Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona MICHAEL A. LEE Special Assistant U.S. Attorney Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Arizona State Bar No. 018065 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America Plaintiff, v. Gregorio Miranda-Martinez, Defendant. CR-04-0345-PHX-EHC CV-06-920-PHX-EHC (BPV) RESPONSE IN OPPOSITION TO MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255

The United States of America, hereby opposes defendant GREGORIO MIRANDA-

16 MARTINEZ's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255, 17 for the reasons set forth in the attached Memorandum of Points and Authorities. 18 19 20 21 22 23 24 25 26 27 28 Respectfully submitted this 7th day of August, 2006. PAUL K. CHARLTON United States Attorney District of Arizona S/Michael A. Lee MICHAEL A. LEE Special Assistant U.S. Attorney

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MEMORANDUM OF POINTS AND AUTHORITIES

FACTS; PROCEDURAL HISTORY On April 8, 2004, a grand jury returned an indictment charging the defendant with Count

5 1: Felon in Possession of Firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); Count 6 2: Illegal Alien in Possession of a Firearm, in violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(2); 7 and Count 3: Re-Entry after Deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2). (CR 1; 8 Exhibit 1.) 9 On June 28, 2004, defendant pled guilty, pursuant to a plea agreement, to Count 3 of the The

10 indictment, with Counts 1 and 2 to be dismissed at sentencing. (CR 6; Exhibit 2.) 11 following facts are taken from the factual basis in the plea agreement: 12 13 14 15 16 17 18 19 20 21 (Exhibit 2.) 22 Furthermore, for sentencing purposes, Defendant was convicted of the following listed felonies and was represented by an attorney in each instance: 1. Burglary in the 2nd Degree, and Theft, Arizona Superior Court, Maricopa County, cause number CR89-06002, on or about September 14, 1989; sentenced to 7.5 years each count, concurrent; 2. Burglary in the 2nd Degree, Arizona Superior Court, Maricopa County, cause number CR95-05611, on or about October 13, 1995, sentenced to 6.5 years. On or about January 26, 2004, Defendant, an alien, voluntarily entered and subsequently was found in the United States of America at or near Phoenix, in the District of Arizona, after having been previously denied admission, excluded, deported, and removed from the United States at or near Nogales, Arizona, on or about January 30, 2001, and not having obtained the express consent of the Secretary of Homeland Security to reapply for admission.

At the change of plea proceeding held before the district court, the defendant was placed

23 under oath and gave his true and correct name as Gregorio Miranda-Martinez.1 (RT 6/28/04 2.) 24 Defendant stated he was 49 years of age, that he was born in Guadalajara, Jalisco, Mexico, and 25 that he attended four years of school. He indicated that he can read, write, and understand 26 The district court informed defendant that his answers, given under oath, could be 27 used against him later in a prosecution for perjury or false statement. (RT 06/28/04 2.) 28
2
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1 Spanish, but only knew a little English. Defendant further indicated he was not receiving any 2 medical treatment or medication that would affect his ability to understand the proceedings. (RT 3 06/28/04 3-4.) 4 Defendant affirmed that he signed the plea agreement after reviewing it with his lawyer,

5 who read it to him in Spanish. (RT 6/28/04 5-6.) The court confirmed Defendant was able to 6 effectively communicate with his attorney in his native language, and that his attorney had the 7 ability to answer his questions. (RT 06/28/04 6.) Defendant further confirmed that no one had 8 threatened or coerced him into entering into the plea agreement, and that he was pleading guilty 9 to the crime of Re-entry after Deportation. (RT 6/28/04 7.) The court informed defendant of the 10 maximum penalties for the crime and that he would be deported subsequent to his sentence. 11 (RT 6/28/04 7.) 12 The court went on to inquire of defendant if his counsel had discussed the Sentencing

