United States District Court, N.D. California, San Jose Division
ORDER DENYING PETITIONER'S MOTION TO SET ASIDE, CORRECT, OR VACATE SENTENCE PURSUANT TO 28 U.S.C. § 2255
LUCY H. KOH, District Judge.
On September 26, 2014, Petitioner Ricardo Ramirez-Ramirez ("Petitioner"), in pro se, filed a motion pursuant to 28 U.S.C. § 2255 challenging his sentence and arguing that the Court erred "by failing to consider and explain why a term of supervision [sic] release was warranted in light of U.S.S.G. § 5D1.1." ECF No. 36 (Motion to Set Aside, Correct, or Vacate Sentence Pursuant to 28 U.S.C. § 2255) ("Petition") at 2.
On October 13, 2014, the Court issued an Order directing the United States to respond. ECF No. 39. The United States filed its Opposition on January 30, 2015. ECF No. 40. Petitioner filed a reply on March 23, 2015. ECF No. 48.
A. Petitioner's Binding Plea Agreement
On January 30, 2013, with the assistance of counsel, Petitioner executed a plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). ECF No. 20 ("Plea Agreement"). 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 Count One of the captioned indictment charging me with Illegal Re-Entry Following Deportation, in violation of 8 U.S.C. § 1326....
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 pursue any affirmative defenses and present evidence.
4. I agree to give up my right to appeal my conviction, 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 or sentence, including a petition under 28 U.S.C. § 2255 or 28 U.S.C. § 2241, except that I reserve my right to claim that my counsel was ineffective in connection with the negotiation of this Agreement or the entry of my guilty plea....
7. I agree that the Court will use the Sentencing Guidelines to calculate my sentence. I understand that the Court must consult the Guidelines and take them into account when sentencing, together with the factors set forth in 18 U.S.C. § 3553(a). I agree that the Sentencing Guidelines offense level 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 or variance from the offense level and Guidelines range as determined by the Court.
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: a 70-month term of imprisonment, with 23-months considered time-served as of the date this sentence is imposed, a three-year term of supervised release, and a $100 special assessment.
The Defendant's Affirmations
16. I confirm that I have had adequate time to discuss this case, the evidence, and this Agreement with my attorney and that my attorney has provided me with all the legal advice that I requested.
17. 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 that would impair my ability to understand the Agreement.
18. 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 voluntarily, and no one coerced or threatened me to enter into this Agreement.
Plea Agreement ¶¶ 1-19.
B. Petitioner's Plea ...