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Pastoriza-Valerio v. United States

January 9, 2009

JAIME PASTORIZA-VALERIO, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER DENYING § 2255 MOTION [Docket No. 39]

Petitioner Jaime Patoriza-Valerio filed with this court a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. The court summarily denies the motion without requiring a response from the United States because, by the express terms of the plea agreement, Petitioner waived his right to collaterally attack his conviction or sentence.

A. Background

Petitioner was represented by counsel throughout his criminal case. In December 2004, Petitioner was indicted on two counts: (1) knowingly and intentionally importing "500 grams and more of a mixture and substance containing a detectable amount of methamphetamine," and (2) knowingly and intentionally possessing the same with intent to distribute it. 21 U.S.C. §§ 841(a)(1), 952, & 960. Both crimes allegedly occurred in November 2004 and involved a quantity of 1.48 kilograms. He appeared before Magistrate Judge William McCurine, Jr., and entered a not guilty plea.

His attorney, Michael Messina, filed a discovery motion, which the court granted. The government offered Petitioner a plea with a base offense level of 34, which would have resulted in a sentence around 85 months, but Petitioner rejected the offer. See Tr. (Aug. 1, 2005) at 4, 7-8 (hereinafter "Sentencing Tr.").

In February 2005, the government filed a superceding indictment that alleged four counts. As to the two original November transactions, the superceding indictment changed the allegation regarding the narcotics by substituting an allegation of "50 grams and more of methamphetamine (actual)" for the 1.48 kilogram-mixture previously alleged. The two new charges included a conspiracy to distribute count involving "50 grams and more of methamphetamine (actual)" and another and earlier distribution count involving 1276 grams of the same narcotic in October 2004.

21 U.S.C. §§ 841(a)(1) & 846.

Following his arraignment on the superceding indictment, Petitioner substituted a new attorney, George Siddell. Unlike his prior court-appointed attorney, Siddell was retained.

Thereafter, Petitioner entered into a written plea agreement (which he initialed at the bottom of each page and signed along with his new attorney). The terms of the plea agreement provided that Petitioner would enter a guilty plea to Count 2, which involved the distribution of 1276 grams of methamphetamine on October 26, 2004; and in exchange, the government agreed to dismiss the three other counts. Plea Agreement at 1. As part of the factual basis, Petitioner further admitted that he had possessed 1196 grams of methamphetamine on November 18, 2004 and that he intended to deliver that amount to another person. Id. at 2. Although Count 2 carried a mandatory minimum sentence of 10 years, the government agreed to recommend a base offense level of 38; a 2-level safety value reduction -- which then allowed Petitioner to request a sentence below the mandatory minimum; and a 3 level adjustment for acceptance of responsibility. Id. at 2 & 5. Petitioner agreed not to seek any other sentencing adjustments; however, he retained the right to request downward departures that could further reduce his sentence. Id. at 7. The written agreement contained this provision regarding the length of custody:

The parties agree that the Government will recommend that defendant be sentenced to the low end of the advisory guideline range found by the Court, unless the Defendant's Guideline range is below 10 years and the sentence is limited by the 10-year minimum mandatory sentence pursuant to 21 U.S.C. § 841, in which case the Government will recommend the mandatory minimum sentence be imposed. If the Court adopts an offense level or downward adjustment or departure below the Government's recommendations in this Agreement, the Government will recommend a sentence as near as possible to what the sentence would have been if the Government's recommendations had been followed.

Id. at 8. The Plea Agreement further provided this provision, which is critical to the § 2255 motion:

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 plea agreement at the time of sentencing. If the custodial sentence is greater than the high end of that range, defendant may appeal, but the Government will be free to support on appeal the sentence actually imposed.

Id. (emphasis added).

Magistrate Judge McCurrine, upon Petitioner's consent, presided over the change of plea hearing. During that hearing, Petitioner confirmed that he had discussed the plea agreement with counsel and he admitted the truth of the facts concerning his intent to distribute 1276 grams of methamphetamine in October and, for purposes of relevant conduct, the additional 1196 grams in November. Tr. (May 10, 2005) at 4, 7-8 (hereinafter "Plea Tr.") When specifically asked, Petitioner agreed that the plea agreement waived his right to bring a collateral attack to challenge the validity of his conviction or sentence. Id. at 13-15. Petitioner assured the court that his attorney had explained the terms of the plea agreement to Petitioner in Spanish, and then with an interpreter to answer his specific questions. Id. at 16-17; see id. at 20. Magistrate Judge ...


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