13 Guidelines, the maximum fine for the charge, and the required special assessment, to which 14 defendant answered affirmatively. (RT 6/28/04 8-9.) The court confirmed with defendant that 15 his plea agreement did not contain any provision as to exactly what the sentencing range would 16 be, indicating defendant's discussions with his attorney regarding this were advisory only, and 17 that prior to sentencing, a presentence report would be prepared which would detail a sentencing 18 range per the Sentencing Guidelines. (RT 6/28/04 9-11.) The court further detailed that in the 19 plea agreement, the government has agreed to recommend a low end sentence, that the court was 20 free to accept or reject that recommendation, and that there were no other agreements regarding 21 sentencing. (RT 6/28/04 11-12.) 22 The court proceeded to discuss the concept of acceptance of responsibility, to which

23 Defendant indicated he understood. (RT 6/28/04 12.) The court then discussed with defendant 24 that he must waive his rights pursuant to the plea agreement, indicating an individual must waive 25 their right to trial, to appeal, and whether the government has proven any elements of the offense 26 beyond a reasonable doubt. (RT 6/28/04 13.) The court advised defendant he was further 27 waiving his right to file a petition for habeas corpus, and that the government could forfeit the 28 firearm related to his case. (RT 6/28/04 13-14.)
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1

The court reviewed the elements of the offense and the factual basis for the charge with

2 defendant. Defendant confirmed that he had discussed the elements with his attorney and that 3 he understood them. (RT 6/28/04 14-16, 19-20.) 4 5 6 7 THE DEFENDANT: Not about those things, but I would like to know if you could sentence me as soon as possible. The court then asked defendant: THE COURT: All right, any questions you'd like to ask me, Mr. Miranda, about any of the things that I've talked with you about?

8 (RT 06/28/04 16.) 9 The court inquired whether defendant was pleading guilty or not guilty to the charge

10 alleged in Count 3 of the Indictment. Defendant stated he was pleading guilty. (RT 6/28/04 1811 19.) 12 Prior to defendant's sentencing, a Presentence Report (PSR) was prepared by U.S.

13 Probation. The PSR detailed defendant's known criminal history, including twelve criminal 14 convictions from 1975 to 2004.2 (PSR ¶¶ 27-35.) These convictions provided a total of 12 15 criminal history points, yielding a criminal history category of V. (PSR ¶ 36.) 16 On October 22, 2004, defendant was sentenced to 87 months prison, the high end of his

17 applicable Sentencing Guideline range, consistent with the terms of his plea agreement. (CR 11; 18 Exhibit 3; PSR 19.) During sentencing, defendant did not make any objections to the 19 Presentence report. He confirmed the PSR was read to him in Spanish. (RT 10/22/04 3.) When 20 asked if he desired to comment or object to the PSR, he asked about his prior criminal 21 convictions, indicating he did not "understand why they are punishing me for what I have 22 already paid for." (RT 10/22/04 4.) The court explained to defendant that he is being sentenced 23 for the crime of Re-entry after Deportation and that his prior convictions were separate charges 24 from the instant case. (RT 10/22/04 4.) 25 26 27 28
The PSR additionally noted that from 1985 to 2001, defendant was incarcerated for all but approximately three years, after which he re-entered prison in 2004, based on his conviction for Possession of Marijuana on January 3, 2004. (PSR ¶ 72.) 4 Case 2:04-cr-00345-EHC Document 31 Filed 08/07/2006 Page 4 of 14
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Following the entry of the judgment, defendant filed a notice of appeal on October 27,

2 2004. (CR 13.) In his appeal, defendant argued the district court failed to conduct a proper Rule 3 11 plea proceeding. On July 14, 2005, the Ninth Circuit rejected defendant's assertions and 4 affirmed the judgement of the district court. (CR 24.) 5 On September 7, 2005, Defendant filed a pro se Motion to Vacate, Set Aside or Correct

6 Sentence pursuant to 28 U.S.C. § 2255. (CR 25.) Defendant is currently in federal custody. 7 8 II. 9 10 11 12 13 14 15 16 17 A. The Defendant's Habeas Petition Should Be Dismissed Because He Expressly Waived the Right to Collaterally Attack His Sentence under Title 28, United States Code, Section 2255. 2. 3. ISSUES In his 2255 motion, Defendant alleges three bases for relief: 1. Sentencing calculation errors effecting a higher base offense level and criminal history category; Ineffective assistance of counsel for failing to object to the calculation errors, and Defendant did not understand the sentencing provisions of his plea agreement.

