United States District Court, S.D. California
ORDER DENYING MOTION BROUGHT PURSUANT TO 28 U.S.C.
JEFFREY T. MILLER UNITED STATES DISTRICT JUDGE
Melissa Ann Vega moves for a reduction in her custodial
sentence and the amount of restitution imposed as part of her
sentence pursuant to 28 U.S.C. §2255
(“Motion”). For the reasons set forth below, the
court denies the motion brought pursuant to 28 U.S.C.
§2255 and denies a certificate of appealability.
December 2, 2015, Petitioner waived indictment and entered a
guilty plea to Conspiracy to File False, Fictitious, and
Fraudulent Claims (18 U.S.C. § 286), Tax Evasion (26
U.S.C. § 7201), and Aggravated Identity Theft (18 U.S.C.
§ 1028A). The signed plea agreement included
Petitioner's knowing and voluntary waiver of her rights
to appeal and collaterally attack her conviction, sentence,
and restitution order. (Ct. Dkt. 93, 94, 97). On March 18,
2016, this Court imposed a sentence of eight-four (84) months
in custody, whereby sixty (60) months were imposed on Counts
1 and 2 and twenty-four (24) months was imposed on Count 3
(to run consecutive to Counts 1 and 2). The Court also
imposed the jointly requested amount of restitution totaling
$7, 176, 836 to be paid to the Internal Revenue Service
March 23, 2017, Petitioner filed the present Motion based
upon documents she received from the IRS. Petitioner
interprets those documents to mean that the agreed upon
amount of restitution, $7, 176, 836, should be $340, 000. The
Government explains that the documents received by Petitioner
reflect a limited-scope audit conducted by the IRS-Civil
division. Of the 4, 194 false returns filed by Petition, the
IRS-Civil division investigation focused only on 48 false
returns. The $340, 000 amount of losses reflected on those 48
false returns constitutes only about 1% of the false returns
prepared by Petitioner. (Keester Decl.).
waived her right to collaterally attack the sentence.
Contract law standards govern the validity of plea
agreements. United States v. Keller, 902 F.2d 1391,
1393 (9th Cir. 1990). A defendant validly waives her
appellate rights if the language of the waiver encompasses
the right to appeal on the grounds raised and she knowingly
and voluntarily agrees to waive those rights. United
States v. Rahman, 642 F.3d 1257, 1259 (9th Cir. 2011). A
waiver provision barring a defendant from seeking collateral
relief under a § 2255 motion is valid and enforceable.
See United States v. Abarca, 985 F.2d 1012, 1014
(9th Cir. 1993); see United States v.
Navarro-Botello, 912 F.2d 318, 321-22 (9th Cir. 1990)
(reasoning the public policy of finality supports upholding
waivers in plea agreements).
Petitioner validly waived her right to collaterally attack
the sentence when she executed a plea agreement expressly
waiving her right to appeal or to collaterally attack the
conviction and sentence unless the court imposed a custodial
sentence greater than the high end of the guideline range
recommended by the government. The waiver applies because, at
sentencing, the court imposed a sentence less than the
guideline range recommended by the Government. The record
reveals that Defendant's waiver was knowing and
the court dismisses the Motion.
Ineffective Assistance of Counsel
claims also fail on the merits. To prevail on an ineffective
assistance of counsel claim, a petitioner must demonstrate
that (1) counsel's performance was deficient; and (2)
counsel's deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
A petitioner must demonstrate that counsel's
representation fell below an “objective standard of
reasonableness” and that, but for counsel's errors,
there is a reasonable probability that the result of the
proceeding would have been different. Id at 694.
Petitioner misinterprets the Form 886-A provided to her by
IRS-Civil division. (Ct Dkt. 131). This document does not
support Petitioner's claim that total restitution is
$340, 000. The declaration of IRS Special Agent Keester
reveals that the Form 886-A represents the IRS-Civil division
investigation that focused only on 48 false returns, and not
all the 4, 194 false returns prepared by Petitioner. As the
Form 886-A document is consistent with the agreed upon ...