UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
October 15, 2009
LUIS FERNE OLAVE-VALENCIA, MOVANT,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE AND DENYING CERTIFICATE OF APPEALABILITY
Luis Ferne Olave-Valencia ("Defendant") has filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. For the reasons discussed below, Defendant's motion is DENIED.
In an Indictment filed on October 1, 2003, Defendant was charged with one count of conspiracy to possess cocaine with the intent to distribute on board a vessel in violation of 46 App. U.S.C. § 1903(a), (c), and (j)*fn1, one count of possession of cocaine with intent to distribute on board a vessel in violation of 46 App. U.S.C. § 1903(a), (c)(1)(A), and (f), and aiding and abetting in violation of 18 U.S.C. § 2. He was convicted by jury trial on May 27, 2004.
On July 25, 2005, Defendant was sentenced to 180 months in prison on both counts to run concurrently and a five year terms of supervised release, also to run concurrently.
On August 8, 2005, Defendant filed a Notice of Appeal [Docket No. 210]. On direct appeal, Olave-Valencia argued that (1) the district court erred when it concluded that it had jurisdiction over the defendants; (2) the district court erred by not requiring the jury to return a unanimous verdict as to all elements of the offense; (3) the district court erred when it focused on the sophistication of the criminal enterprise in determining that a minor role reduction was not appropriate; and (4) the 180 month custodial sentence imposed was illegal and subject to reversal because the district court failed to apply all the factors under 18 U.S.C. § 3553(a) and placed undue weight on the Sentencing Guidelines. (Gov.'s Res., Ex. E.)
On July 26, 2007, the Ninth Circuit Court of Appeals filed an opinion affirming the Court's decision [Docket No. 266].
Defendant bases his motion to set aside or reduce his sentence on three grounds. First, Defendant claims that the Court failed to properly submit the element of statutory jurisdiction to the jury. Second, Defendant argues that his conviction resulted from the violation of his privilege against self-incrimination. Third, Defendant contends that his sentence is illegal since it exceeds the ten year mandatory minimum sentence and because the Court failed to grant Defendant a minor role reduction.
A. Statutory Jurisdiction
Defendant contends that his conviction was obtained by unconstitutional search and seizure. The argument is not premised on a Fourth Amendment violation, but rather on a contention that the Coast Guard and the United States had no jurisdiction to stop, seize and prosecute Defendant.
The Government argues that Defendant may not collaterally attack the issue of the district court's submission of jurisdiction to the jury because he already raised the same claim on his direct appeal to the Ninth Circuit Court of Appeals. The Court agrees.
As the Government notes, "[i]ssues raised at trial and considered on direct appeal are not subject to collateral attack under 28 U.S.C. § 2255." Egger v. United States, 509 F. 2d 745, 748 (9th Cir. 1975). Defendant raised the jurisdiction contentions of his Section 2255 motion on his direct appeal. In his opening brief before the Ninth Circuit Court of Appeals, Defendant argued that (1) the district court erred when it concluded that it had jurisdiction over the Defendants; and (2) the district court erred by not requiring the jury to return a unanimous verdict as to all elements of the offense. (Gov.'s Res., Ex. E.) The Court of Appeals rejected both of Defendant's jurisdictional arguments on direct appeal. The Ninth Circuit held that "[t]he district court did not fail to submit to the jury the question of whether the 'go-fast vessel' was 'without nationality' as required by United States v. Perlaza, 439 F.3d 1149 (9th Cir. 2006)." United States v. Mosquera, 2007 WL 214535, *1 (9th Cir. July 26, 2007). Additionally, the Court of Appeals found that "[t]he district court did not violate the requirement that a jury make a unanimous finding as to jurisdiction." Id. Thus, Defendant already brought before the Court of Appeals the same jurisdictional issues he raises in his Section 2255 motion. The Court of Appeals clearly rejected Defendant's arguments. These issues are no longer subject to collateral attack under Section 2255.
Defendant next contends that his conviction was obtained in violation of his Fifth Amendment privilege against self-incrimination. Olave-Valencia does not identify any statements introduced by the Government during trial that led to his conviction. In fact, the Government claims, and Olave-Valencia does not refute, that it did not introduce any inculpatory statements he made during the trial. Where the confession of a defendant is not used against him at trial, the voluntariness of the confession is irrelevant on a 2255 motion. See Vicory v. Taylor, 338 F.2d 954, 956 (10th Cir. 1964) (per curiam). Defendant has not adequately demonstrated why the Court should vacate, set aside, or correct his sentence on the basis of unconstitutional self-incrimination.
Finally, Olave-Valencia charges that the Court imposed an illegal sentence because the indictment limited the sentence to a ten year mandatory minimum and the Court improperly denied the Defendant a minor role reduction. The Court sentenced the Defendant to 180 months imprisonment.
The indictment charged the Defendant under 46 App. U.S.C. § 1903. Section 1903 provided that a first-time offender under Section 1903 should be "punished in accordance with the penalties set forth in section 1012 of the Comprehensive Drug Abuse Prevention and Control Act of 1970." 46 App. U.S.C. § 1903(g)(1). In turn, the latter law directed that, in the case of a violation involving five kilograms or more of cocaine, "the person committing such violation shall be sentenced to a term of imprisonment of not less than 10 years and not more than life." 21 U.S.C. § 960(a) (emphasis added). The indictment charged the Defendant with possessing with the intent to distribute and conspiring to possess with the intent to distribute, more than five kilograms of cocaine. Thus the Court's sentence of 180 months (fifteen years) was within the legal sentence range.
The Defendant's contention that the Court improperly denied the Defendant a minor role reduction is not subject to collateral attack because the Court of Appeals also considered this issue on direct appeal. See Egger, 509 F. 2d at 748. The Court of Appeals clearly held:
[t]he district court did not clearly err in denying minor role adjustments sought by the defendants. The district court properly found that persons assisting in the transportation of a large quantity of cocaine, especially by sea, generally do not play a minor role. Mosquera, 2007 WL 2141535, at *1 (citing United States v. Zakharov, 468 F.3d 1171, 1181 (9th Cir. 2006)).
Thus, the Defendant may not raise the issue of whether the Court should have granted him a minor role reduction in his Section 2255 motion.
For the reasons explained above, the Defendant's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 is DENIED. The Court finds no basis for the issuance of a certificate of appealability. Therefore, a certificate of appealability is DENIED as to all claims.
IT IS SO ORDERED.