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 ...