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Martin Antonio Cabanillas- Garcia v. United States of America

November 26, 2012

MARTIN ANTONIO CABANILLAS- GARCIA,
DEFENDANT-MOVANT,
v.
UNITED STATES OF AMERICA, PLAINTIFF-RESPONDENT.



The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge

ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

Martin Antonio Canabillas-Garcia ("Defendant"), a federal inmate proceeding pro se, has filed a motion for sentence reduction pursuant to 28 U.S.C. § 2255. For the reasons set forth below, Defendant's § 2255 motion and a certificate of appealability are DENIED.

I. BACKGROUND

On September 14, 2011, a grand jury indicted Defendant with a charge of violating 21 U.S.C. §§ 952, 960, importation of methamphetamine. On May 24, 2012, Defendant pled guilty pursuant to a Plea Agreement. (Plea Agreement, ECF No. 34.) In the Plea Agreement, Defendant acknowledged that the crime to which he pled guilty carried a mandatory minimum of ten years in prison. (Id. at 3.) Defendant also stipulated to an order of removal from the United States upon serving his imposed sentence and waived his right to appeal or collaterally attack his sentence. (Id. at 9, 12.)

At sentencing, counsel for Defendant calculated a sentencing guideline range of 57 to 71 months and recommended 30 months in custody and 3 years of supervised release. (Def.'s Sentencing Chart, Sept. 28, 2012, ECF No. 39.) The Government also calculated a sentencing guideline range of 57 to 71 months and recommended 57 months in custody. (Gov't Sentencing Chart, Oct. 3, 2012, ECF No. 40.) On October 5, 2012, the Court sentenced Defendant to a 41-month term of imprisonment and 3-year supervised release term. (ECF No. 42.)

II. DISCUSSION

Defendant argues for a sentence reduction based on the fact that as a deportable alien, he is ineligible for (1) housing in a minimum security facility or community confinement or (2) a one-year sentence reduction through a drug program and/or early release to a halfway house. Defendant further contends that his ineligibility for these programs violates due process, equal protection, and the Equal Rights Act.

Defendant's motion, however, fails for two reasons. First, Defendant waived his right to collaterally attack his sentence under the Plea Agreement. Second, even assuming Defendant did not waive his right to attack his sentence, his due process, equal protection, and Equal Rights Act claims fail on the merits.

A. Waiver

Defendant argues for a sentence reduction, but Defendant waived his right to collaterally attack his sentence. "A defendant's waiver of his appellate rights is enforceable if (1) the language of the waiver encompasses his right to appeal on the grounds raised, and (2) the waiver is knowingly and voluntarily made." United States v. Rahman, 642 F.3d 1257, 1259 (9th Cir. 2011) (citingUnited States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005)). The Ninth Circuit has also recognized that a waiver barring collateral attack of a conviction or sentence is enforceable when voluntarily made. See United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993).

Here, Defendant entered a Plea Agreement, filed on May 24, 2012, that expressly waived his right to collaterally attack his sentence:

Defendant also waives, to the full extent of the law, any right to appeal or to collaterally attack his sentence, except a post-conviction collateral attack based on a claim of ineffective assistance of counsel, unless the Court imposes a custodial sentence above the greater of: the high end of the guideline range calculated by the Government pursuant to this plea agreement, or the statutory mandatory minimum term. (Plea Agreement 10.) Defendant has not alleged a claim of ineffective assistance of counsel. Additionally, the Court imposed a sentence of 41 months, which is less than both the Government's calculated guideline range of 57 to 71 months and the statutory mandatory minimum term of 10 years imprisonment. Thus, the language of the waiver encompasses the grounds raised in the instant motion. Further, Defendant has not alleged, and there is nothing in the record to indicate, that his waiver was not knowingly and voluntarily made.

Accordingly, Defendant waived his right to collaterally attack his sentence, and therefore the Court ...


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