On May 5, 2016, Defendant waived his right to an indictment and was charged by 22 information with one count of being a removed alien found in the United States without 23 consent from the Attorney General, in violation of 8 U.S.C. § 1326(a) and (b). (ECF 24 Nos. 10–11.) On June 22, 2016, Defendant appeared before Magistrate Judge Adler to 25 change his plea from not guilty to guilty. (ECF No. 17.) At that hearing, Defendant was 26 questioned extensively about the plea agreement Defendant had entered into with the 27 government, in which he agreed to plead guilty to a single count of violating 8 U.S.C. 28 § 1326(a) and (b). (ECF No. 19.) In the agreement, Defendant admitted that he suffered 1 3:16-cr-00995-GPC 3:17-cv-00926-GPC 1 a felony conviction in Washington state court in 2001 for manufacturing, delivering, or 2 possessing with intent to manufacture or deliver a controlled substance; that he was 3 lawfully excluded, deported, and removed from the United States in 2007; and that he 4 was found in the United States in 2016 after knowingly and voluntarily reentering and 5 remaining in the United States without the Attorney General’s consent or equivalent 6 thereof. (Id. at 2–3.) In the plea agreement, Defendant agreed that he “has had a full 7 opportunity to discuss all the facts and circumstances of this case with defense counsel, 8 and has a clear understanding of the charges and consequences” of his plea, and was 9 pleading guilty “because in truth and in fact defendant is guilty and for no other reason.” 10 (Id. at 5.) Defendant also agreed that he understood that the sentencing judge would 11 consult the sentencing guidelines but that the ultimate decision on sentencing was up to 12 the sentencing judge, and that any estimation by defense counsel as to the probable 13 sentence was not binding on the judge. (Id. at 6–7.) While Defendant and the 14 government did not agree to a criminal history category, they agreed to a base offense 15 level of 8, an enhancement of 16 levels as a result of Defendant’s prior convictions, a two 16 or three level deduction for acceptance of responsibility, and a four level departure under 17 the fast-track program. (Id. at 7–8.) 18 In the plea agreement, Defendant also agreed to waive “to the full extent of the 19 law, any right to appeal or to collaterally attack the conviction and any lawful restitution 20 order, except a post-conviction collateral attack based on a claim of ineffective assistance 21 of counsel.” (Id. at 10–11.) Defendant also waived “to the full extent of the law, any 22 right to appeal or to collaterally attack the sentence, unless the Court imposes a custodial 23 sentence above the high end of the guideline range . . . recommended by the Government 24 pursuant to this agreement at the time of sentencing,” and agreed that if he “believes the 25 Government’s recommendation is not in accord with this plea agreement, defendant will 26 object at the time of sentencing; otherwise the objection will be deemed waived and 27 cannot be raised on appeal.” (Id. at 11.) In the last pages of the plea agreement, 28 Defendant agreed that by “signing this agreement, defendant certifies that defendant has 2 3:16-cr-00995-GPC 3:17-cv-00926-GPC 1 read it (or that it has been read to defendant in defendant’s native language),” that he “has 2 discussed the terms of this agreement with defense counsel and fully understands its 3 meaning and effect,” and that defendant “is satisfied with counsel’s representation,” all of 4 which was “defendant’s independent opinion, and his/her counsel did not advise him/her 5 about what to say in this regard.” (Id. at 12–13.) Defendant initialed every page of the 6 plea agreement and signed the final page. 7 At the change of plea hearing, a certified Spanish interpreter translated the entirety 8 of the proceedings into Spanish for Defendant and three other defendants who were also 9 changing their pleas in unrelated cases. (ECF 40 at 1.) Before the hearing began, 10 Defendant was placed under oath. (Id. at 2.) Defendant then indicated that he wished to 11 withdraw his prior plea of not guilty and enter a plea of guilty to the charge in the 12 information. (Id. at 3.) Defendant stated that he understood that he was under oath and 13 that he could be charged with perjury if he made a false statement at the hearing. (Id. at 14 4.) 