United States District Court, S.D. California
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT
SENTENCE PURSUANT TO 28 U.S.C. § 2255 [Doc. 32]
James Lorenz United States District Judge
August 15, 2016, Jessica Lizeth Vargas Mariscal
("Petitioner") proceeding pro se, filed a
motion pursuant to 28 U.S.C. § 2255 to vacate, set aside
or correct her sentence requesting a downward adjustment in
her sentence based on her minor role in the offense. [Doc.
32]. The government filed a response in opposition on
September 19, 2016. [Doc. 35.] The Court has reviewed the
record and submissions of the parties. For the reasons stated
below, the Court DENIES Petitioner's motion.
28 U.S.C. § 2255, a federal prisoner may move the court
that imposed her sentence to vacate, set aside, or correct
the sentence if it "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." 28 U.S.C.
§ 2255(a). To warrant relief under § 2255, a
petitioner must allege a "lack of jurisdiction or
constitutional error, [because] an error of law will not
provide a basis for habeas relief unless that error
'resulted in a complete miscarriage of justice or in a
proceeding inconsistent with the rudimentary demands of fair
procedure.'" Hamilton v. United States, 67
F.3d 761, 763-64 (9th Cir. 1995) (quoting United States
v. Timmreck, 441 U.S. 780, 783-84 (1979)).
preliminary matter, Petitioner's motion is time barred.
Motions under §2255 have a one year period of
limitation. 28 U.S.C. 2255(f). Here, the Court sentenced
Petitioner on December 8, 2014 and Petitioner filed the
pending motion on August 15, 2016. However, even if
Petitioner were able to show that her Petition is timely,
this Court lacks jurisdiction to consider her collateral
challenge to her sentence because she waived her appellate
and collateral attack rights.
of her plea agreement, Petitioner waived both the right to
appeal and the right to collaterally attack the judgment and
sentence. Because Petitioner does not challenge the validity
of the waiver, nor call into doubt the effectiveness of her
counsel's assistance regarding her decision to enter into
the agreement, the Court finds that the waiver should be
knowing and voluntary waiver of a statutory right is
enforceable. United States v. Navarro-Botello, 912
F.2d 318, 321 (9th Cir. 1990). The right to collaterally
attack a sentence under 28 U.S.C. § 2255 is statutory in
nature, and a defendant may therefore waive the right to file
a § 2255 petition. See, e.g., United States v.
Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993) (by entering
plea agreement waiving right to appeal sentencing issues,
defendant relinquished his right to seek collateral relief
from his sentence on the ground of newly discovered
scope of a § 2255 waiver, however, may be subject to
potential limitations. For example, a defendant's waiver
will not bar an appeal if the trial court did not satisfy
certain requirements under Rule 11 of the Federal Rules of
Criminal Procedure to ensure that the waiver was knowingly
and voluntarily made. Navarro-Botello, 912 F.2d at
321. Such a waiver might also be ineffective where the
sentence imposed is not in accordance with the negotiated
agreement, or if the sentence imposed violates the law.
Id.; United States v. Littlefield, 105 F.3d 527, 528
(9th Cir. 1996). Finally, a waiver may not
"categorically foreclose" defendants from bringing
§ 2255 proceedings involving ineffective assistance of
counsel or involuntariness of waiver. Abarca, 985
F.2d 1012, 1014; United States v. Pruitt, 32 F.3d
431, 433 (9th Cir. 1992).
case, none of these potential limitations to the validity of
Petitioner's waiver are applicable. Petitioner does not
raise any challenges to the knowing and voluntary nature of
her plea. The plea agreement contains a provision certifying
that Petitioner read the agreement (or had it read to her in
her native language) and that Petitioner discussed its terms
with her defense counsel and fully understood its meaning and
effect. [Doc. 20, at 11-12.] It also contains a provision
certifying that the plea was knowing and voluntary.
[Id. at 5-6.] Petitioner was sentenced to the low
end of the range recommended by the government. [Docs. 26,
29.] Accordingly, Petitioner's waiver applies and this
Court lacks jurisdiction to consider her Petition. See
Washington v. Lampert, 422 F.3d 864, 869 (9th
the sentence imposed by the Court was in accordance with the
negotiated agreement, and in accordance with the applicable
sentencing guidelines. On September 11, 2014, Petitioner pled
guilty to a single count of importation of methamphetamine in
violation of 21 U.S.C. §§ 952 and 960. [Doc. 20].
On December 8, 2014, this Court sentenced Petitioner to a
term of imprisonment of 41 months, followed by three years of
supervised release. [Doc. 28]. The applicable base offense
level under U.S.S.G. § 2Dl.lfor that quantity of
controlled substances is 33. In arriving at Petitioner's
sentence, the Court granted a 2-level downward adjustments to
the base offense level for safety valve and another 2-level
downward adjustment for minor role. In addition, the Court
granted a 3-level reduction for acceptance of responsibility
as recommended by the parties under the terms of the Plea
Agreement. The Court awarded a 4-level downward adjustment
for Fast Track, bringing the total offense level to 22, with
a criminal history of category I. Accordingly, the Court
sentenced Petitioner to a 41-month sentence of imprisonment,
which represented the low-end of the 41 to 51 month
sentencing range established by the United States Sentencing
Guidelines. Thus, although the Court was not bound by the
Plea Agreement, the Court followed its terms and the
resulting sentence was in accordance with both the terms of
the negotiated agreement and the applicable sentencing
Petitioner does not dispute the effectiveness of her
counsel's assistance regarding her decision to enter into
the Plea Agreement. Therefore, the Court finds that none of
the recognized limitations of a defendant's waiver of the
right to bring a § 2255 motion are present in this case.
Accordingly, the collateral attack waiver provision in
Petitioner's Plea Agreement will be enforced.
assuming Petitioner had not waived her right to collaterally
attack her sentence, Petitioner requests a downward
adjustment in her sentence based on her minor role in the
offense. Under U.S.S.G. § 3B1.2, a court may decrease an
offense level by two if the defendant had a minor role in the
criminal activity. In support of a downward adjustment,
Petitioner cites to United States v. Quintero-Leyva,
823 F.3d 519 (9th Cir. 2016) and U.S.S.G. Amendment 794.
Petitioner argues Amendment 794 applies retroactively to her
case and that, when the Amendment is applied, she is entitled
to a reduction in her sentence. On November 1, 2015, the
United States Sentencing Commission issued Amendment 794,
which added five, non-exhaustive factors that courts should
consider when determining whether to grant a minor role
reduction. U.S.S.G. App. C. Amend. 794. The Commission also
amended § 3B1.2's commentary to allow for a broader
and more uniform application of the mitigating role
sentencing factor. Id. In United States v.
Quintero-Leyva, the Ninth Circuit held Amendment 794 is
a "clarifying amendment" and "applies
retroactively to direct appeals." United States v.
Quintero-Leyva, 823 F.3d 519, 522-23 (9th Cir. 2016).
During sentencing, this Court granted Petitioner a two-level
minor role reduction under § 3B1.2, therefore, she has
already received the relief she request. Accordingly,
Petitioner's motion is denied.
foregoing reasons, the Court DENIES Petitioner's motion
to vacate, set aside, or correct sentence ...