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United States of America v. Jesus Rodriguez-Tovar

January 7, 2013

UNITED STATES OF AMERICA,
PLAINTIFF-RESPONDENT,
v.
JESUS RODRIGUEZ-TOVAR,
DEFENDANT-MOVANT.



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

ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

Jesus Rodriguez-Tovar ("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 December 7, 2011, a grand jury indicted Defendant with a charge of violating 8 U.S.C. §§ 1326(a) and (b), a deported alien found in the United States. (Indictment, Dec. 7, 2011, ECF No. 1.) On June 7, 2012, Defendant pled guilty pursuant to a Plea Agreement. (Plea Agreement, June 7, 2012, ECF No. 17.) In the Plea Agreement, Defendant acknowledged that his sentence was within the sole discretion of the sentencing judge. (Id. at 6.) The parties also agreed to jointly recommend a Base Offense Level of 8, a plus 16 for deportation after a conviction for aiding and abetting the transportation of an illegal alien, and minus 3 for acceptance of responsibility. (Id. at 7.) The parties, however, had no agreement as to Defendant's Criminal History Category. (Id. at 8.) Defendant also stipulated to an order of removal from the United States upon serving his imposed sentence if his attempt to obtain legal status failed and waived his right to appeal or collaterally attack his sentence. (Id. at 9-10.)

At sentencing, counsel for Defendant calculated a sentencing guideline range of 10 to 16 months and recommended 12 months and 1 day in custody. (Def.'s Sentencing Chart, Sept. 27, 2012, ECF No. 24.) The Government calculated a sentencing guideline range of 46 to 57 months and recommended 46 months in custody. (Gov't Sentencing Chart, Sept. 19, 2012, ECF No. 22.) On October 1, 2012, the Court sentenced Defendant to a 27-month term of imprisonment, followed by a three-year term of supervised release, and a $100 penalty assessment. (ECF No. 28.)

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 Right Act."*fn1

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 and equal protection 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 June 7, 2012, that expressly waived his right to collaterally attack his sentence:

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 conviction and 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 high end of the guideline range recommended by the Government pursuant to this agreement at the time of sentencing. If the custodial sentence is greater than the high end of that range, defendant may appeal, but the Government will be free to support on appeal the sentence actually imposed. (Plea Agreement 10.) Defendant has not alleged a claim of ineffective assistance of counsel. Additionally, the Court imposed a sentence of 27 months, which is less than the Government's recommended guideline range of 46 to 57 months. 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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