A defendant may waive his right to file a § 2255 petition if he does so expressly. United

18 States v. Nunez, 223 F.3d 956, 959 (9th Cir. 2000); United States v. Pruitt, 32 F.3d 431, 433 (9th 19 Cir. 1994). Defendant pled guilty pursuant to written plea agreement. In the plea agreement, 20 under the heading "WAIVER OF DEFENSES AND APPEAL RIGHTS", it reads: 21 22 Defendant hereby waives any right to raise on appeal or collaterally attack any matter pertaining to this prosecution and sentence if the sentence imposed is consistent with the terms of this agreement.

23 (Exhibit 2 - emphasis added.) 24 During the plea colloquy, the court advised defendant he was waiving his appellate rights,

25 including his right to file a petition for habeas corpus. (RT 6/28/04 13-14.) 26 Defendant's sentence was consistent with the terms of his plea agreement. Defendant

27 pled guilty to a charge of Re-Entry after Deportation; 8 U.S.C. § 1326(a) and (b)(2). (Exhibit 2.) 28 The maximum penalties for this charge are a maximum term of imprisonment of twenty years,
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1 a maximum fine of $250,000.00, or both and a term of supervised release of up to three years. 2 8 U.S.C. § 1326(a) and (b)(2). In the plea agreement, the government agreed to recommend a 3 sentence at the low end of the guideline range. (Exhibit 1.) At sentencing, the government 4 recommended a sentence of 70 months, the low end of a final adjusted base offense level of 21 5 and a criminal history category VI. (RT 10/22/04 9,10.) This base offense level and criminal 6 history category provide a range of 70 to 87 months. (PSR ¶ 75.) The court sentenced defendant 7 to 87 months. (RT 10/22/04 13.) Because the sentence was consistent with the terms of the plea 8 agreement, this Court should dismiss Defendant's petition challenging his sentence. 9 10 11 12 Defendant claims the base offense level enhancement for his several prior aggravated B. Defendant's Base Offense Level and Criminal History Were Calculated Correctly.

13 felony convictions was incorrect and further that his criminal history category was inflated due 14 to improper double counting. (Def. Motion 5-5D.) These issues were not contested at 15 sentencing and the record clearly demonstrates that Defendant's base offense level and criminal 16 history category were calculated correctly. 17 In the instant matter, defendant pled guilty to a violation of Reentry After Deportation; 18 8 U.S.C. § 1326(a), enhanced by (b)(2). This enhancement increases the maximum prison term 19 to twenty years and is applied when an alien's removal is subsequent to a conviction for an 20 aggravated felony. 8 U.S.C. § 1326(b)(2). 21 Aggravated felonies are defined in 8 U.S.C. § 1101(43), including "a theft offense ... or

22 burglary offense for which the term of imprisonment at least one year;" 8 U.S.C. § 1101(43)(G). 23 The conviction must have had a term of imprisonment that was completed within the previous 24 15 years. 8 U.S.C. § 1101(43)(U). 25 Defendant was removed from the United States in 2001, subsequent to completion of his

26 prison sentence for his second residential burglary conviction. (PSR ¶¶ 13, 34.) As detailed in 27 the factual basis of the plea agreement and paragraph 19 of the PSR, defendant's (b)(2) 28 enhancement was based on the following prior convictions: Burglary in the 2nd Degree and
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1 Theft, Arizona Superior Court, Maricopa County, cause number CR89-06002, on or about 2 September 14, 1989; sentenced to 7.5 years prison concurrent, and Burglary in the 2nd Degree, 3 Arizona Superior Court, Maricopa County, cause number CR95-05611, on or about October 13, 4 1995, sentenced to 6.5 years prison.3 These convictions were part of the factual basis in the plea 5 agreement and were not contested at sentencing. (Exhibit 2.) 6 Under the applicable 2004 Sentencing Guidelines, a violation of 8 U.S.C. §1326(a) has

