UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
August 23, 2011
UNITED STATES OF AMERICA,
MARCO ANTONIO CABALLERO, DEFENDANT.
The opinion of the court was delivered by: Hayes, Judge:
The matter before the Court is the motion for time reduction by an inmate in federal custody under 28 U.S.C. § 2255. (ECF No. 39). Defendant moves the court to modify his sentence on the grounds that he cannot be housed in a minimum security facility or community corrections center based upon his deportation status. The Court finds that the issues raised in the petition are appropriate for summary disposition.
28 U.S.C. §2255 provides that "A prisoner under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence." A district court must summarily dismiss a § 2255 application "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief." Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District courts. When this standard is satisfied, neither a hearing nor a response from the government is required. See Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985).
RULING OF THE COURT
In this case, the record conclusively shows that the Defendant has waived his right to bring a motion for reduction of his sentence under § 2255 in the plea agreement. The plea agreement stated in relevant part as follows:
In exchange for the Government's concessions in this plea agreement,
defendant waives, to the full extent of the law, any right to appeal
or to collaterally attack the guilty plea, conviction and sentence,
including any restitution order, unless the Court imposes a custodial
sentence above the greater of the high end of the guideline range
recommended by the Government pursuant to this plea agreement at the
time of the sentencing or the statutory mandatory minimum term, if
applicable. If the custodial sentence is greater than the high end of
that range, the defendant may appeal, but the Government will be free
to support on appeal the sentence actually imposed. If the defendant
believes the Government's recommendation is not in accord with this
agreement, defendant will object at the time of sentencing; otherwise
the objection will be deemed waived. If defendant breaches this plea
agreement, at any time, by appealing or collaterally attacking the
conviction or sentence, in any way, the Government may prosecute
defendant for any counts, including those with mandatory minimum
sentence, dismissed or not charged pursuant to this plea agreement.
Additionally, the Government may use any factual admissions made by
defendant pursuant to this plea agreement in any prosecution." (ECF
No. 28 at 3.) Plea agreements are contractual in nature, and their
plain language will generally be enforced if the agreement is clear
and unambiguous on its face. United States v. Jeronimo, 298 F.3d 1149,
1153 (9th Cir. 2005). A defendant may waive the statutory right to
file a § 2255 petition challenging the length of his sentence. See
United States v. Abarca, 985
F.2d 1012, 1014 (9th Cir.) cert. denied, 508 U.S. 979 (1993).
Defendant's waiver of collateral attack upon the sentence is clear,
express and unequivocal. Defendant waived his right to collaterally
attack his sentence in a 2255 proceeding, unless the Court imposes a
custodial sentence above the greater of the high end of the guideline
range recommended by the Government pursuant to this plea agreement at
the time of the sentencing or the statutory mandatory minimum term, if
applicable. Defendant received a sentence of 30 months which
is not above the high end of the guideline range recommended by the
Government pursuant to this plea agreement at the time of the
sentencing (37-46 months). There is no statutory mandatory minimum
term applicable in this case. Therefore, the Defendant waived his
right to collaterally attack the sentence in the plea
Even if there was no waiver of collateral attack, the Court of Appeals for the Ninth Circuit has rejected the assertion that an alien's equal protection rights are violated when he cannot be housed in a minimum security facility or a community correction center based upon his deportation status. See McClean v. Crabtree, 173 F.3d 1176, 1185-86 (9th Cir. 1999). The Court concludes that "it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief." Rule 4(b), Rules Governing Section 2255 Proceedings.
IT IS HEREBY ORDERED that the Motion for time reduction by an inmate in federal custody under 28 U.S.C. § 2255 (ECF No. 39) filed by Defendant is denied.
United States District Judge WILLIAM Q. HAYES
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