The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER ON DEFENDANT'S 28 U.S.C. § 2255 PETITION TO VACATE, SET ASIDE OR CORRECT SENTENCE
Defendant Jose De Jesus Garcia-Gonzalez ("Mr. Garcia-Gonzalez") is a federal prisoner and proceeds pro se to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 ("section 2255"). This Court considered Mr. Garcia-Gonzalez's section 2255 petition on the record and denies his requested relief.
Mr. Garcia-Gonzalez entered into a February 24, 2009 Fed. R. Crim. P. 11(c) Memorandum of Plea Agreement ("plea agreement") by which he agreed voluntarily to plead guilty to being a deported alien found in the United States after removal, in violation of 8 U.S.C. §1326. In the plea agreement, Mr. Garcia-Gonzalez agreed that the factual basis of the offense was true, to wit: he is a native and citizen of Mexico; he was removed from the United States on November 2, 2007; after his removal, he re-entered the United States without permission of the United States Attorney General or the Secretary of the Department of Homeland Security; he was convicted of second degree robbery in violation of California Penal Code §211 on December 19, 1995 and was sentenced to two years imprisonment; and he was found in the Eastern District of California on September 9, 2008. Plea Agreement, pp. 6-7. The plea agreement provided Mr. Garcia-Gonzalez's knowing and voluntary waiver of his rights to appeal "his conviction and sentence...and to attack collaterally his mental competence and his plea, or his sentence, including but not limited to, filing a motion under 28 U.S.C. §2255." Plea Agreement, p.3.
Mr. Garcia-Gonzalez further agreed that if he: ever attempts to vacate his plea, dismiss the underlying charges, or reduce or set aside his sentence...the government shall have the following rights: (1) to prosecute the defendant on any count to which he pleaded guilty; (2) to reinstate any counts that may be dismissed under this agreement; and (3) to file any new charges that would otherwise be barred by this [plea] agreement.
The United States of America ("government") agreed to recommend a reduction in sentencing recommendation if Mr. Garcia-Gonzalez "clearly demonstrates acceptance of responsibility" and an additional four level reduction for agreement to an "'early disposition' of the case, under U.S.S.G. 5K3.1, without a trial and without filing any pretrial motions or any objections to the presentence report...and if the defendant is sentenced the same day he pleads guilty." Plea Agreement, p. 6. The government also agreed to "recommend a sentence at the bottom of the applicable sentencing guideline range." Id. The plea agreement informed Mr. Garcia-Gonzalez that the maximum potential sentence is, among other things, twenty (20) years imprisonment and a $250,000 fine, but that the government agreed to recommend a term of imprisonment forty-six (46) months. Plea Agreement, pp. 6-7.
Change of Plea and Sentencing
The Court accepted the plea agreement at a February 27, 2009 hearing. At the hearing, Mr. Garcia-Gonzalez expressed that he had an opportunity to review the plea agreement with counsel, understood its, and agreed to its terms voluntarily. Mr. Garcia-Gonzalez further assented to waive his trial rights and his appellate rights.
Mr. Garcia-Gonzalez requested immediate sentencing, expressly waiving his right to time between the change of plea and sentencing. Mr. Garcia-Gonzalez acknowledged that he had an opportunity to review the presentence report with counsel. The Court considered the presentence report and acknowledged the guideline range of 70-87 months. The Court further considered the 3553(a) factors, the 5K3.1 issues, and the government's recommendation for a low end sentence of 46 months. The Court sentenced Mr. Garcia-Gonzalez ...