The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER DISMISSING WITH PREJUDICE PETITIONER'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE OR CORRECT SENTENCE
On August 17, 2007, Petitioner Nicolas Becerra ("Petitioner") filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct sentence. Respondent has filed a response and opposition, and Petitioner filed a reply. The Court has reviewed the record, the submissions of the parties, and the supporting exhibits and, for the reasons set forth below, will DISMISS Petitioner's motion.
On July 7, 2006, with Federal Defenders' Stephen D. Demik's assistance as his counsel, Petitioner signed a plea agreement with the United States Attorney for the Southern District of California.*fn1 Under the terms of the plea agreement, Petitioner agreed to waive any right to appeal, to collaterally attack his conviction and sentence, unless the Court imposed a custodial sentence greater than the high end of the guideline range recommended by the Government pursuant to the agreement.
On July 20, 2006, Magistrate Judge Anthony J. Battaglia conducted a Rule 11 of the Federal of Criminal Procedure hearing and accepted Petitioner's guilty plea. Petitioner personally acknowledged that he faced a maximum sentence of twenty years in prison, one million dollars in and three years of supervised release. Through an interpreter, he further acknowledged that district court would impose a sentence after considering the advisory United States Sentencing delines ("Guidelines") and that his attorney had explained how the Guidelines might apply to Turning to the plea agreement, Magistrate Judge Battaglia inquired whether Petitioner had signed and initialed the plea agreement after receiving a word-for-word Spanish translation, to ich Petitioner answered affirmatively.
After ensuring Petitioner had no questions about the agreement's contents, Magistrate Judge Battaglia asked about the waiver provision. This colloquy ensued:
THE COURT: All right. Now, there is a provision in each of the agreements that we need to discuss here in court so I'm clear you have no questions about that in particular. It is the provision that talks about the waiver of appeal and collateral attack rights that you have. Now, when we talk about appeal, we are referring to the right that you have to take your case to a higher court and ask for help because you think an error was made in how your case was handled here in the District Court. So do each of you understand that's what we're talking about when we say appeal? . . .
THE INTERPRETER: Yes as to both.*fn2
THE COURT: And collateral attack means the ability you would have or the right you would have to challenge the fact of your conviction or sentence from this case if either becomes an issue in some other legal matter, whether that's a criminal case, a civil case, an immigration hearing, an administrative hearing, something like that. Do all of you understand that concept as I've explained it? . . .
THE INTERPRETER: Yes as to both.
THE COURT: And from what you've agreed to in your plea agreements, you are each waiving those rights in your case, unless the court imposes a custodial sentence greater than the high end of the guideline range . . . that is recommended by the Government pursuant to the plea agreement at the time of sentencing. Do each of you understand that? . . .
THE INTERPRETER: Yes as to both.
THE COURT: Do any of you have any questions about that ...