15 Defendant stated that he understood that he was admitting to the elements of the 16 offense with which he was charged, which were: (1) that he was an alien, (2) he had been 17 deported, and (3) he returned or was found in the United States without applying for and 18 receiving proper permission. (Id.) Defendant also indicated that he understood the 19 maximum penalties for that charge. (Id. at 7.) Defendant stated that he was not a citizen 20 of the United States, and that he understood, after consulting with his counsel, that there 21 was a “virtual certainty” that he would be removed from the United States following his 22 custodial sentence. (Id. at 8.) Defendant indicated that he understood the sentencing 23 judge was not bound by the sentencing guidelines and that once he is sentenced, he could 24 not withdraw his plea. (Id. at 9.) Defendant indicated that before he signed his plea 25 agreement, it was translated into Spanish so that Defendant could fully understand it, that 26 he went over all the terms of the plea agreement with his counsel and asked him any 27 questions he had, and that he had no questions about the plea agreement at the time of the 28 3 3:16-cr-00995-GPC 3:17-cv-00926-GPC 1 hearing. (Id. at 10.) Defendant stated that he was satisfied with the advice he received 2 from his attorney. (Id. at 11.) 3 Judge Adler questioned Defendant about the waiver of appeal and collateral attack 4 section in the plea agreement. Defendant indicated that he recalled going over that 5 section of the plea agreement with his counsel, and that at the time he initialed and signed 6 the plea agreement he understood the rights he was waiving. (Id.) Defendant’s counsel 7 also indicated that he had discussed the plea agreement with Defendant. (Id. at 11–12.) 8 Defendant then affirmed certain facts as true, including that he is not a citizen of 9 the United States, that on June 12, 2001, he suffered a felony conviction for 10 manufacturing, delivering, or possessing with intent to manufacture or deliver a 11 controlled substance in violation of the Revised Code of Washington § 69.50.401, that he 12 was lawfully excluded, deported, and removed from the United States to Mexico on April 13 16, 2007, and that on April 7, 2016, he was found in the United States without receiving 14 permission from the Attorney General or designated successor. (Id. at 12–13.) 15 Defendant’s counsel then affirmed that he believed Defendant’s guilty plea was made 16 voluntarily and with his concurrence. (Id. at 13.) Judge Adler then made a few 17 corrections to typographical errors in the plea agreement, which Defendant initialed. 18 (Id.) After Defendant formally pled guilty, Judge Adler found that Defendant’s plea was 19 “freely and voluntarily given, with an understanding, knowing, and intelligent waiver of 20 [his] rights; that [he] is competent to enter his plea; and that there’s factual basis for [the] 21 plea.” (Id. at 14.) This Court entered an order accepting Defendant’s guilty plea on July 22 13, 2016. (ECF No. 21.) 23 24 Prior to the sentencing hearing, the Probation Office prepared a presentencing report (“PSR”) calculating a total offense level of 19 and a criminal history category of 25 26 27 28 4 3:16-cr-00995-GPC 3:17-cv-00926-GPC 1 V, resulting in a guideline range of 57 to 71 months.1 (ECF No. 29 at 13.) The PSR 2 noted, however, that the government was recommending a four-level “fast track” 3 departure under United States Sentencing Guideline (USSG) § 5K3.1. (Id. at 14.) 4 Applying the four-level departure, the PSR calculated a guidelines range of 37 to 46 5 months, and recommended a sentence of 40 months imprisonment. (Id. at 16–17.) The 6 government agreed with the PSR’s calculation of the proper guidelines range, but 7 recommended a sentence of 37 months imprisonment. (ECF No. 30.) 8 9 The offense level calculation consisted of the following. The base offense level under USSG § 2L1.2 is eight. Four levels were added under § 2L1.2(b)(1) because 10 Defendant had been convicted of a felony that was an illegal reentry offense.2 Ten levels 11 were added under § 2L1.2(b)(3) because after Defendant was ordered removed from the 12 United States for the first time, Defendant engaged in criminal conduct resulting in a 13 conviction for a felony offense for which the sentence imposed was five years or more.3 14 Three levels were deducted under USSG § 3E1.1(a) and (b) for acceptance of 15 responsibility. This left a total offense level of 19. A four-level departure under the fast- 16 track program resulted in an offense level of 15. Defendant’s criminal history category calculation consisted of the following. 