Free Response to Motion - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

PAUL K. CHARLTON United States Attorney District of Arizona DAVID A. PIMSNER Assistant U.S. Attorney Arizona State Bar No. 007480 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America v. Plaintiff, CR-04-0328-PHX-NVW CV-05-2472-PHX-NVW (MEA)
GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE

Guadalupe Arredondo-Zazueta, Movant.

The United States of America, by and through undersigned counsel, hereby responds to defendant's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. §2255. Undersigned counsel requests that this Court deny the defendant's motion on the grounds that the defendant is barred from collaterally attacking his sentence based upon a written waiver in the plea agreement. Additionally, the defendant's claims lack any factual or legal merit. This response is supported by the following Memorandum of Points and Authorities. Respectfully submitted this 20th day of March, 2006.

PAUL K. CHARLTON United States Attorney District of Arizona /s David A. Pimsner DAVID A. PIMSNER Assistant U.S. Attorney

Case 2:04-cr-00328-NVW

Document 198

Filed 03/20/2006

Page 1 of 18

1 2 3 4 5 I. POST-SENTENCING PROCEDURAL HISTORY On June 20, 2005, the defendant was sentenced to the Bureau of Prisons for a period of 60
1/

MEMORANDUM OF POINTS AND AUTHORITIES

6 months. Judgement was entered on June 21, 2005. (CR 182.)

On August 16, 2005, the

7 defendant filed a Motion for Time Reduction by an Inmate in Federal Custody and a Notice of 8 Motion to Vacate under 28 U.S.C. 2255. (CR 189 and 190.) On October 11, 2005, the 9 Honorable Neil V. Wake, United States District Court Judge, dismissed the motion with leave 10 to amend allowing the defendant thirty days to file an amended motion pursuant to §2255. 11 (CR192.) On October 24, 2005, the defendant filed an Amended Motion to Set Aside, Vacate 12 or Correct Sentence pursuant to 28 U.S.C. § 2255. (CR 193.) He is currently confined at CCA13 Cibola County Correctional Center in Milan, New Mexico. 14 15 II. ISSUES PRESENTED Defendant claims that (1) his conviction was obtained by a coerced confession; (2) he was

16 denied the right to appeal; and (3) his counsel was ineffective. 17 18 III. FACTS The defendant was charged with conspiracy to possess with the intent to distribute 1,000

19 kilograms or more of marijuana and possession of firearms in furtherance of a drug trafficking 20 offense which occurred on April 1, 2004 in the District of Arizona. 21 Undercover agents with the Drug Enforcement Administration, posing as drug buyers,

22 negotiated to purchase 300 pounds of marijuana from Jorge Ivan Valdez-Orduo and Gilberto 23 Martinez. In order to complete the transaction, undercover agents provided Jorge Ivan Valdez24 25 26 The abbreviation "CR" refers to the Clerk's Record and will be followed by the pertinent document number. References to the presentence report (PSR) are followed by the 27 appropriate paragraph numbers.
1/

28

2

Case 2:04-cr-00328-NVW

Document 198

Filed 03/20/2006

Page 2 of 18

1 Orduo and Gilberto Martinez with an undercover vehicle. Other law enforcement agents then 2 conducted surveillance on the undercover vehicle. 3 Agents observed Jorge Ivan Valdez-Orduo and Gilberto Martinez meet with the defendant

4 and Jose Ricardo Lopez-Vasquez. During the meeting, Jorge Ivan Valdez-Orduo and Gilberto 5 Martinez provided the undercover vehicle to the defendant and Jose Ricardo Lopez-Vasquez. 6 Agents then followed the undercover vehicle to West North Lane in Glendale, Arizona. Agents 7 later observed the undercover vehicle leave the residence at 6508 West North Lane and 8 continued to follow the undercover vehicle until it met up with Jorge Ivan Valdez-Orduo and 9 Gilberto Martinez. At that time, Jorge Ivan Valdez-Orduo and Gilberto Martinez entered the 10 undercover vehicle and Jose Ricardo Lopez-Vasquez returned to a separate vehicle. Both

11 vehicles traveled in tandem towards the location where the undercover agents were waiting. 12 Prior to reaching that location, other law enforcement agents stopped the vehicles and 13 approximately 154 pounds of marijuana was seized from the undercover vehicle in which the 14 defendant, Jorge Ivan Valdez-Orduo and Gilberto Martinez were riding. (PSR ¶ 5-12.) 15 Other agents continued to conduct surveillance at 6508 West North Lane; Glendale, Arizona

16 until a search warrant could be obtained. Later, agents observed Rodolfo Quintero-Duarte leave 17 the residence in a vehicle. The vehicle was stopped and approximately 206 pounds of marijuana 18 was seized from the vehicle along with a Ruger 9mm Handgun. (PSR ¶ 14.) 19 Thereafter, agents obtained a search warrant for 6508 West North Lane and discovered

