Opinion
No. 1:17-cr-0124-NONE-SKO-1
04-22-2021
UNITED STATES OF AMERICA, Plaintiff, v. JOSUE MERCADO-REYES, Defendant.
ORDER DENYING MOTIONS TO REDUCE SENTENCE UNDER 28 U.S.C. § 2255
(Doc. Nos. 37, 41)
On June 5, 2017, defendant Josue Lopez-Ramirez entered a plea of guilty to being a deported alien found in the United States in violation of 8 U.S.C. § 1326(a). (Doc. Nos. 14, 19.) The parties agreed to resolution of the case based upon the district's Fast-Track Immigration Prosecution Program including sentencing based upon pre-plea presentence report and the parties jointly recommended a four level downward adjustment under U.S. Sentencing Guideline (U.S.S.G.) § 5K3.1 and a sentence of a 51-month term of imprisonment, the low end of the parties' agreed upon guideline calculation. (Doc. Nos. 14, 17.) Nonetheless, on June 12, 2017, the sentencing judge declined to follow the parties' recommended four level downward adjustment, determined the defendant's offense level to be 21, his criminal history category to be VI under the USSG, and sentenced him to a 77-month term of imprisonment, the low end of the guideline range as calculated by the court. (Doc. Nos. 11, 19 and 20.) Thereafter, defendant appealed, challenging his 77-month sentence (Doc. No.) and the Ninth Circuit dismissed that appeal concluding that defendant's sentence was not illegal and thus his appeal was barred by the valid appeal waiver contained in his plea agreement. (Doc. No. 35.) Invoking 28 U.S.C. § 2255, defendant has moved for relief, collaterally attacking his 77-month sentence on two grounds. (Doc. Nos. 37, 41.)
As part of his plea agreement, defendant waived both his right to appeal and to collaterally attack, by way of § 2255 motion, any aspect of his guilty plea, conviction or sentence. (Doc. No. 14 at 8-9.)
It appears that the sentencing judge was, in part, influenced by defendant's four prior convictions (in 2005, 2008, and twice in 2016) for possession and transportation of controlled substances for sale, as well as his 2009 conviction for being a deported alien found in the United States upon which he had received a fast track downward adjustment but had thereafter again re-entered the United States illegally. (Doc. Nos. 11 ¶¶ 22-26, 37.)
First, defendant argues that his 2005 conviction in state court for possession for sale of methamphetamine in violation of California Health and Safety Code § 11378, is not a "drug trafficking offense" under U.S.S.G. § 2L1.2 and that the sixteen-level increase to the calculation of his base offense at sentencing was improper. (Doc. No. 37 at 1.) Notably, defendant previously raised this exact issue on an appeal of his sentence (Appellant's Opening Brief, United States v. Mercado-Reyes, 765 F. App'x 352 (9th Cir. 2019) (No. 18-10249), 2018 WL 6738754 at *19-22). However, the Ninth Circuit rejected the argument because of his appeal waiver specified in his plea agreement, and dismissed his appeal. Mercado-Reyes, 765 F. App'x 352.
Second, defendant argues that because two of his previous convictions in state court were vacated in January 2020, his current sentence should now be reduced based on a reduced criminal history category. (Doc. No. 41 ¶¶ 3, 6.) The government opposes defendant's motion in this regard, arguing that he waived his right to appeal or collaterally attack his sentence and that defendant's arguments are not legally cognizable. (Doc. No. 44 at 6-9.) The government's argument as to waiver is well-taken and defendant's § 2255 motion will be denied. /////
The court afforded defendant the opportunity to file a reply brief in support of his § 2255 motion within 30 days of April 8, 2020 (Doc. No. 46), but no reply was filed.
LEGAL STANDARD
Title 28 U.S.C. § 2255 allows a federal prisoner to move "to vacate, set aside or correct the sentence" on "the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255. "[A]n error of law does not provide a basis for collateral attack unless the claimed error constituted 'a fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Addonizio, 442 U.S. 178, 185 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). Rule 4(b) of the Rules Governing Section 2255 Cases provides that "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition."
ANALYSIS
A. Defendants' Motions Are Barred by the Terms of the Plea Agreement
Defendant Mercado-Reyes waived his right to collaterally attack his sentence under § 2255. As provided in the plea agreement, defendant has agreed "to give up the right to appeal" or "to bring a collateral attack, including a motion under 28 U.S.C. § 2255 or § 2241" on any aspect of the sentence. (Doc. No. 14 ¶ VII.B.) This waiver of rights is enforceable.