17 18 Three points were added under USSG § 4A1.1(a) as a result of Defendant’s two 19 Washington state felony convictions in 2001 for unlawful delivery of a controlled 20 substance. Three points were added under USSG § 4A1.1(a) as a result of Defendant’s 21 federal misdemeanor and felony illegal entry convictions in 2007. And three points were 22 23 24 25 26 27 28 1 The Probation Office had submitted an earlier PSR based on the November 1, 2015 version of the United States Sentencing Guidelines (see ECF No. 22), but later filed an amended presentencing report using the November 1, 2016 version of the guidelines (ECF No. 29). 2 Before the instant offense, Defendant had sustained a felony illegal reentry offense. See United States v. Lopez-Vaal, No. 3:07-cr-0423-IEG-1, ECF No. 20 (S.D. Cal.) (criminal judgment convicting Defendant of misdemeanor and felony illegal entry in violation of 8 U.S.C. § 1325). 3 Defendant was convicted in Minnesota state court of felony possession of a pistol or assault weapon. (ECF No. 29 at 9–10.) 5 3:16-cr-00995-GPC 3:17-cv-00926-GPC 1 added under USSG § 4A1.1(a) as a result of Defendant’s Minnesota state felony 2 conviction for possession of a pistol/assault weapon. Two points were added under 3 USSG § 4A1.1(d) because Defendant committed the instant offense while under criminal 4 justice sentences. These eleven criminal history points resulted in a category of V. 5 The Court held a sentencing hearing in this case on November 4, 2016, during 6 which Defendant was present and received the assistance of a Court-certified Spanish 7 language interpreter. (ECF No. 41 at 2.) Upon questioning by the Court, Defendant’s 8 counsel agreed with the PSR and government’s offense level calculation. (Id. at 4.) 9 Defendant’s counsel argued, however, for an additional two-level departure under USSG 10 § 5K2.0.4 (Id. at 5.) Defendant’s counsel pointed to Defendant’s wish to become a better 11 father and husband, which was the reason for his reentry. (Id. at 6.) Counsel noted that 12 Defendant planned to return to his hometown and to make plans for his family to visit 13 him. (Id. at 6–7.) In light of his construction and landscaping work, Defendant planned 14 to financially support his family to the extent possible, and according to counsel, is intent 15 on changing his life when he gets out of prison. (Id. at 7.) For those reasons, 16 Defendant’s counsel requested the additional two-level departure and a sentence of 30 17 months. (Id.) The government re-asserted its 37-month sentence recommendation. (Id. 18 at 8.) The Probation Officer re-asserted the PSR’s 40-month sentence recommendation. 19 (Id.) The Court found that there were not circumstances to support Defense counsel’s 20 21 requested additional two-level departure. (Id. at 9.) Considering the § 3553 factors, the 22 Court concluded that a 40-month sentence was appropriate in light of Defendant’s 23 criminal history and the egregious facts underlying Defendant’s gun-possession 24 conviction. (Id. at 9–11.) The Court informed Defendant of his right to appeal and 25 26 27 28 Defendant’s counsel originally requested a six-level departure in an effort to match the 2016 version of the USSG, but because the amended PSR and the government’s new sentencing recommendations used the 2016 version of the USSG, Defendant’s counsel altered his request to a two-level departure. 4 6 3:16-cr-00995-GPC 3:17-cv-00926-GPC 1 instructed Defendant that he “must file [his] notice of appeal within 14 days of today’s 2 date.” (Id. at 12.) The Court also noted, however, that because the sentence imposed was 3 within the guidelines range recommended by the government, the Court’s “understanding 4 is Mr. Lopez has waived his right to appeal to the extent possible,” with which 5 Defendant’s counsel agreed. (Id.) The Court then asked Defendant, “[i]s that also your 6 understanding, Mr. Lopez, that you have waived your right to appeal to the extent 7 possible?” Defendant responded: “Yes,” but then said, “I didn’t understand that.” (Id. at 8 12–13.) The Court followed up and asked Defendant: “Do you also agree, sir, that, based 9 on the sentence that was imposed, that you have waived your right to appeal this sentence 10 to the extent provided under the law?” Defendant responded: “That’s fine.” (Id. at 13.) 11 A criminal judgment reflecting the Court’s sentence was issued on November 9, 2016. 12 (ECF No. 32.) 13 On February 6, 2017, Defendant, appearing pro se, filed a notice of appeal. (ECF 14 No. 33.) In that notice, Defendant indicated that he was filing the notice of appeal 15 because he “has not heard nothing from Defense Counsel,” and requested that he be 16 appointed counsel to consider the effect of “Mathis, Descamp, Taylor, [and] Dimaya.” 