IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
June 16, 2009
UNITED STATES OF AMERICA, RESPONDENT,
JOSE MANUEL YANEZ, MOVANT.
FINDINGS AND RECOMMENDATIONS
Movant, a federal prisoner proceeding pro se, has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. On February 25, 2008, movant pled guilty to violating 8 U.S.C. § 1326(a) and (b)(2) - Deported Alien with an Aggravated Felony Prior Found in the United States. Movant was sentenced to a 46-month term of imprisonment, a 36-month term of supervised release, a $100 special assessment and no fine. (Docket 11.)
Movant seeks a further reduction of his sentence.*fn1 On February 23, 2009, respondent filed a motion to dismiss the § 2255 motion because movant waived the right to file a § motion in his plea agreement. Movant has not opposed the motion.
A defendant may waive the right to bring a § 2255 motion. United States v. Abarca, 985 F.2d 1012, 1013 (9th Cir. 1993). A "knowing and voluntary waiver of a statutory right is enforceable." Id., 985 F.2d at 1014.
On February 25, 2008, the written plea agreement was filed. (Docket No. 12.) The agreement specifically provided that movant freely, knowingly, and voluntarily [gave] up the right to appeal any aspect of his conviction or sentence. The [movant] also [gave] up any right he may have to bring a post-conviction attack on any aspect of his conviction or sentence. He specifically agree[d] not to file a motion under 28 U.S.C. § 2255 or § 2241 attacking any aspect of his conviction or sentence. (Plea Agreement at 3-4, ¶ 5.) Moreover, the transcript from the change of plea hearing reflects that movant knowingly and voluntarily entered into the plea agreement. (Docket No. 25.) The sentencing judge carefully explained that by entering the guilty plea movant may have waived or given up certain rights to appeal or collaterally attack the plea or the sentence, and movant confirmed he understood. (Id. at 9.) Movant was informed that in all likelihood he would be deported upon completion of his sentence. (Id. at 6.) In exchange for his plea bargain, movant was granted a four-level Fast-Track reduction at sentencing.
IT IS HEREBY RECOMMENDED that: 1. Movant's February 23, 2009 motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 be denied; and
2. The clerk of the court be directed to close the companion civil case No. 08-cv-2847 FCD JFM.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The parties are advised that failure to file objections within the specified time waives the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).