IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
July 30, 2009
UNITED STATES OF AMERICA, PLAINTIFF,
BENJAMIN LOZANO ROSAS, DEFENDANT.
The opinion of the court was delivered by: Edward J. Garcia, Judge United States District Court
ORDER DENYING MOTION FOR REDUCTION OF SENTENCE; DENIAL OF CERTIFICATE OF APPEALABILITY
Defendant, a federal prisoner proceeding pro se, has filed a motion to reduce his sentence pursuant to 28 U.S.C. § 2255. After reviewing the record, the documents filed in connection with the motion and the applicable law, the court has determined the motion may be decided without an evidentiary hearing because the files and records of the case affirmatively show the factual and legal invalidity of defendant's arguments. Shah v. United States, 878 F.2d 1156, 1158-59 (9th Cir. 1989). For the reasons that follow, the motion is DENIED.
Defendant was convicted August 8, 2008 pursuant to his plea of guilty to one count of manufacturing at least 1000 marijuana plants, in violation of 21 U.S.C. § 841(a)(1). The plea agreement provided, among other things, that defendant waived his rights to appeal and collaterally attack his conviction and sentence. (Plea Agreement, 7:1-13, attached as exhibit A.) Defendant was sentenced October 17, 2008 to a term of 120 months incarceration and 60 months supervised release. Now, almost a year after his conviction and despite the express language of his plea agreement, defendant has filed the instant § 2255 motion seeking to reduce his sentence.
In his motion defendant argues he has been denied various reductions of sentence based on his status as an illegal alien. Specifically, defendant requests a two-point reduction or downward departure of his sentence and states that, in return, he will accept an order of final deportation.
Defendant's motion is barred by the terms of the plea agreement. First, he waived the right to collaterally attack his sentence pursuant to § 2255 as part of his plea agreement. Plea Agreement, 7:9-13. Defendant's waiver of his appellate rights is enforceable as long as the waiver encompasses the grounds raised in the challenge and is knowingly and voluntarily made. United States v. Joyce, 357 F.3d 921, 922-23 (9th Cir. 2004) (upholding waiver of appellate rights); United States v. DeJarnette, 63 Fed. Appx. 284 (9th Cir. 2003) (upholding waiver of appeal and collateral attack).
Here, defendant's waiver is broad and clearly encompasses the collateral attack set out in his § 2255 motion. Instead of providing a limited waiver, the language of the plea agreement contains a broad, all-encompassing waiver giving up "any right he may have to bring a post-appeal attack on his conviction or his sentence." Plea Agreement, 7:10-13 (emphasis added). Finally, defendant has not shown that his waiver was either involuntary or unknowing. The plea agreement is clear in its expression of the waiver and defendant cannot legitimately contend he did not know its meaning where the agreement bears his signature, and he was specifically questioned by the court about his understanding of the waiver during the plea colloquy.
Second, the plea agreement stated and the court orally advised defendant that the mandatory minimum term of incarceration for the offense to which he pled guilty is 120 months. Plea Agreement, 6:7-9. Third, as part of his plea agreement, defendant agreed not to seek or argue in support of any specific offense characteristic other than acceptance of responsibility, or move for or argue in support of any departure from the Sentencing Guidelines. Plea Agreement, 6:10-18.
For all of these reasons, defendant's motion to reduce his sentence pursuant to § 2255 of Title 28 of the United States Code is DENIED. The Clerk of Court is directed to close companion case CIV. NO. S-09-2073 EJG.
Certificate of Appealability
Pursuant to recent Ninth Circuit authority, the court addresses the issue of certificate of appealability as part of the ruling on the post-conviction motion. In a § 2255 proceeding, "an applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253( c )." Fed. R. App. P. 22(b). Such certification may issue "only if [defendant] has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of appealability indicating which issues satisfy the required showing or must state the reasons why such a certificate should not issue. Fed. R. App. P. 22(b)(1).
For all of the reasons stated above, defendant has not made a substantial showing of the denial of a constitutional right. A certificate of appealability will not issue.
IT IS SO ORDERED.
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