17 (Id. at 1.) Defendant noted that he stated to his counsel that “I had never seen an 18 Immigration Judge for Enhancement to be Valid (14 Point Enhancement) and Defendant 19 has Never received a Reinstatement of Deportation Order at all.” (Id.) On March 16, 20 2017, the Ninth Circuit dismissed Defendant’s appeal as untimely under Federal Rule of 21 Appellate Procedure 4(b)(1)(A). (ECF No. 36.) 22 23 24 25 Defendant filed the instant motion to vacate, set aside, or correct his sentence on May 4, 2017. (ECF No. 38.) II. Legal Standard 28 U.S.C. § 2255 authorizes the Court to “vacate, set aside, or correct the 26 sentence” of a federal prisoner on “the ground that the sentence was imposed in violation 27 of the Constitution or laws of the United States, or that the court was without jurisdiction 28 to impose such sentence, or that the sentence was in excess of the maximum authorized 7 3:16-cr-00995-GPC 3:17-cv-00926-GPC 1 by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). To warrant 2 relief under § 2255, a prisoner must allege a constitutional or jurisdictional error, or a 3 “fundamental defect which inherently results in a complete miscarriage of justice [or] an 4 omission inconsistent with the rudimentary demands of fair procedure.” United States v. 5 Timmreck, 441 U.S. 780, 783 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 6 (1962)). 7 8 9 III. Analysis A. Effect of Collateral Attack Waiver in Defendant’s Plea Agreement The government contends that Defendant waived most of his arguments pursued in 10 his 2255 motion via the appellate and collateral attack waiver section in his plea 11 agreement. “The Ninth Circuit has upheld the enforceability of waivers in similar plea 12 agreements, reasoning that the right to appeal or collaterally attack one’s sentence [under 13 § 2255] is derived by statute, and ‘[a] knowing and voluntary waiver of a statutory right 14 is enforceable.’” Entzminger v. United States, No. 3:12-cr-3450-H, 2015 WL 13333346, 15 at *5 (S.D. Cal. Feb. 18, 2015) (quoting United States v. Abarca, 985 F.2d 1012, 1014 16 (9th Cir. 1993)). “The scope of a § 2255 waiver, however, may be subject to potential 17 limitations,” such as “if the trial court did not satisfy certain requirements under Rule 18 11,” “where the sentence imposed is not in accordance with the negotiated agreement, or 19 if the sentence imposed violates the law.” Mariscal v. United States, No. 3:14-cr-02460, 20 2017 WL 1346641, at *1 (S.D. Cal. Apr. 11, 2017). Moreover, “a waiver may not 21 ‘categorically foreclose’ defendants from bringing § 2255 proceedings involving 22 ineffective assistance of counsel or involuntariness of waiver.” Id. Here, Defendant 23 made a clear waiver of his right to collaterally attack his sentence. To the extent his 24 arguments in the instant motion are based on assertions other than the exceptions just 25 listed, Defendant’s collateral attack is barred by the waiver in his plea agreement. 26 27 28 B. Whether Defendant’s Waiver was Knowing and Voluntary Defendant suggests that he did not knowingly and voluntarily waive his right to collaterally attack his sentence, but the Court is unpersuaded. Defendant asserts that his 8 3:16-cr-00995-GPC 3:17-cv-00926-GPC 1 counsel “did not explain to Defendant the Consequences of Pleading Guilty or any 2 Provisions on the Plea Agreement and just told me to si[g]n that I would not be get[t]ing 3 more than 24 Months.” (ECF No. 45 at 1.) But the change of plea hearing transcript 4 makes clear that was not the case. During the change of plea hearing, Judge Adler asked 5 Defendant if, before signing the plea agreement, it was translated into Spanish so he 6 could fully under that it, to which Defendant responded yes. (ECF No. 40 at 10.) Judge 7 Adler also asked Defendant if he recalled going over the waiver provisions of the plea 8 agreement with his counsel before he signed and initialed the agreement, to which 9 Defendant responded yes. (Id. at 11.) Judge Adler also asked Defendant’s counsel 10 whether he believed that Defendant fully understood the waiver provisions of the plea 11 agreement, and counsel responded that he did. (Id. at 11–12.) In light of Defendant’s 12 responses to these questions, coupled with his having initialed each page of the plea 13 agreement and signing the final page, the Court concludes that Defendant knowingly and 14 voluntarily waived his right to collaterally attack his sentence. 