Opinion
Case Nos. 2:04CV1111 JTG, 2:00CR72 JTG.
March 15, 2005
MEMORANDUM DECISION AND ORDER
This matter is before the Court on Guillermo Mora-Aguirre's Motion to Modify Sentence under 28 U.S.C. § 2255 (2005). The Court has reviewed the filings and records related to this appeal and has concluded that oral argument would be of no material assistance, and that this matter may be decided on the record before the Court.
REVIEW OF PETITION I. Procedural History
On September 14, 2000 Guillermo Mora-Aguirre pled guilty to one count of possession of methamphetamine with intent to distribute under 18 U.S.C. § 841(a)(1) and 841(b)(1)(C) and two counts of illegal reentry of a deported alien under 8 U.S.C. § 1326. In the presentence report, the probation officer set defendant's total offense level at a 29, and his criminal history category at VI. Based on these figures, defendant's guideline range was 151 to 188 months imprisonment. The report further stated that defendant was not eligible for any downward departures.
At sentencing on November 29, 2000, this Court granted the government's motion for an 8 level downward departure based on defendant's cooperation with law enforcement officials, which put defendant's offense level at 21. This Court sentenced defendant to a term of 77 months (the minimum for his offense level). On December 7, 2004, four years into defendant's sentence, defendant filed this § 2255 Motion, alleging that he was improperly subjected to a 16 level sentencing enhancement, and that the sentenced imposed by the Court violated his Fifth and Sixth Amendment Rights under the United States Constitution.
Although defendant claims he was illegally subject to a 16 level sentencing enhancement, he does not specifically identify or discuss the enhancements in question. The Court approved the enhancements set forth in the presentence report as follows: a four level enhancement for being a career offender pursuant to U.S.S.G. § 4B1.1; two points because defendant committed the offense charged in the case at bar while on probation; a two point increase in the offense level as a result of grouping the two counts; and finally, defendant's base level for his deportation count was increased by 8 points because the defendant previously was deported after a criminal conviction for an aggravated felony. Defendant was also given a three level reduction for acceptance of responsibility.
A. Defendant's § 2255 claim is barred for being untimely.
Defendant's appeal is not within the statute of limitations for filling a § 2255 appeal, and no exception applies to his case. 28 U.S.C. § 2255 (2004). A one year period of limitation applies to any claims for relief under the statute from the latest of four dates. The only applicable date is "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized and made retroactively applicable to cases on collateral review." Id. The issue then becomes whether the Supreme Court in Booker asserted a newly recognized right made applicable to cases on collateral review.
In Leonard, the defendant filed a § 2255 motion arguing that his sentence was improperly enhanced under the Federal Sentencing Guidelines and the Supreme Court's opinion in Blakely v. Washington, 124 S.Ct. 2531 (2004). Leonard v. United States, 383 F.3d 1146 (10th Cir. 2004). The Tenth Circuit Court of Appeals held that a new rule established by the Supreme Court is not made retroactive on collateral review unless the Supreme Court specifically holds it to be retroactive. Id. at 1147. The court in Leonard found that because the Supreme Court did not expressly declare Blakely to be retroactive, defendant's motion was barred by the statute of limitations and the matter was dismissed. Id. at 1148. Similarly, in Browning, the court declined to authorize second or successive habeas motions by retroactively applying Apprendi. Browning v. United States, 241 F.3d 1262, 1267 (10th Cir. 2001); see also Apprendi v. New Jersey, 530 U.S. 466 (2000). The Browning court noted that the Supreme Court had not specifically declared Apprendi to apply retroactively and that Apprendi would not be applicable to collateral review until the Supreme Court expressed such an intent. Id. at 1267; see also United States v. Mora, 293 F.3d 1213, 1218 (10th Cir. 2002) (holding that the rule announced in Apprendi is not a watershed decision and thus not retroactively applicable to initial habeas petitions).
Although Tenth Circuit courts have found that Blakely and Apprendi do not apply retroactively, this does not end the analysis. Booker is the newest case in the Apprendi progeny, and the only case that applies to the direct application of the federal sentencing guidelines. United States v. Booker, 125 S.Ct. 738, 769. In Booker, the Court specifically stated that its holding should be applied " to all cases pending on direct review" or not yet final. Id. (emphasis added). Thus, the Court did not apply Booker retroactively to cases on collateral appeal. Accordingly, because defendant's case is final and not pending on direct review, Booker does not authorize relief to defendant under § 2255. Accordingly, defendant's motion is untimely and should be denied for that reason. Additionally, however, defendant's petition should be denied for another reason.
