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Lopez v. United States

United States District Court, E.D. California

June 29, 2017



         On March 9, 2010, Petitioner Efren Abraham Lopez (“Lopez”) filed a motion pro se, asking the Court to clarify its original judgment imposed on June 14, 2004, in this case.[1] Lopez pled guilty to a drug charge and the Court adopted the presentencing report, which included a 2 point firearms enhancement. Lopez seeks to have the gun enhancement removed from his sentence. Lopez's motion to “clarify”[2] is actually a challenge to the Court's sentencing, and for the reasons that follow, the Court will deny his motion.


         On June 14, 2004, the Court imposed judgment on Lopez. Doc. No. 163. Lopez pled guilty to one count of the indictment, which was Conspiracy to Manufacture and Distribute Methamphetamine and Aiding and Abetting. Doc. No. 119. As part of the sentencing, the Court reviewed and adopted the presentence report, which included a 2 point firearms enhancement. See June 14, 2004 Reporter's Transcript of Proceedings. The Court sentenced Lopez to a term of 120 months in prison and a term of 60 months of supervised release.[3] Doc. No. 163.


         A. Lopez's Arguments

         Lopez states that on January 8, 2010, he was notified by the prison's Drug Abuse Program Coordinator that he would not qualify for early release under the Drug Abuse Program, due to a firearms enhancement. Lopez maintains that the Court dismissed the 2 point gun enhancement at the sentencing phase held before this Court.[4] Lopez asks the Court to amend the presentencing report and order that the 2 point enhancement should not hinder him from receiving a reduction in his sentence for successfully completing the Residential Drug Abuse Program. Lopez maintains this is a matter of “clerical error.”

         B. Legal Standard

         28 U.S.C. § 2255 which provides, in pertinent part[5]: “A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States ... may move the court which imposed the sentence to vacate, set aside or correct the sentence.” The court may deny a hearing if the movant's allegations, viewed against the record, fail to state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal. United States v. Withers, 638 F.3d 1055, 1062-63 (9th Cir. 2011); Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1983). A petitioner is not required to allege facts in detail, but he “must make factual allegations” and cannot rest on merely conclusory statements. Baumann, 692 F.2d at 571; United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir.1980). Accordingly, an evidentiary hearing is required if: (1) a petitioner alleges specific facts, which, if true would entitle him to relief; and (2) the petition, files, and record of the case cannot conclusively show that the petitioner is entitled to no relief. United States v. Howard, 381 F.3d 873, 877 (9th Cir. 2004). If this criteria is not met, the Court may summarily dismiss the § 2255 petition. See Abatino v. United States, 750 F.2d 1442, 1443-44 (9th Cir. 1985); Baumann, 692 F.2d at 571.

         C. Discussion

         After considering Petitioner's motion, the Court concludes that relief is not warranted. First, Petitioner signed a plea agreement in which he expressly agreed that he would not engage in any post-conviction attack, including through a § 2255 motion. See Doc. No. 119 at ¶ 2(d) (“The defendant also waives his right to challenge his conviction, sentence or the manner in which it was determined in any post-conviction attack, including but not limited to a motion brought under Title 28, United States Code, Section 2241 or 2255.”). Plea agreements will be enforced as long as they are unambiguous and voluntarily made. See United States v. Jeronimo, 398 F.3d 1149, 1153-54 (9th Cir. 2005) overruled on other grounds by United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en banc); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1992). Petitioner does not address the plea agreement or argue that the agreement was involuntary, and the language of the plea agreement is clear. See Doc. No. 119 at ¶ 2(d). The plea agreement precludes the relief that Petitioner seeks. See Jeronimo, 398 F.3d at 1153-54; Abarca, 985 F.2d at 1014.

         Second, there is no indication that Petitioner appealed his sentence and a “petitioner may not collaterally attack a sentence under § 2255 if he did not challenge it at sentencing or on a direct appeal.” Johnson v. United States, 362 F.3d 636, 638 (9th Cir. 2004). A review of the sentencing transcript shows that there was no challenge to the sentence imposed, and the docket reflects that no appeal was taken.[6]


         Accordingly, IT IS HEREBY ORDERED that Petitioner's motion (Doc. Nos. ...

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