United States District Court, S.D. California
ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY
BARRY TED MOSKOWITZ, Chief District Judge.
Donald Barton Deshotels. Jr., ("Defendant"), an inmate of the United States Penitentiary in Lompoc, California, proceeding pro se, has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, Defendant's § 2255 motion and a Certificate of Appealability are DENIED.
On April 23, 2009, Defendant was indicted on five counts of bank robbery in violation of 8 U.S.C. § 2113(a). (Dkt. No. 17.) On July 21, 2010, Defendant pled guilty pursuant to a Plea Agreement. (Dkt. No. 45.) On November 19, 2010, the Court sentenced Defendant to a 100-month term of imprisonment. (Dkt. No. 52.) On March 14, 2014, Defendant filed this § 2255 motion. (Dkt. No. 65.)
Under § 2255, a prisoner may move to vacate, set aside, or correct his sentence on the ground that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack."
Defendant argues that his sentence should be reduced because the Court's finding, without a jury trial, that a point upward enhancement for "use" of a dangerous weapon was warranted under the United States Sentencing Guidelines ("USSG") § 2B3.1(b)(2), violates the Supreme Court's ruling in Alleyne v. United States, 133 S.Ct. 2151 (2013). The motion is DENIED because Defendant waived his right to collaterally attack the sentence and Alleyne does not apply in this case.
The Plea Agreement states:
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, including any restitution order, unless the Court imposes a custodial sentence greater than the high end of the guideline range (or statutory mandatory minimum term, if applicable) 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. If defendant believes the Government's recommendation is not in accord with this plea agreement, defendant will object at the time of sentencing; otherwise the objection will be deemed waived.
(Dkt. No. 45, at 15.) Accordingly, Defendant waived his right to collaterally attack his sentence unless he can show that the Court imposed a greater sentence than the high end of the Sentencing Guideline range recommended by the Government.
"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) (citing United 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 knowingly and voluntarily made. See United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993).
The range initially recommended by the Government in its Sentencing Summary Chart and Motion under USSG § 3E1.1(b), was 84 to 105 months, which was based on a criminal history category IV and adjusted offense level of 25. (Dkt. No. 49, at 1.) Pursuant to the Plea Agreement, during sentencing the Government recommended an increased sentencing range of 92 to 115 months, with a sentence not exceeding 100 months, based on a criminal history category IV and an adjusted offense level of 26. (Dkt. No. 63-1, at 51-52, 62-63; Dkt. No. 45, at 12.) The Court imposed a 100-month term of custody, which did not exceed the Government's sentence recommendation or the high end of the Sentencing Guideline range recommended by the Government. (Dkt. No. 58, at 2.) Furthermore, the language of the waiver in the Plea Agreement is broad and encompasses Defendant's claim in his section 2255 motion.
Second, Defendant does not contend that his waiver was not knowingly and voluntarily made. Defendant entered into that agreement with his counsel's assistance, the sufficiency of which remains unchallenged. (See Dkt. No. 45, at 17.) Indeed, at the conclusion of the sentencing hearing, Defendant admitted that he waived his right to appeal and attack the sentence and conviction. (Dkt. No. 63-1, at 83.) Having determined that Rahman's two-step test is satisfied, the Court finds that Defendant's waiver of collateral attack is enforceable.
Defendant's argument that the Government violated the Plea Agreement by recommending an upward adjustment of 3 points for "use" and not mere "possession" of a dangerous weapon is unsupported by the record. Defendant admits that after several drafts, he reviewed and agreed to the language appearing in the Sentencing Guideline Calculation section of the Plea Agreement (See Dkt. No. 65, at 6-7.), which omits any upward departure for "use" of a dangerous weapon, but allows for a enhancement for "Threat of Death [§ 2B3.1(b)(2)], " with an additional qualifier, stating: "* The parties agree that the Government may argue for a enhancement for possession of a dangerous weapon under § 2B3.1(b)(2) instead of the enhancement for threat of death." (Dkt. No. 45, at 11.) (emphasis added). Though ...