Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona TIMOTHY F. ANDREW S Assistant U.S. Attorney Arizona State Bar No. 021658 4035 South Avenue A Yuma AZ 85365 Telephone (928) 344-1087 Email: [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff-Respondent, v. Roman Alberto Gonzalez, Defendant-Movant. CR-04-890-PHX-SRB CV-05-2349PHX-SRB(ECV) SUPPLEMENTAL FILING REGARDING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255

The United States of America, by and through undersigned counsel, hereby submits this 15 supplemental filing to its response to defendant Roman Alberto Gonzalez's Motion to Vacate, 16 Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth in the 17 accompanying Memorandum of Points and Authorities, the government contends that, because 18 the defendant has executed a valid waiver of his right to appeal or collaterally attack his sentence 19 and conviction, the Court should deny his motion. 20 21 22 23 24 25 26 27 28 s/ TIMOTHY F. ANDREWS Assistant U.S. Attorney PAUL K. CHARLTON United States Attorney District of Arizona Respectfully submitted this 31 st day of August 2006.

Case 2:04-cr-00890-SRB

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MEMORANDUM OF POINTS AND AUTHORITIES Facts and Procedural History After being sentenced to a 37-month term of imprisonment for importing 31 kilograms of cocaine into the United States, the defendant, Roman Alberto Gonzalez, filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The government filed a response in opposition to that motion but failed to address the issue of whether the defendant had waived his right to collaterally attack his judgment and sentence. On August 23, 2006, the Court issued an order affording both parties the opportunity to address the waiver issue.

ANALYSIS A defendant may waive the right to file a § 2255 petition if the waiver is done expressly.

United States v. Nunez, 223 F.3d 956, 958 (9th Cir. 2000); United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994). In the plea agreement the defendant executed with the government , he waived his right to appeal or collaterally attack his sentence so long as that sentence was consistent with the terms of the agreement. (CR 28: 4). During his change of plea hearing, the defendant was asked several questions about his plea agreement, including whether he understood it and whether he agreed to everything in it. (Exhibit A at 9-11). The defendant acknowledged that he did understand and agree to terms of the agreement. Id. More specifically, th defendant was apprised of the fact that his plea agreement contained a waiver of his right to appeal and collaterally attack his conviction or sentence. (Exhibit A at 17). Defendant

acknowledged that he understood and agreed to the waiver. Id. At the defendant's sentencing hearing, the Court imposed a sentence of 37 months, a shorter sentence than that which was contemplated by the terms of the plea agreement (Exhibit B at 13-14). Because the defendant's sentence was consistent with the bargain he had struck with the government, he has expressly waived his right to collaterally attack his conviction and sentence.

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III.

Conclusion The defendant's 37-month sentence fell well below the sentence he would have received

by the terms of the plea agreement alone. The defendant's sentence is therefore consistent with the plea agreement and his waiver of the right to collaterally attack his sentence is valid. The government requests that the Court deny the defendant's motion to vacate, correct, or set aside his sentence. Respectfully submitted this 31 st day of August 2006.

PAUL K. CHARLTON United States Attorney District of Arizona s/ TIMOTHY F. ANDREWS Assistant United States Attorney

CERTIFICATE OF SERVICE I hereby certify that, on August 31, 2006, I mailed a copy of the foregoing supplemental filing and its attached exhibits to the following, who are not registered participants of the ECF system for electronic filing: Roman Alberto Gonzalez 63809-208 CCCC-Milan Cibola County Correctional Center P.O. Box 3540 Milan NM 87021 by: s/ Timothy F. Andrews

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