United States District Court, N.D. California, San Jose Division
ORDER DENYING PETITIONER'S (1) MOTION FOR DOWNWARD DEPARTURE PURSUANT TO 28 U.S.C. § 2255; (2) MOTION FOR EVIDENTIARY HEARING; AND (3) MOTION FOR APPOINTMENT OF COUNSEL
LUCY H. KOH, District Judge.
On October 24, 2013, Petitioner Francisco Alcazar ("Petitioner"), acting pro se, filed a "Motion for Downward Departure" (hereinafter "Petition") asking the Court to modify his sentence. ("Pet.") ECF No. 165. Petitioner claims that a lesser sentence is warranted because: (1) his status as a deportable alien renders him ineligible for a "residential drug abuse program" and a "timely half-way house release;" and (2) there have been changes to the United Stated Sentencing Guidelines regarding "Federal Guideline[s] for immigration offender[s] who are deportable to there [ sic ] native country after serving prison sentence." Id. at 2. Petitioner also filed a motion for appointment of counsel. ("Mot. to Appoint Counsel") ECF No. 167. Although Petitioner originally pleaded guilty and was sentenced before Judge Jeremy Fogel, the Petition was assigned to the undersigned judge in light of Judge Fogel's service as director of the Federal Judicial Center.
On November 8, 2013, this Court issued an Order directing the United States to respond. ECF No. 168. The United States filed its Opposition on March 6, 2014. ECF No. 173.
A. Petitioner's Binding Plea Agreement
On September 28, 2009, with the assistance of counsel and an interpreter, Petitioner executed a plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). ("Plea Agreement") ECF No. 123. Rule 11(c)(1)(C) provides that where the parties "agree that a specific sentence... is the appropriate disposition of the case... such a recommendation or request binds the court once the court accepts the plea agreement." The Plea Agreement provided, in part:
The Defendant's Promises
1. I agree to plead guilty to Counts 1 and 2 of the captioned information charging me with using a communications facility in the commission of an act constituting a controlled substance offense, that is, the distribution of 1 gram of pure or actual methamphetamine, and the possession of 213.2 grams of pure or actual methamphetamine, in violation of 21 U.S.C. [§] 843(b)...
3. I agree to give up all rights that I would have if I chose to proceed to trial, including the rights to a jury trial with the assistance of an attorney; to confront and cross-examine government witnesses; to remain silent or testify; to move to suppress evidence or raise any other Fourth or Fifth Amendment claims; to any further discovery from the government and to further DNA testing of physical evidence in the government's possession; and to pursue any affirmative defenses and present evidence.
4. I agree to give up my right to appeal my conviction(s), the judgment, and orders of the Court. I also agree to waive any right I may have to appeal any aspect of my sentence, including any orders relating to forfeiture and/or restitution.
5. I agree to waive any right I may have to file any collateral attack on my conviction(s) or sentence, including a petition under 28 U.S.C. § 2255 or 28 U.S.C. § 2241, or motion under 18 U.S.C. § 3582, at any time in the future after I am sentenced, except for a claim that my constitutional right to the effective assistance of counsel was violated....
6. I agree not to ask the Court to withdraw my guilty plea(s) at any time after it is (they are) entered, unless the Court declines to accept the sentence agreed by the parties. I agree that the government may withdraw from this Agreement if the Court does not accept the agreed upon sentence set out below, the statute of limitations shall be tolled from the date I signed the plea agreement until the date the Court does not accept the plea agreement.
7. I agree that my sentence should be calculated pursuant to the Sentencing Guidelines. I understand that the Court, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing, together with the factors set forth in 18 U.S.C. § 3553(a). I also agree that the Sentencing Guidelines range will be calculated as follows and that I will not ask for any other adjustment to or reduction in the offense level or for a downward departure from the Guidelines range:
8. I agree that a reasonable and appropriate disposition of this case, under the Sentencing Guidelines and 18 U.S.C. § 3553(a), and the sentence to which the parties have agreed, is as follows: 36 months imprisonment for count 1 to run consecutively to 48 months for count two for a total of 84 months imprisonment, 3 years of supervised release with conditions to be fixed by the Court, no fine, $100 special assessment per count and no restitution....
10. I agree that this Agreement contains all of the promises and agreements between the government and me, and I will not claim otherwise in the future.
The Defendant's Affirmations
15. I confirm that I have had adequate time to discuss this case, the evidence, and this Agreement with my attorney, and that he has provided me with all the legal advice that I requested.
16. I confirm that while I considered signing this Agreement, and at the time I signed it, I was not under the influence of any alcohol, drug, or medicine.
17. I confirm that my decision to enter a guilty plea is made knowing the charges that have been brought against me, any possible defenses, and the benefits and possible detriments of proceeding to trial. I also confirm that my decision to plead guilty is made ...