20 approximately 2,230 pounds of marijuana along with an AR-15 Rifle and a Chinese AK-47 21 Rifle. (PSR ¶ 15.) 22 On April 1, 2005, the defendant entered a plea of guilty before the trial court pursuant to

23 a written plea agreement. The defendant pled guilty to a lesser included offense of Count 1 of 24 the Superseding Indictment: Conspiracy to Possess with the Intent to Distribute 100 Kilograms 25 or More of Marijuana. The plea agreement stipulated that quantity of marijuana the defendant 26 conspired to possess for distribution was between 100 and 400 kilograms. Additionally, the plea 27 stipulated to a three level reduction for acceptance of responsibility and an agreement by the 28
3

Case 2:04-cr-00328-NVW

Document 198

Filed 03/20/2006

Page 3 of 18

1 government and that the defendant was not eligible for "Safety Valve." Furthermore, the plea 2 stipulated to a 60 month sentence of imprisonment. In exchange for his guilty pleas pursuant 3 to these terms, the government agreed to dismiss Count 3. The defendant also agreed to waive 4 any right to appeal or collaterally attack any matter pertaining to the prosecution and sentence 5 if the sentence imposed was consistent with the terms of the agreement. (CR 165 and PSR ¶ 4.) 6 On June 20, 2005, the defendant was sentenced to 60 months incarceration followed by four

7 years of supervised release. The sentence imposed was consistent with the stipulated terms of 8 the written plea agreement. (CR 182.) 9 10 11 III. POINTS AND AUTHORITIES A. Defendant's motion is timely. The Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110

12 Stat. 1214, became effective on April 24, 1996. It established both procedural and substantive 13 limits on the filing of motions for collateral relief by prisoners under 28 U.S.C. § 2255. 14 Particularly, in section 105 of AEDPA, Congress established a one-year period of limitations for 15 such motions. Having been filed within one year of the date upon which his conviction became 16 final, defendant's motion is therefore timely. 17 18 B. The Defendant Expressly Waived His Right to Collaterally Attack the Sentence. In the written plea agreement, the defendant waived his appeal rights and the right to

19 collaterally attack any matter pertaining to his prosecution or sentence. An express waiver of 20 the right to appeal in a negotiated plea of guilty is enforceable if knowingly and voluntarily 21 made, and not in violation of due process or public policy. United States v. Bolinger, 940 F.2d. 22 478, 480 (9th Cir. 1991); United States v. Navarro-Botello, 912 F.2d 318, 319 (9th Cir. 1990). 23 A defendant may also specifically waive the statutory right to file a § 2255 motion. United 24 States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993). A review of the written plea agreement 25 establishes that, with the assistance of counsel, the defendant had read and understood the 26 provisions of the plea agreement; had been advised of the nature of the charges against him, his 27 constitutional rights, and sentencing possibilities; entered his guilty plea without force, threats, 28
4

Case 2:04-cr-00328-NVW

Document 198

Filed 03/20/2006

Page 4 of 18

1 assurances or promises not contained within the agreement; and finally, that he was satisfied that 2 his attorney had represented him in a competent manner. Additionally, at the change of plea 3 proceeding and at sentencing, the district court made a finding that the defendant knowingly, 4 voluntarily and intelligently waived his right to appeal or collaterally attack his conviction and 5 sentence. (CR 165 and 182.) 6 It is appropriate for a court to examine the plain language of a waiver to determine its scope. 7 United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996); See e.g., United States v. 8 Johnson, 67 F.3d 200 (9th Cir. 1995). In determining whether a plea agreement waives the right 9 to appeal or collaterally attack a judgment and sentence, courts apply contract principles, 10 including the parol evidence rule, to examine and enforce the plain language of the contract, or 11 plea agreement, and do not look to extrinsic evidence to interpret the terms of an unambiguous 12 written instrument. United States v. Nunez, 223 F.3d 956, 958 (9th Cir. 2000)(citing Wilson 13 Arlington Co. v. Prudential Ins. Co. of Am., 912 F.2d 366, 370 (9th Cir. 1990)). 14 Defendant's plea agreement contained a broad and unambiguous waiver of his appeal

15 rights. Specifically, defendant agreed to the following: 16 17 18 19 20 21 22 23 24 25 26 27 28
5

WAIVER OF DEFENSES AND APPEAL RIGHTS 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. Defendant raises no challenge to the voluntariness or validity of his plea agreement.

