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Jose Cano-Valencia v. United States of America

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


August 3, 2011

JOSE CANO-VALENCIA,
PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.

The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge

ORDER DENYING MOTION FOR SENTENCING REDUCTION

On June 13, 2008, Petitioner pleaded guilty to possession of over 500 grams of methamphetamine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1) subject to a plea agreement. (Opp. at Ex. 1 at 2-3.) On September 3, 2008, this Court sentenced Petitioner to 57 months custody followed by three years of supervised release. (Id. at Ex. 3.) On April 20, 2011, Petitioner filed the instant motion for a sentencing reduction pursuant to 18 U.S.C. § 3582(c)(2).

Petitioner seeks a reduction in his sentence based upon a claim that he is entitled to the application of a subsequent amendment to the sentencing guidelines that reduced his sentencing range. See 18 U.S.C. § 3582(c)(2). Defendant's motion is denied because he has failed to demonstrate that his sentence is based on a sentencing range that has subsequently been lowered by the Sentencing Commission. Petitioner does not identify a specific amendment to the United States Sentencing Guidelines that has impacted his sentencing range and the two cases he cites in his motion, United States v. Leniear, 574 F.3d 668 (9th Cir. 2009) and United States v. Paulk, 569 F.3d 1094 (9th Cir. 2009), address amendments to the base offense level for offenses involving cocaine.

In the alternative, liberally construing Petitioner's application as a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, it is also denied because, when Petitioner pleaded guilty in exchange for a lower sentence, which was actually imposed, he waived his right to collaterally attack his sentence. (Id. at Ex. 1 at 9.) Such a waiver bars relief under § 2255 other than for ineffective assistance of counsel claims that challenge the voluntariness of the waiver. See United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993).

IT IS SO ORDERED.

20110803

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