B. Defendant validly waived his right to raise a § 2255 appeal, thereby precluding this Court from adjudicating his claim.
During the time of defendant's plea agreement, defendant waived his right to collaterally attack his sentence under § 2255. Defendant's plea agreement specifically states:
7. I know that there is no appellate review of any lawful sentence imposed under a plea of guilty. . . . (d) I also knowingly, voluntarily and expressly waive my right to challenge my conviction and/or sentence, and the manner in which the sentence is determined, in any collateral review motion, writ or other procedure, including but not limited to a motion brought under 28 U.S.C. § 2255.
(Def. plea at 5). "[A] waiver of collateral attack rights brought under § 2255 is generally enforceable where the waiver is expressly stated in the plea agreement and where both the plea and the waiver were knowingly and voluntarily made." United States v. Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001). In reviewing appeals brought after a defendant has entered into an appeal waiver, the court should determine: (1) whether the disputed appeal falls within the scope of the waiver of appellate rights; (2) whether the defendant knowingly and voluntarily waived his appellate rights; and (3) whether enforcing the waiver would result in a miscarriage of justice. United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004).
1. The disputed appeal falls within the scope of the defendant's waiver of rights.
The first prong requires the court to determine whether the disputed appeal falls within the scope of defendant's appellate waiver. Id. ( quoting United States v. Andis, 33 F.3d 886, 890 (8th Cir. 2003)). "In determining a waiver's scope, [the court] will strictly construe appeal waivers and any ambiguities in these agreements will be read against the Government and in favor of a defendant's appellate rights." Id. ( quoting Andis, 33 F. 3d at 890). In this case, defendant specifically waived his right to collateral review under § 2255. Defendant's appeal is expressly under § 2255 and therefore defendant's appeal falls within the scope of the right's defendant waived and the first prong for determining a valid waiver has been satisfied.
2. Defendant knowingly and voluntarily waived his appellate rights.
When determining whether a waiver of appellate rights is knowing and voluntary, the court looks to two factors. First, the court examines whether the language of the plea agreement states that the defendant entered the agreement knowingly and voluntarily. Id. at 1325. Second, if the court is not satisfied from the language in the plea agreement, the court can look for an adequate Federal Rule of Criminal Procedure 11 colloquy ensuring defendant waived his rights knowingly and voluntarily. Id. In the case at bar, the plea agreement contained language indicating that defendant entered the agreement knowingly and voluntarily. This Court also discussed the plea with defendant and ensured that defendant's plea was knowing and voluntary, and no argument has been made by defendant to the contrary. Therefore, the second prong of the valid waiver requirement has been satisfied.
No threats or promises of any sort have been made to me to induce me or to persuade me to enter this plea.
No one has told me that I would receive probation or any other form of leniency because of my plea.
I have discussed this case and this plea with my lawyer as much as I wish to.
I am satisfied with my lawyer.
My decision to enter this plea was made after full and careful thought, with the advice of counsel, and with full understanding of my rights, the facts and circumstances of the case and the consequences of the plea.
I was not under the influence of any drugs, medication or intoxicants when the decision to enter the plea was made and I am not now under the influence of any drugs, medication or intoxicants.
I have no mental reservations concerning the plea.
I know that I am free to change or delete anything contained in this statement. I wish to make no changes because all of the statements are correct. (Def. Plea at 7-8).
3. Enforcing the waiver does not result in a miscarriage of justice.
If a plea agreement explicitly states that a defendant is waiving a particular right, the court will hold him to that waiver, barring certain exceptions. United States v. Chavez-Salais, 337 F.3d 1170, 1173 (10th Cir. 2003). These exceptions include: "[1] where the district court relied on an impermissible factor such as race, [2] where ineffective assistance of counsel in connection with the negotiation of the waiver renders the waiver invalid, [3] where the sentence exceeds the statutory maximum, or [4] where the waiver is otherwise invalid." Hahn, 359 F.3d at 1327 (citing United States v. Elliott, 264 F.3d 1171, 1173 (10th Cir. 1998)). In this case, the enforcement of the waiver would not result in a miscarriage of justice because no impermissible factor such as race was used when accepting the plea. Defendant has not raised an ineffective assistance of counsel claim, and defendant's sentence does not exceed the statutory maximum for the offense. For the foregoing reasons, defendant's waiver of his right to appeal his sentence under § 2255 is upheld. Thus, defendant has no § 2255 appellate rights and further discussion on the merits is not warranted.
Based upon the foregoing, it is hereby
ORDERED that defendant Mora-Aguirre's petition for reduction of sentence under 28 U.S.C. § 2255 is DENIED.