The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE, PURSUANT TO 28 U.S.C. § 2255
Pending before the court is defendant/petitioner Marvin Estuardo Rodas-Jacome's ("Petitioner") motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Petitioner, proceeding pro se, contends his sentence should be reduced by two points because he received ineffective assistance of counsel during sentencing, in violation of his Sixth Amendment rights. The government opposes the motion. After considering the parties' papers and the authorities cited therein, the court hereby DENIES the motion for the following reasons.
On July 13, 2005, Petitioner, pursuant to a written plea agreement, pleaded guilty to one count of importation of a controlled substance in violation of 21 U.S.C. §§ 952, 960. See Oppo., Ex. 4 (copy of plea agreement). The plea agreement provided that the crime to which Petitioner had pled guilty carried a mandatory minimum sentence of ten years. Id. at 4. The plea agreement further provided,
In exchange for the Government's concessions in this plea agreement, defendant waives, to the full extent of the law, any right to appeal or to collaterally attack the conviction and sentence, including any restitution order, unless the Court imposes a custodial sentence greater than the high end of the guideline range (or statutory mandatory minimum term, if applicable) recommended by the Government pursuant to this agreement at the time of sentencing.
Id. at 11. The plea agreement bears Petitioner's signature and indicates that it was read in Spanish to Petitioner by a federally certified interpreter. Id. at 13.
During the plea colloquy, Petitioner indicated that he understood he was giving up his right to appeal and that he otherwise understood the plea agreement in its entirety. Id., Ex. 6 at 4-6, 13. The court found that Petitioner had entered into the plea agreement voluntarily and intelligently. Id., Ex. 6 at 14. At sentencing, the court accepted the plea agreement, finding that Petitioner had discussed it with counsel, understood its terms in their entirety, and that Petitioner's guilty plea was knowingly, intelligently, and voluntarily made. Id., Ex. 7 at 2. The government then recommended a custodial sentence of forty-one months. Id. at 10. Taking into account Petitioner's lack of criminal history, the court ultimately sentenced Petitioner to thirty-seven months in prison, which was at the low end of the applicable sentencing range of thirty-seven to forty-six months. Oppo., Ex. 7 at 14-15, Ex. 8 (copy of judgment).
On July 24, 2006, Petitioner filed the present motion. Petitioner now argues that his sentence should be reduced by two points because his counsel "failed to argue that Defendant's ineligibility for minimum security confinement, drug program, and pre-release custody as a result of his status as a deportable alien constituted significant mitigating factors that should have been considered by the sentencing court." Mot. at 1. This failure, according to Petitioner, deprived Petitioner of his right to effective assistance of counsel under the Sixth Amendment and Strickland v. Washington, 466 U.S. 668, 686 (1984). Petitioner also argues that his sentence violates the Equal Protection Clause because the failure to depart downward based on his status as a deportable alien creates unconstitutional disparities in the sentences imposed on aliens versus non-aliens.
In response, the government contends that Petitioner waived his right to bring this motion pursuant to the plea agreement. In the alternative, the government argues that Petitioner has not shown that a downward departure is warranted since his counsel acted reasonably under the Strickland standard and that even if his counsel acted unreasonably, Petitioner suffered no prejudice as a result. Finally, according to the government, Petitioner has waived his Equal Protection Clause challenge by failing to raise it on direct appeal, and that in any event the sentencing distinctions here between aliens and non-aliens has a rational basis and is therefore constitutionally permissible.
Section 2255 provides in relevant part,
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.