7 an initial base offense level of 8. United States Sentencing Guidelines (U.S.S.G.) §2L1.2(a). 8 Both of defendant's burglaries provide a 16 level increase under U.S.S.G. §2L1.2(b)(1)(A).4 The 9 16 level increase yields a base offense level of 24. (PSR ¶¶ 19, 23.) After a three level reduction 10 for Acceptance of Responsibility, defendant's final adjusted base offense level is 21. (U.S.S.G. 11 § 3E1.1; PSR ¶¶ 24, 75.) 12 Defendant's allegation that several of his prior convictions were double counted is

13 similarly without merit. Defendant's two 1982 Aggravated Assault convictions resulted in a 14 sentence of probation on May 28, 1983, which probation was revoked on February 11, 1986, 15 resulting in a prison sentence of 3.75 years. Defendant was released from prison on April 11, 16 1989. (PSR ¶ 31.) Three criminal history points were correctly assessed, for under U.S.S.G. §§ 17 4A1.1(1) and 4A1.2(e)(1), defendant served a sentence in excess of thirteen months that expired 18 less than 15 years prior to the date of violation in the instant matter; January 26, 2004. 19 On June 2, 1989, less than two months after his release from prison, defendant committed

20 a residential burglary and theft that garnered him three additional criminal history points. (PSR 21 ¶ 33.) On September 14, 1989, defendant was sentenced to 7.5 years prison for these 22 convictions. His sentence began on November 7, 1989, but he was temporarily released on 23 August 18, 1994, only to be returned to custody on November 13, 1995. (PSR ¶ 33.) Three 24 criminal history points were correctly assessed under U.S.S.G. §§ 4A1.1(1) and 4A1.2(e)(1). 25 Defendant's conviction for two counts of Aggravated Assault, Arizona Superior Court, 26 Maricopa County, cause number CR-12534, on or about May 28, 1983, would further have qualified 27
as an aggravated felony. (PSR ¶ 31.)
4 3

28 level increase under U.S.S.G. § 2L1.2(b)(1)(A).

Similarly, defendant's Aggravated Assault convictions also provide a basis for the 16 7

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Defendant received three additional criminal history points for his second residential

2 burglary conviction. Defendant committed this burglary on February 9, 1995, and was sentenced 3 on November 13, 1995, to 6.5 years prison. (PSR ¶ 34.) An individual receives criminal 4 history points for each prior sentence and sentences imposed in unrelated cases are counted 5 separately. §§ 4A1.1(1) and 4A1.2(a)(2). 6 Defendant received his final three additional criminal history points for a Marijuana

7 possession conviction for which he was sentenced to 1.5 years prison on March 3, 2004. (PSR 8 ¶ 35.) These convictions total 12 criminal history points, supporting a criminal history category 9 of V. 10 11 12 13 Defendant claims his counsel was ineffective for failing to object to sentencing C. Defense Counsel Was Not Ineffective for Failing to Object to Non-existent Sentencing Calculation Errors.

14 calculations errors that, as previously discussed, did not exist. Defendant further claims his 15 counsel should have objected to the plea agreement's sentencing provision that contained a 16 government promise to recommend a low end sentence. 17 To prevail on a claim of ineffective assistance, a defendant must show both that his Strickland v.

18 counsel's performance was deficient and that this prejudiced his case.

19 Washington, 466 U.S. 668, 688 (1984). In reviewing defense counsel's performance, a court 20 must "strongly presume that counsel's conduct was within the wide-range of reasonable 21 assistance, and that he exercised acceptable professional judgment in all significant decisions 22 made." Strickland, 466 U.S. at 689. "Review of counsel's performance is highly deferential and 23 there is a strong presumption that counsel's conduct fell within the wide range of reasonable 24 representation." United States v. Ferreira-Alameda, 815 F.2d 1251, 1253 (9th Cir.1986). 25 "[A]bsent misrepresentation or other impermissible conduct by state agents, . . . a voluntary plea 26 of guilty intelligently made in the light of the then applicable law does not become vulnerable 27 because later judicial decisions indicate that the plea rested on a faulty premise. Brady v. United 28
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1 States, 397 U.S. 742, 757 (1970) (plea to avoid death penalty not rendered involuntary by later 2 decision holding death penalty unconstitutional) (citation omitted). 3 It is still unclear in the Ninth Circuit whether a defendant may raise an ineffectiveness

