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Banegas-Aceituno v. United States

February 9, 2009

MARCO BANEGAS-ACEITUNO, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



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 January 29, 2009, Petitioner Marco Banegas-Aceituno ("Petitioner") filed a motion pursuant to 28 U.S.C. § 2255 to reduce his sentence. Petitioner essentially requests that this Court grant a downward departure of two points due to Petitioner's immigration removal status. The Court has reviewed the record in this case, which clearly establishes that on July 8, 2008, Petitioner waived both his right to appeal and to collaterally attack his conviction and sentence. Plea Agreement ¶ 12. Petitioner's motion raises no challenge to the validity of that waiver, therefore this Court lacks jurisdiction to consider any collateral challenge to his conviction and sentence. See Washington v. Lampert, 422 F.3d 864, 869-70 (9th Cir. 2005) (recognizing that if sentencing agreement's waiver of the right to file a federal habeas petition was valid, district court lacked jurisdiction to hear the case).

Accordingly, Petitioner's Motion for Reduction of Sentence Pursuant to 28 U.S.C. § 2255 DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.

20090209

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