"A defendant's waiver of his rights to appeal and to bring a collateral attack is generally enforced if '(1) the language of the waiver encompasses his right to appeal on the grounds raised, and (2) the waiver is knowingly and voluntarily made.'" Davies v. Benov, 856 F.3d 1243, 1246-47 (9th Cir. 2017) (quoting United States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005)). Such waiver is enforceable even though the defendant "may not know the specific detailed consequences of invoking it," United States v. Ruiz, 536 U.S. 622, 629-30 (2002), may "not be aware of possible grounds of appeal" or "the severity of the sentence that will be imposed," United States v. Lo, 839 F.3d 777, 784 (9th Cir. 2016). At a change of plea hearing, "[a] district court is required to inform the defendant of 'the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence,'" and if the district court does so, the Ninth Circuit has held that such procedure is "sufficient to find a knowing and voluntary waiver." Id. (quoting Fed. R. Crim. P. 11(b)(1)(N); United States v. Watson, 582 F.3d 974, 987 (9th Cir. 2009)).
At defendant's June 5, 2017 change of plea hearing, the previously assigned district judge informed him of the terms of the appeal and collateral attack waiver set forth in his plea agreement; defendant verbally stated he understood the terms of his waiver, had no questions about the terms, and agreed to the terms of the plea agreement. (See Doc. Nos. 14, Ex. A; 33 at 4:3-8:21.) Defendant also signed the written plea agreement containing that waiver. (Doc. No. 14.) This is sufficient to establish that defendant knowingly and voluntarily waived his right to collaterally attack his sentence under § 2255. See Lo, 839 F.3d at 784; see also Blackledge v. Allison, 431 U.S. 63, 73-74 (1977) (The representations of a defendant at a plea hearing constitutes "a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity."); United States v. Ross, 511 F.3d 1233, 1236-37 (9th Cir. 2008) ("Statements made by a defendant during a guilty plea hearing carry a strong presumption of veracity in subsequent proceedings attacking the plea."). Defendant does not contest the fact that his plea agreement was knowingly and voluntarily made. (Doc. Nos. 37, 41.) Based on the foregoing, the court finds, as the Ninth Circuit previously has, that defendant Mercado-Reyes's waiver in his plea agreement of the right to collaterally attack any part of his plea and sentence is enforceable.
The appeal and collateral attack waiver contained in defendant's plea agreement also specifically encompasses the claims presented in his pending § 2255 motions. As noted above, defendant argues here that: (1) his 2005 state conviction for possession for sale of methamphetamine is not a "drug trafficking offense" under U.S.S.G. § 2L1.2, so the sixteen-level increase to his base offense in the sentencing guideline calculation was improper (Doc. No. 37 at 1); and (2) that because two of his previous convictions in state court were subsequently vacated in January 2020, his current sentence should now be reduced because without those convictions his criminal history category would have been lower. (Doc. No. 41 ¶¶ 3, 6.) Both of these arguments are straightforward collateral attacks on defendant's sentence, which are barred by the terms of his plea agreement. See Laborin v. United States, No. 2:15-CR-00002-KJM-1, 2017 WL 3421826, at *2 (E.D. Cal. Aug. 9, 2017) (finding that similar waiver barred claims regarding how the defendant's prior convictions impacted the sentencing guideline range and the ultimate sentence imposed). Defendant does not raise any non-waivable claims in his pending motion, such as fraudulent inducement or ineffective assistance of counsel impacting his appellate and collateral attack waiver. See United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993); see also Washington v. Lampert, 422 F.3d 864, 869 (9th Cir. 2005) (upholding a petitioner's right to assert federal habeas claim where he alleged that his counsel used coercion, omissions, false promises and inaccurate predictions to induce his acceptance of the plea agreement). Accordingly, his pending § 2255 motion must be denied.
B. There is No Basis to Issue a Certificate of Appealability
"Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from ... the final order in a proceeding under section 2255." 28 U.S.C. § 2253(c)(1)(B). "A certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right." Id. § 2253(b)(2). "To satisfy this standard, the applicant must show that 'jurists of reason could disagree with the district court's resolution of his case or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.'" Mitchell v. United States, 971 F.3d 1081, 1083 (9th Cir. 2020) (quoting Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) ). This standard is not met here. The court therefore declines to issue a certificate of appealability.
CONCLUSION
For the reasons explained above:
1. Defendant's motion brought under 28 U.S.C. § 2255 (Doc. Nos. 37, 41) is denied;IT IS SO ORDERED.
2. The court declines to issue a certificate of appealability under 28 U.S.C. § 2253(c); and
3. The Clerk of Court is directed to assign a district judge to this case for the purpose of closing the case and then to close the case.
Dated: April 22 , 2021
/s/_________
UNITED STATES DISTRICT JUDGE