4 challenge despite his plea agreement waiver of his right to appeal or file habeas petitions. 5 However, at the very least, even if counsel's alleged ineffectiveness is reviewed, it should be 6 a very limited review. The Ninth Circuit recently stated: 7 8 9 10 11 12 13 We leave open the possibility that Jeronimo might raise his ineffective assistance argument on federal habeas procedure, through a § 2255 motion, notwithstanding that Jeronimo's appeal waiver covered "all his waivable statutory rights to file a petition pursuant to 28 U.S.C. § 2255 challenging the length of his sentence." Although a defendant may waive the statutory right to file a § 2255 petition "challenging the length of his sentence," we do not decide whether such language would necessarily encompass a claim challenging the knowing and voluntary nature of the plea agreement (and accompanying waiver of § 2255 rights). Further, we do not decide whether even an express waiver of all § 2255 rights could be enforced to preclude an ineffective assistance claim implicating the voluntariness of the waiver itself. See United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994) (expressing "doubt" that plea agreement could waive such a claim, but declining to reach the issue).

14 United States v. Jeronimo, 398 F.3d 1149, 1156 n. 4 (9th Cir. 2005). 15 Thus, even if Defendant's ineffective assistance claims are reviewed, the only colorable

16 ineffectiveness claim would be one relating to counsel's performance affecting the voluntariness 17 of Defendant's plea agreement or waiver. Tollett v. Henderson, 411 U.S. 258, 267 (1973) 18 ("When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the 19 offense with which he is charged, he may not thereafter raise independent claims relating to the 20 deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may 21 only attack the voluntary and intelligent character of the guilty plea by showing that the advice 22 he received from counsel was [deficient].") 23 The Ninth Circuit has recognized this rule: "A defendant who pleads guilty upon the

24 advice of counsel may only attack the voluntary and intelligent character of his guilty plea by 25 showing that the advice he received from counsel was not within the range of competence 26 demanded of attorneys in criminal cases." Jeronimo, 398 F.3d at 1155, citing Signori, 844 F.2d 27 at 638 (internal citation omitted). "[A] defendant who pleads guilty in reliance on his or her 28 attorney's `gross mischaracterization of the likely outcome' of his or her case may be entitled
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1 to withdraw the plea on ineffective assistance of counsel grounds." Jeronimo, id., citing Iaea 2 v. Sunn, 800 F.2d 861, 865 (9th Cir. 1986); see also United States v. Michlin, 34 F.3d 896, 899 3 (9th Cir. 1994) ("We have held that an erroneous prediction by a defense attorney concerning 4 sentencing does not entitle a defendant to challenge his guilty plea, although an exception might 5 be made in a case of gross mischaracterization of the likely outcome.") 6 Defendant alleges his counsel failed to make objections to his criminal history category

7 and base offense level. As previously discussed, there were no objections to present. 8 Defendant further claims his counsel failed to object to the provision in the plea

9 agreement that the government would recommend a sentence. As detailed in the plea agreement 10 under the heading "Agreements Regarding Sentencing:" 11 12 Pursuant to Fed. R. Crim. P. 11(c)(1)(B), the United States will recommend a sentence of imprisonment at the low end of the applicable guideline. There are no other agreements regarding Defendant's sentence in this case.

