The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
1) DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE, ) OR CORRECT
SENTENCE UNDER 28 U.S.C. § 2255; and
2) DENYING CERTIFICATE OF APPEALABILITY
Currently pending before the Court is Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. The Court has reviewed the record in this case and, for the reasons set forth below, will deny Petitioner's motion.
Petitioner Ramon Guadalupe Soberanes-Fierro was charged in a single-count information with importation of cocaine weighing 5 kilograms or more in violation of 21 U.S.C. §§ 952 and 960. On May 22, 2008, Petitioner entered a plea agreement and pled guilty to the information.*fn1
The plea agreement recognized that Petitioner was subject to a mandatory minimum sentence, but recommended a safety valve departure, if applicable. On December 3, 2011, an evidentiary hearing was held with respect to Petitioner's safety valve eligibility. This Court determined that Petitioner failed to make a showing that he provided the Government with complete information concerning his offense by the time of the sentencing hearing and thus, failed to establish his eligibility for safety valve relief. Petitioner was then sentenced to the mandatory minimum term of 120 months' imprisonment.
Defendant filed an appeal of this Court's determination and, on October 28, 2010, the Ninth Circuit Court of Appeals issued a memorandum decision affirming Petitioner's sentence. The mandate was issued on November 19, 2010 and Petitioner filed the instant motion under 18 U.S.C. § 2255 on November 30, 2010.*fn2
Petitioner contends that the mandatory minimum sentence imposed by this Court is illegal because this Court failed to make necessary findings of fact and erred in denying Petitioner safety valve relief.*fn3 Petitioner contends that the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), requires that certain provisions of 18 U.S.C. § 3553(f), the safety valve statute, be severed. Specifically, Defendant contends that the Court is required to reconsider his eligibility for safety valve relief without reference to 18 U.S.C. § 3553(f)(1) and 18 U.S.C. § 3553(f) provides:
(f) Limitation on applicability of statutory minimums in certain cases.
--Notwithstanding any other provision of law, in the case of an offense under section 401, 404, or 406 of the Controlled Substances Act (21 U.S.C. 841, 844, 846) or section 1010 or 1013 of the Controlled Substances Import and Export Act (21 U.S.C. 960, 963), the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that--(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines;
(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
(3) the offense did not result in death or serious bodily injury to any person;
(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and
(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the ...