Case 2:04-cr-00328-NVW

Document 198

Filed 03/20/2006

Page 5 of 18

1 Defendant's express waiver therefore should be enforced. Accordingly, defendant's challenge 2 to his sentence in this § 2255 motion should be deemed waived. 3 4 C. Defendant's Motion is Meritless. It is the government's position that defendant's motion should be dismissed without reaching

5 the merits as set forth in Section B above. However, in the event this Court should consider the 6 merits of defendant's motion, it must still fail. 7 8 1. The Defendant's Conviction was Not Based on a Coerced Confession.

The defendant claims that his conviction was based on a coerced confession. The defendant

9 only supports this claim by stating that "the prosecutor not give me time reduction, not help me 10 in my sentence." At the time of the defendant's arrest, he was advised of his Miranda Warnings 11 and he voluntarily made a statement. In his statement, the defendant stated that Valdez-Orduno 12 offered him $1,000 to assist in delivering some stuff to Scottsdale. He admitted that he was 13 shown a substantial amount of marijuana and could smell it in the vehicle. He told the agents 14 that the marijuana was being stored near 69th Avenue and Peoria, (PSR ¶ 19.) However, the 15 defendant does not refer to theses post arrest statements as a basis for his claim of coercion. 16 The defendant does claim that the prosecutor did not assist him with a time reduction. While

17 the case was pending, the defendant did submit to a proffer with the government. This proffer 18 was conducted pursuant to a written agreement between the government, the defendant and his 19 counsel. (See Exhibit A.) However, after the proffer was conducted , the defendant refused to 20 testify against his co-conspirators and he did not enter a cooperation agreement with the 21 government. Accordingly, because the defendant did not provide substantial assistance to the 22 government, he was not entitled to any reduction pursuant to 18 U.S.C. § 3553(e), 28 U.S.C. § 23 994(n), and U.S.S.G. § 5K1.1. 24 Additionally, no statements made by the defendant during the proffer were used against him

25 in this prosecution. The defendant was convicted based on the evidenced gathered by law 26 enforcement on April 1, 2004. Through observation of law enforcement, the evidence

27 established that the defendant took control of the undercover vehicle from co-conspirators and 28
6

Case 2:04-cr-00328-NVW

Document 198

Filed 03/20/2006

Page 6 of 18

1 traveled to a stash house. Subsequently he was stopped in the vehicle which contained over 150 2 pounds of marijuana. Even without his post arrest statement or proffer there was ample evidence 3 to convict the defendant. Accordingly, there is no evidence that the conviction was based on a 4 coerced confession. 5 6 2. The Defendant Knowingly and Voluntarily Waived His Right to Appeal.

As previously discussed in Section B of this pleading, the defendant expressly waived his

7 appeal rights and the right to collaterally attack any matter pertaining to his prosecution or 8 sentence as long as the sentence was consistent with the terms of the plea agreement. The 9 defendant received the stipulated 60 month sentence. The District Court found that the 10 defendant knowingly and voluntarily waived his right to appeal or collaterally attack this matter. 11 Accordingly, defendant's challenge to his sentence in this § 2255 motion should be deemed 12 waived. 13 14 3. Defendant's Counsel Was Not Ineffective.

The defendant claims he was denied effective assistance of counsel. In support of this claim,

15 the defendant states that "my attorney not help me, because in every court I see a low effective 16 assistance of him." The defendant cites no specific instances of ineffectiveness. To prevail on 17 a claim of ineffective assistance, a defendant must show both that his counsel's performance was 18 deficient and that this prejudiced his case. Strickland v. Washington, 466 U.S. 668, 688 (1984). 19 In reviewing defense counsel's performance, a court must "strongly presume that counsel's 20 conduct was within the wide-range of reasonable assistance, and that he exercised acceptable 21 professional judgment in all significant decisions made." Strickland, 466 U.S. at 689. 22 Defendant's claim of ineffective assistance relates only to counsel's failure to file a timely 23 appeal a claim which is not supported by any credible evidence. 24 The original charges against the defendant involved conspiracy to possess with the intent

25 to distribute 1,000 kilograms or more of marijuana and possession of firearms in furtherance of 26 a drug trafficking offense. Those charges required a mandatory minimum of ten and five years 27 respectively which by law were required to be imposed consecutively. Accordingly, the 28
7

Case 2:04-cr-00328-NVW

Document 198

Filed 03/20/2006

Page 7 of 18

1 defendant was facing a mandatory minimum sentence of fifteen years.