15 In his reply, Defendant suggests that during the change of plea hearing, the 16 translator did not “consult” Defendant while performing the translation. The Court finds 17 this assertion implausible. First, the hearing transcript indicates that each time a question 18 was asked to the participating defendants, the interpreter considered whether each 19 defendant responded the same way. (E.g., id. (“THE COURT: As to Mr. Gomez and 20 Mr. Lopez, before you signed and initialed your plea agreement, was it translated to you 21 in Spanish so you could fully understand it? THE INTERPRETER: Yes, as to the 22 Spanish-speaking defendants.” (emphasis added).) Moreover, if the interpreter was 23 responding to Judge Adler’s questions without consulting Defendant, Judge Adler would 24 have admonished the interpreter to wait for each defendant’s response. Because no such 25 admonishment or mention of this problem appears anywhere in the transcript, the Court 26 finds it implausible that the interpreter was not accurately relaying Defendant’s responses 27 to Judge Adler’s questioning. 28 // 9 3:16-cr-00995-GPC 3:17-cv-00926-GPC 1 C. IAC Claim 2 As stated above, Defendant’s waiver of his right to collaterally attack his sentence 3 is not effective with respect to claims of ineffective assistance of counsel. An individual 4 claiming ineffective assistance of counsel (“IAC”) must show that (1) “deficient 5 performance by his counsel” and (2) “that the performance prejudiced” the individual. 6 Entzminger, 2015 WL 13333346, at *1. 7 8 9 10 11 12 13 14 Counsel’s performance is deficient only if it falls below an objective standard of reasonableness. “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” When considering a claim of ineffective assistance of counsel, a reviewing court must be highly deferential to counsel’s performance. The [defendant] must overcome the “strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.” A [defendant] must show “that counsel made errors so serious that ‘counsel’ was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.” Reasonable tactical decisions that a petitioner later questions do not create ineffective assistance claims. 17 To show prejudice, the Petitioner must establish that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” A reasonable probability is a probability sufficient to undermine confidence in the outcome. 18 Id. (quoting Strickland v. Washington, 466 U.S. 687–89, 694 (1984)) (additional citation 19 omitted). Here, Defendant’s IAC claim can be categorized into three discrete complaints, 20 consisting of his counsel’s failure to (1) investigate the removal that served as the basis 21 for Defendant’s illegal reentry conviction, (2) investigate the propriety of the sentencing 22 enhancement on the basis of Defendant’s Minnesota conviction, and (3) file an appeal 23 despite Defendant’s explicit request to do so. 15 16 24 With respect to the first assertion, Defendant argues that he “has never seen an 25 Immigration Judge for the facts in [the] Plea Agreement,” and that he told his counsel 26 about that fact. (ECF No. 38 at 12.) Defendant has failed, however, to suggest any 27 reason he was entitled to appear before an immigration judge prior to his removal in 28 2007. To the contrary, it appears that Defendant had no such right. Under Section 10 3:16-cr-00995-GPC 3:17-cv-00926-GPC 1 235(b)(1) of the Immigration and Nationality Act, “[i]f an immigration officer determines 2 that an alien . . . who is arriving in the United States . . . is inadmissible under section 3 1182(a)(6)(C) or 1182(a)(7) of this title, the officer shall order the alien removed from 4 the United States without further hearing or review unless the alien indicates either an 5 intention to apply for asylum under section 1158 of this title or a fear of persecution.” 8 6 U.S.C. § 1225(b)(1). The government has submitted a copy of the INS documents 7 relating to Defendant’s 2007 removal from the United States. These forms indicate that 8 Defendant entered the United States on April 15, 2007, near Calexico, California. (ECF 9 No. 42, Ex. 6 at 2.) On April 15 and 16, Defendant initialed and signed expedited 10 removal documents containing his admission that he was in the United States illegally 11 and had no fear or concern about being returned to his home country or being removed 12 from the United States, he would not be harmed if he was returned to his home country of 13 Mexico, and that he did not have any questions. (Id. at 3–5.) In light of Defendant’s 14 concessions in these documents that he had just arrived into the country illegally and had 15 no fear about being returned to his home country, Defendant had no right to appear 16 before an immigration judge prior to his expedited removal. Defendant has thus failed to 17 show that, even if his counsel had investigated the assertion that Defendant never 18 appeared before an immigration judge prior to his 2007 removal, the outcome in this case 19 would be any different. 