Free Order on Motion to Vacate (2255) - District Court of Arizona - Arizona

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SVK

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff, v. Victor Preciado-Romo, Defendant/Movant.

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No. CR 04-0765-PHX-FJM No. CV 06-0996-PHX-FJM (MEA) ORDER

Movant Victor Preciado-Romo, confined in the Eden Detention Center in Eden, Texas, filed a pro se Motion to Reduce Sentence By An Inmate In Federal Custody (28 U.S.C. § 2255). By Order filed July 27, 2006, the Court dismissed the Motion with leave to amend. On August 18, 2006, Movant filed an Amended Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 (CR Doc. #96). The Court will summarily dismiss the Amended Motion. I. Procedural History Pursuant to a plea agreement, Movant pled guilty to Harboring Illegal Aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(iii). The plea agreement provided for a sentence of no more than 37 months. On November 7, 2005, the Court sentenced Movant to a 37-month term of imprisonment followed by 3 years on supervised release. In his Amended Motion, Movant seeks a reduction of his sentence. He argues that his equal protection rights are violated because as a deportable alien prisoner, he is ineligible for a one-year sentence reduction for attending a drug treatment program during incarceration.
Case 2:04-cr-00765-FJM Document 97 Filed 09/22/2006 Page 1 of 3

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II. Summary Dismissal A district court must summarily dismiss a § 2255 application "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief." Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts. When this standard is satisfied, neither a hearing nor a response from the government is required. See Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985); Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1982). Moreover, if there has been a valid waiver of the right to file a federal habeas corpus petition, a court lacks jurisdiction to hear the case. See Washington v. Lampert, 422 F.3d 864, 869 (9th Cir. 2005). In this case, the record shows that summary dismissal under Rule 4(b) is warranted because Movant has waived the right to bring a § 2255 motion.1 III. Waiver Movant has waived challenges to his sentence. The Ninth Circuit Court of Appeals has found that there are "strict standards for waiver of constitutional rights." United States v. Gonzalez-Flores, 418 F.3d 1093, 1102 (9th Cir. 2005). It is impermissible to presume waiver from a silent record, and the Court must indulge every reasonable presumption against waiver of fundamental constitutional rights. United States v. Hamilton, 391 F.3d 1066, 1071 (9th Cir. 2004). In this action, Movant's waiver was clear, express, and unequivocal. Plea agreements are contractual in nature, and their plain language will generally be enforced if the agreement is clear and unambiguous on its face. United States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005). A defendant may waive the statutory right to bring a § 2255 action challenging the length of his sentence. United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1992).

In addition, the Ninth Circuit explicitly rejected Movant's equal protection argument in McLean v. Crabtree, 173 F.3d 1176, 1185-86 (9th Cir. 1999). Case 2:04-cr-00765-FJM Document 97 -2Filed 09/22/2006 Page 2 of 3

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As part of his plea agreement, Movant made the following waiver: The defendant waives any and all motions, defenses, probable cause determinations, and objections which the defendant could assert to the indictment or information or to the Court's entry of judgment against the defendant and imposition of sentence upon the defendant, providing the sentence is consistent with this agreement. The defendant further waives: (1) any right to appeal the Court's entry of judgment against defendant; (2) any right to appeal the imposition of sentence upon defendant under Title 18, United States Code, Section 3742 (sentence appeals); and (3) any right to collaterally attack defendant's conviction and sentence under Title 28, United States Code, Section 2255, or any other collateral attack. The defendant acknowledges that this waiver shall result in the dismissal of any appeal or collateral attack the defendant might file challenging his conviction or sentence in this case.
(CR Doc. #90 at 4) (Emphasis added). Movant indicated in his plea agreement that he had read the agreement with the assistance of counsel and understood its provisions, that he had been advised of the range of the possible sentence, that he agreed to the terms and conditions, and that he entered into the plea voluntarily. (CR Doc. #90 at 7).

Movant's assertions in his § 2255 Amended Motion all pertain to sentencing. Movant expressly waived issues regarding the imposition of sentence and expressly waived the right to bring a § 2255 motion. The court accepted his plea as voluntarily made. Consequently, the court finds that Movant waived the sentencing issues raised in his § 2255 Amended Motion. Thus, the court will summarily dismiss the Amended Motion. Accordingly, IT IS ORDERED that the Amended Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (CR Doc. #96 in CR 04-0765-PHX-FJM) is denied and that the civil action opened in connection with this Motion (CV 06-0996-PHXFJM (MEA)) is dismissed. The Clerk of Court must enter judgment accordingly. DATED this 21st day of September, 2006.

Case 2:04-cr-00765-FJM

Document 97

-3Filed 09/22/2006

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