13 (Exhibit 2.) 14 Presumably defendant is indicating the government was somehow required to stipulate

15 to a particular sentence. There was no such requirement, and as will be demonstrated later in 16 this response, the plea agreement's sentencing provisions were thoroughly discussed with 17 defendant by his counsel and the court at his change of plea. 18 Furthermore, defendant has not shown that his counsel provided deficient advice that

19 rendered his plea involuntary. The record, on the whole, demonstrates that Defendant able to 20 communicate effectively with his counsel, that he was satisfied with his attorney's advice, and 21 that he pled guilty knowingly and voluntarily. When he pled guilty, defendant affirmed that he 22 signed the plea agreement after reviewing it with his lawyer, who read it to him in Spanish. 23 (RT 6/28/04 5-6.) The court confirmed defendant was able to effectively communicate with his 24 attorney in his native language, and that his attorney had the ability to answer his questions. (RT 25 06/28/04 6.) Defendant further confirmed that no one had threatened or coerced him into 26 entering into the plea agreement. (RT 6/28/04 7.) 27 The court also inquired of defendant if his counsel had discussed the Sentencing

28 Guidelines, the maximum fine for the charge, and the required special assessment, to which
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1 defendant answered affirmatively. (RT 6/28/04 8-9.) The court confirmed with defendant that 2 his plea agreement did not contain any provision as to exactly what the sentencing range would 3 be, indicating defendant's discussions with his attorney regarding this were advisory only, and 4 that prior to sentencing, a presentence report would be prepared which would detail a sentencing 5 range per the Sentencing Guidelines. (RT 6/28/04 9-11.) The court further reviewed the 6 elements of the offense and the factual basis for the charge with defendant. Defendant 7 confirmed that he had discussed the elements with his attorney and that he understood them. 8 (RT 6/28/04 14-16, 19-20.) In fact, defendant indicated that after discussions with his counsel, 9 defendant believed his sentencing range was somewhere between 46 and 87 months, and in fact 10 defendant was sentenced to 87 months. (RT 06/28/04 10; RT 10/22/04 13.) Moreover, the 11 district court further found that Defendant's guilty plea was knowing and voluntary. (RT 12 03/22/05 22-23.) "Solemn declarations in open court carry a strong presumption of verity." 13 United States v. Rubalcaba, 811 F.2d 491, 494 (9th Cir.1986) (in rejecting later claim of 14 involuntariness of guilty plea) 15 Lastly, at sentencing Defendant received the substantial benefits he bargained for as

16 embodied in his plea agreement. In exchange for his plea of guilty to Count 3, the government 17 agreed to recommend a low end sentence and further to dismiss Counts 1 and 2 of the 18 Indictment; violations of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); Felon in Possession of Firearm, 19 and 18 U.S.C. §§ 922(g)(5) and 924(a)(2); Illegal Alien in Possession of a Firearm. (Exhibits 20 1 and 2.) Both the recommendation and the dismissal of Counts 1 and 2 are significant. As 21 detailed in paragraph 87 of the Presentence Report: 22 23 24 25 26 27 28 Had the defendant pleaded guilty to Counts 1 and 2 of the indictment, statutorily he would have been subjected to up to 10 years imprisonment, for each count, and up to 20 years imprisonment for Count 1, the count of conviction. Counts 1 and 2 would have been grouped as they involve the same societal harm, but Count 3 would not have been grouped as it represents a different societal harm. Therefore, Group 1 (Counts 1 and 2) is the Group with the highest offense level of 24, §2K2.1(a)(2), and with a four-level increase under §2K2.1(b)(5) for possession of any firearm in connection with another felony offense, the resulted highest offense level is 28. Increasing the offense level 28 by one level for 1 ½ Units after including Count 3, results in an offense level 29. A three-level decrease for acceptance of Responsibility results in a Total Offense Level 26, which combined with a Criminal History Category V, yields an imprisonment guideline range of 110 to 137 months, and a fine range of $12,500 to $125,000.
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1 Defendant has failed to demonstrate that counsel was deficient in failing to object to 2 sentencing calculations that clearly were not in error, much less the statutorily authorized 3 sentencing provisions of the plea agreement. Fed. R. Crim. P. 11(c)(1)(B). Because the outcome 4 would not have differed, the defendant has not established prejudice. Strickland, 466 U.S. at 5 694 (To show prejudice, "[t]he defendant must show that there is a reasonable probability that, 6 but for counsel's unprofessional errors, the result of the proceeding would have been different."). 7 D. 8 During the plea colloquy, the court inquired of defendant whether his counsel had 9 discussed the Sentencing Guidelines, the maximum fine for the charge, and the required special 10 assessment, to which defendant answered affirmatively. (RT 6/28/04 8-9.) The court asked 11 defendant if he believed he had an agreement a particular sentence, to which defendant indicated 12 he believed it was somewhere between 46 to 87 months. (RT 06/28/04 10.) The court asked 13 defendant where this range was located in the plea agreement and after defendant indicated he 14 did not know where it was, the following discussion occurred: 15 16 17 THE DEFENDANT: Yes. 18 19 20 THE DEFENDANT: Yes. 21 22 23 24 25 26 27 28
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Defendant understood the sentencing provisions of his plea agreement.

