UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
February 6, 2009
VERONICA LIVIER GUTIERREZ, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: John A. Houston United States District Judge
ORDER DENYING MOTION TO MODIFY SENTENCE [DOC. # 34]
[18 U.S.C. § 3582]
Petitioner Veronica Livier Gutierrez ("petitioner"), appearing pro se, has filed a motion to modify her sentence pursuant to 18 U.S.C. § 3582. The motion has been fully briefed by the parties. After a thorough review of the record, the submissions of the parties along with supporting exhibits, and for the reasons set forth below, this Court hereby DENIES petitioner's motion.
On November 9, 2006, petitioner plead guilty, pursuant to a plea agreement, to a two count information charging petitioner with importation of cocaine in violation of Title 21, United States Code, Sections 952 and 960, and bulk cash smuggling in violation of Title 31, United States Code, Section 5332(a), before this Court. See Docs. # 11, 17, 19. On March 2, 2007, petitioner was sentenced to forty-one (41) months imprisonment. See Docs. # 26, 27. Petitioner filed the instant motion to modify her sentence pursuant to 18 U.S.C. § 3582*fn1 on June 16, 2008. Doc. # 34. Respondent filed its response on July 24, 2008. Doc. # 37. Petitioner did not file a traverse.
Petitioner, by way of the instant motion, seeks a reduction in the sentence imposed upon her. Respondent contends the instant motion should be dismissed because petitioner waived her right to appeal and to collaterally attack her conviction and sentence. In addition, respondent contends that the provisions of Section 3582 do not apply to petitioner.
As part of her plea agreement, petitioner waived both the right to appeal and the right to collaterally attack the conviction and sentence. See Doc. # 19 at 13. A knowing and voluntary waiver of a statutory right is enforceable. United States v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir. 1990). Petitioner's motion under Section 3582 is a collateral attack on her sentence and, thus, is barred by the terms of her plea agreement absent a challenge to the voluntariness of the plea. See United States v. Johnson, 2007 WL 4208313 *1 (N.D.Cal.); Morales v. United States, 2007 WL 2812182 *1 (S.D.Cal.).
The scope of a waiver of collateral attack may be subject to potential limitations. For example, a defendant's waiver will not bar an appeal if the trial court did not satisfy certain requirements under Rule 11 of the Federal Rules of Criminal Procedure to ensure that the waiver was knowingly and voluntarily made. Navarro-Botello, 912 F.2d at 321. Such a waiver might also be ineffective where the sentence imposed is not in accordance with the negotiated agreement, or if the sentence imposed violates the law. Id.; United States v. Littlefield, 105 F.3d 527, 528 (9th Cir. 1996). In addition, a waiver may be "unenforceable" and may not "categorically foreclose" a defendant from bringing collateral proceedings where a petitioner claims ineffective assistance of counsel challenging the voluntariness of the waiver. Washington v. Lampert, 422 F.3d 864, 871 (9th Cir. 2005); Abarca, 985 F.2d at 1014; see also United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1992).
Although petitioner presents no challenge to the voluntariness of her plea or waiver here, this Court has conducted an independent review of the record, and finds that the plea agreement, including the waiver of the right to appeal and collateral attack, was entered knowingly and voluntarily. It is undisputed that the plea agreement contains a waiver of collateral attack. The plea agreement explicitly states:
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 above the greater of the high end of the guideline range recommended by the Government pursuant to this agreement at the time of sentencing or statutory mandatory minimum term, if applicable.
Doc. # 19 at 13. The plea agreement also contains a provision certifying that petitioner read the agreement, discussed it with her attorney, and fully understood its meaning and effect. Id. at 14. Additionally, at the sentencing hearing, petitioner indicated that she waived her right to appeal or collaterally attack the conviction. See Doc. # 26; Doc. # 37-2, Exh. A at 6, 10-13, 18. This Court finds, based on a careful review of the record presented, that petitioner's guilty plea, which included a waiver of the right to collaterally attack her conviction and sentence, was entered knowingly and voluntarily.
Furthermore, the 41 month sentence imposed by the Court was in accordance with the plea agreement and does not violate the law. The plea agreement specifically stated petitioner waived her right to appeal or collaterally attack her sentence unless the Court imposed a sentence greater than the high end of the guideline range. Petitioner was sentenced to the low end of the guideline range, calculated as between 41 and 51 months. See Doc. # 37-2, Exh. C at 5. Lastly, petitioner does not present a challenge, in this motion, based on allegations that she was afforded ineffective assistance of counsel during plea negotiations that might affect the voluntariness of her waiver. See Lampert, 422 F.3d at 871. Thus, this Court finds that none of the recognized limitations to petitioner's waiver of the right to bring a collateral attack on her sentence are present in this case. Accordingly, the collateral attack waiver provision in petitioner's plea agreement will be enforced.
Even if petitioner's waiver did not foreclose the instant motion, this Court agrees with respondent that Section 3582 provides no authority for modification of petitioner's sentence. Section 3582 allows the Court to modify a sentence imposed under certain circumstances: (1) upon a motion by the Director of the Bureau of Prisons; (2) based on any reason permitted expressly by statute or Rule 35 of the Federal Rules of Criminal Procedure; or (3) when the sentence imposed has subsequently been lowered by the sentencing commission. 18 U.S.C. § 3582(c). Despite petitioner's claim that United States v. Booker, 125 S.Ct. 738 (2005), "effectively lowered petitioner's guideline range" from 96 to 63 months, this Court finds no support for this claim in the record or through its own independent research.*fn2 Therefore, petitioner's motion must be denied.
CONCLUSION AND ORDER
Based on the foregoing, IT IS HEREBY ORDERED that petitioner's motion to reduce her sentence [doc. # 34] is DENIED.