The opinion of the court was delivered by: Irma E. Gonzalez, Chief JudgeUnited States District Court
ORDER DENYING PETITIONER'S MOTION FOR REDUCTION OF SENTENCE
Petitioner Luis Alberto Cisneros-Heredia, appearing pro se, has filed a motion to reduce his sentence pursuant to 28 U.S.C. § 2255 and 28 U.S.C. § 3582. On December 8, 2008, the government filed an opposition, but petitioner failed to file a reply. After a review of the record and the parties' submissions, the Court DENIES petitioner's motion for the reasons set forth below.
On May 7, 2007, pursuant to a plea agreement, petitioner pled guilty to one misdemeanor count of illegal entry in violation of 8 U.S.C. § 1325 (count 1), and one felony count of Illegal Entry in violation of 8 U.S.C. § 1325 (count 2). In the plea agreement, petitioner acknowledged he had read the plea agreement, confirmed he had discussed the terms with defense counsel, and agreed he "fully understands its meaning and effect." (Resp. Opp., Ex.1 ¶ 15.) He stated he was "satisfied with the representation received," and requested immediate sentencing without the benefit of a presentence investigation and report. Id. at ¶¶ 9, 15. Petitioner also, "waive[d], to the full extent of the law, any right to appeal or to collaterally attack the guilty plea, conviction and sentence . . . ." Id. at ¶12.
At the change of plea hearing, the Court conducted the plea colloquy to ensure petitioner had discussed the plea agreement with counsel, understood the terms of the agreement, and was making the guilty plea knowingly and voluntarily. (Resp. Opp., Ex. 3 at 8.) Petitioner also confirmed he was waiving his right to appeal if he received a sentence of no more than 30 months. Id. at 9. The Court accepted petitioner's plea as knowing and voluntary. Id. at 13.
Petitioner filed the instant motion to reduce his sentence pursuant to 28 U.S.C. § 2255 and 28 U.S.C. § 3582 on October 22, 2008. The government filed its response on December 8, 2008.
Petitioner seeks a reduction of the sentence imposed based upon (1) violations of the Equal Protection Clause of the Fourteenth Amendment; (2) a violation of the Due Process Clause of the Fifth Amendment; (3) and a violation of the "Equal Rights Act" of 1964. (Doc. No. 17.) Specifically, he contends a sentence reduction is necessary because, as an alien, he is ineligible for sentence reducing drug programs, half-way house programs, or UNICOR employment. Id.
The government argues petitioner waived his right to collaterally attack his sentence when he signed his plea agreement. Further the government argues petitioner's section 2255 is time-barred. Finally, the government argues petitioner's claims fail on the merits.
A knowing and voluntary waiver of a statutory right is enforceable. United States v. Navarro- Botello, 912 F.3d 318, 321 (9th Cir. 1990). The right to request collateral review under 28 U.S.C. §2255 is a statutory right that can be waived. United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993). Further, a 28 U.S.C. §3582 challenge may be waived by plea agreement. See Gutierrez v. United States, 2009 WL 311133, at *1-2 (S.D. Cal. February 9, 2009); United States v. Johnson, 2007 WL 4208313, at *1 (N.D. Cal. November 27, 2007). In the instant case, it is undisputed the plea agreement contained a waiver of collateral attack. See (Resp. Opp., Ex. 1 ¶ 12.)
A waiver of the right to appeal or collaterally attack a sentence must satisfy certain requirements to be valid. First, Rule 11 of the Federal Rules of Criminal Procedure requires the Court conduct a specific inquiry, which is designed to ensure the waiver was knowing and voluntary.
Navaro-Botello, 912 F.2d at 320. Second, the waiver would not be valid if the Court imposed a sentence that either violates the agreement or the law. Id. Third, the waiver does not "categorically foreclose" a defendant from bringing an "ineffective assistance of ...