20 Next, Defendant argues that his counsel was deficient for failing to object to the 21 PSR’s consideration of Defendant’s Minnesota and Washington criminal convictions 22 because the PSR did not offer judicially noticeable documents demonstrating that these 23 convictions were proper bases for enhancements or criminal history points. However, 24 Defendant fails to offer any authority, and the Court is aware of none, stating that in order 25 for the Court to accept the PSR’s recommendation, the PSR author must offer the Court 26 judicially noticeable documents proving the validity of these underlying convictions. 27 Counsel’s failure to object to the absence of such noticeable documents therefore was not 28 11 3:16-cr-00995-GPC 3:17-cv-00926-GPC 1 deficient performance because there was no legal basis for such an objection.5 2 Relatedly, Defendant contends that his counsel should have objected to the use of 3 his Minnesota felony as a predicate for an enhancement, and, in support of that argument, 4 cites Supreme Court decisions applying the categorical and modified categorical 5 approaches. The categorical and modified categorical approaches, however, have no 6 relevance here. The guidelines section at issue here, § 2L1.2(b)(3)(A), instructs that a 10- 7 point enhancement should be applied if, “at any time after the defendant was ordered 8 deported or ordered removed from the United States for the first time, the defendant 9 engaged in criminal conduct resulting in . . . a conviction for a felony offense (other than 10 an illegal reentry offense) for which the sentence imposed was five years or more.” In 11 2011, Defendant was sentenced to 60 months in prison by a Minnesota court for 12 possessing a pistol/assault weapon. That conviction was a felony offense and the 13 sentence imposed was 60 months, or five years. Defendant’s Minnesota conviction 14 clearly satisfies the requirements of § 2L1.2(b)(3)(A). It is unnecessary to engage in the 15 categorical approach because there is no ambiguity in § 2L1.2(b)(3)(A)’s description of 16 the predicate offense. 17 Finally, Defendant argues that his counsel was ineffective in light of his failure to 18 file a timely notice of appeal despite Defendant’s wish to do so. Assuming that failing to 19 file an appeal against the wishes of the client is unreasonably deficient performance, the 20 Court nonetheless finds that Defendant has failed to show any resulting prejudice. As 21 demonstrated by the discussion above, Defendant’s challenges to his conviction and 22 sentence lack substantive merit. As a result, an appeal on the grounds discussed in 23 Defendant’s § 2255 motion would not have succeeded. Without demonstrating how any 24 appeal would have altered his conviction or sentence, Defendant cannot make out an IAC 25 26 27 28 Defendant repeatedly refers to an “amendment” to his offenses. (See ECF No. 38 at 14–15.) The Court is unsure to what Defendant is referring. If he is referring to the amended nature of the PSR, as stated above, this was the result of applying a new version of the USSG. 5 12 3:16-cr-00995-GPC 3:17-cv-00926-GPC 1 claim. 2 IV. Conclusion 3 For the reasons stated above, Defendant has waived his right to collaterally attack 4 his sentence under 18 U.S.C. § 2255. The evidence amply demonstrates that Defendant 5 knowingly and voluntarily waived that right. Defendant has also failed to demonstrate a 6 viable IAC claim. As a result, Defendant’s motion to vacate, correct, or set aside his 7 sentence is DENIED. 8 A Defendant may not appeal the denial of a § 2255 motion unless he first receives 9 a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B). “A certificate of appealability 10 may issue . . . only if the applicant has made a substantial showing of the denial of a 11 constitutional right.” Id. §2253(c)(2). “Where a district court has rejected the 12 constitutional claims on the merits, the showing required to satisfy § 2253(c) is 13 straightforward: The petitioner must demonstrate that reasonable jurists would find the 14 district court’s assessment of the constitutional claims debatable or wrong.” Slack v. 15 McDaniel, 529 U.S. 473, 484 (2000). In light of Defendant’s clear waiver of his right to 16 collaterally attack his sentence, as well as the lack of any substantive merit underlying the 17 arguments that have not been waived, the Court finds that reasonable jurists could not 18 debate whether Defendant is entitled to any relief. The Court therefore DENIES 19 Petitioner a certificate of appealability. 20 21 IT IS SO ORDERED. Dated: January 10, 2018 22 23 24 25 26 27 28 13 3:16-cr-00995-GPC 3:17-cv-00926-GPC

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