THE COURT: I want you to understand, Mr. Miranda, that your Plea Agreement does not include any provision about what your sentencing range will be. Do you understand that?

THE COURT: And I talked with you before about what your lawyer may have discussed with you (an estimated sentencing range). But that's not in your Plea Agreement. Do you understand that?

THE COURT: And when it comes time to know what the sentencing range is, and we'll talk about that a little later, but at some time there will be a presentence report prepared by the probation office, and it will include a guideline sentencing range, a minimum number of months and a maximum number of months. And there are various factors that go into that. Among other things, your criminal history, whatever the offense level is for this particular crime, et cetera. And you can object to the guideline range that's in the presentence report, the Government can object. And the Court could also make a departure, go below the low end or go above the high end of the guideline range in the presentence report. And if a judge is going to do that they'd have to tell you and the Government, give you both an opportunity to be heard about that. Do you understand that?

1 2 3 4 5

THE DEFENDANT: Yes. THE COURT: In your Plea Agreement, it says on page 2 that the Government is going to recommend that you get the low end of the guideline range. An wherever in your Plea Agreement it says the Government is going to recommend something, the Government has an obligation to recommend that. But a court does not have to accept the Government's recommendation in this case. Do you understand that? THE DEFENDANT: Yes.

6 7 8 THE DEFENDANT: Yes. 9 10 11 THE DEFENDANT: Yes. 12 (RT 06/28/04 10-12.) 13 In this discussion, the court confirmed with defendant that his plea agreement did not 14 contain any provision as to exactly what the sentencing range would be, indicating defendant's 15 discussions with his attorney regarding a potential sentence were advisory only, and that prior 16 to sentencing, a presentence report would be prepared which would detail a sentencing range per 17 the Sentencing Guidelines. The court further confirmed with defendant that the plea agreement 18 states the government will recommend a sentence at the low end of the guideline range, the court 19 is free to accept or reject that recommendation, and that there are no other agreements regarding 20 sentencing. For defendant now to claim he did not understand the sentencing provisions of the 21 plea agreement is clearly self-serving and without merit. Again, "Solemn declarations in open 22 23 Cir.1986). 24 25 IV. CONCLUSION 26 For all of the foregoing reasons, the Court should deny the defendant's Motion to Vacate, 27 Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. 28
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THE COURT: And if the Court doesn't accept the governments recommendation, that would not allow you to get out of the Plea Agreement. Do you understand that?

THE COURT: And on page 2 of your Plea Agreement, line 27, it says this: There are no other agreements regarding defendant's sentence in this case. Do you understand that?

court carry a strong presumption of verity." United States v. Rubalcaba, 811 F.2d 491, 494 (9th

1 2 3 4 5 6 7

Respectfully submitted this 7th day of August, 2006. PAUL K. CHARLTON United States Attorney District of Arizona S/ Michael A. Lee MICHAEL A. LEE Special Assistant U.S. Attorney CERTIFICATE OF SERVICE

8 I hereby certify that on August 7, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF system for filing. Further I certify that a copy of the 10 foregoing was mailed via U.S. Mail to defendant Gregorio Miranda-Martinez. 9 11 S/Michael A. Lee 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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