Defense counsel

2 nevertheless was able to negotiate a plea agreement which allowed the defendant to plead guilty 3 to a lesser included offense of Count 1 of the Superseding Indictment: Conspiracy to Possess 4 with the Intent to Distribute 100 Kilograms or More of Marijuana and a stipulation to a three 5 level reduction for acceptance of responsibility . Additionally, counsel was able to negotiate a 6 plea which called for the dismissal of the possession of firearms in furtherance of a drug 7 trafficking offense. The defendant benefitted significantly from this term because this charge 8 carries a mandatory five year consecutive sentence. Furthermore, the plea also stipulated to a 9 substantially reduced sentence of 60 months. Defendant received the full benefit of the plea 10 agreement and was sentenced to the stipulated sentence. 11 The record demonstrates that the defendant received effective assistance of counsel.

12 Defendant's counsel submitted an affidavit detailing that he fully advised the defendant of the 13 constitutional and other rights of an accused, the factual basis for and the nature of the offense 14 to which the guilty plea was entered, possible defenses, and the consequences of the guilty plea. 15 (See Exhibit B.) Defense counsel further states that the defendant entered the plea knowingly, 16 voluntarily and not as a result of any force, threats or promises not contained in the written plea 17 agreement. Additionally, counsel discussed with the defendant and the defendant understood that 18 he was waiving his right to appeal or collaterally attack his conviction or sentence as long as the 19 sentence was consistent with the terms of the plea agreement and that the sentence the defendant 20 received was consistent with the stipulated terms of the plea agreement. 21 Accordingly, there is no evidence of ineffective assistance of counsel to support his claims

22 and the defendant's valid waiver of his right to appeal or collaterally attack this matter must be 23 enforced. 24 25 IV. CONCLUSION For all of the foregoing reasons, the Motion of Arredondo-Zazueta to Vacate, Set Aside,

26 or Correct Sentence pursuant to 28 U.S.C. § 2255 should be dismissed. 27 28
8

Case 2:04-cr-00328-NVW

Document 198

Filed 03/20/2006

Page 8 of 18

1 2 3 4 5 6 7 8

Respectfully submitted this 20th day of March, 2006. PAUL K. CHARLTON United States Attorney District of Arizona

/s David A. Pimsner DAVID A. PIMSNER Assistant U.S. Attorney

certify that 9 I hereby the attachedon March 20, 2006, I served document by U.S. Postal mail on the following, who is not 10 a registered participant of the CM/ECF system:

11 Guadalupe Arredondo Zazueta 12 #82039-008 County Correctional Center CCA Cibola 13 P.O. Box 3540 Milan, NM 87021 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
9

Case 2:04-cr-00328-NVW

Document 198

Filed 03/20/2006

Page 9 of 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

PAUL K. CHARLTON United States Attorney District of Arizona DAVID A. PIMSNER Assistant U.S. Attorney Arizona State Bar No. 007480 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America v. Plaintiff, CR-04-0328-PHX-NVW CV-05-2472-PHX-NVW (MEA)
GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE

Guadalupe Arredondo-Zazueta, Movant.

The United States of America, by and through undersigned counsel, hereby responds to defendant's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. §2255. Undersigned counsel requests that this Court deny the defendant's motion on the grounds that the defendant is barred from collaterally attacking his sentence based upon a written waiver in the plea agreement. Additionally, the defendant's claims lack any factual or legal merit. This response is supported by the following Memorandum of Points and Authorities. Respectfully submitted this 20th day of March, 2006.

PAUL K. CHARLTON United States Attorney District of Arizona /s David A. Pimsner DAVID A. PIMSNER Assistant U.S. Attorney

Case 2:04-cr-00328-NVW

Document 198

Filed 03/20/2006

Page 10 of 18

1 2 3 4 5 I. POST-SENTENCING PROCEDURAL HISTORY On June 20, 2005, the defendant was sentenced to the Bureau of Prisons for a period of 60
1/

MEMORANDUM OF POINTS AND AUTHORITIES

6 months. Judgement was entered on June 21, 2005. (CR 182.)

On August 16, 2005, the

7 defendant filed a Motion for Time Reduction by an Inmate in Federal Custody and a Notice of 8 Motion to Vacate under 28 U.S.C. 2255. (CR 189 and 190.) On October 11, 2005, the 9 Honorable Neil V. Wake, United States District Court Judge, dismissed the motion with leave 10 to amend allowing the defendant thirty days to file an amended motion pursuant to §2255. 11 (CR192.) On October 24, 2005, the defendant filed an Amended Motion to Set Aside, Vacate 12 or Correct Sentence pursuant to 28 U.S.C. § 2255. (CR 193.) He is currently confined at CCA13 Cibola County Correctional Center in Milan, New Mexico. 14 15 II. ISSUES PRESENTED Defendant claims that (1) his conviction was obtained by a coerced confession; (2) he was

16 denied the right to appeal; and (3) his counsel was ineffective. 17 18 III. FACTS The defendant was charged with conspiracy to possess with the intent to distribute 1,000

19 kilograms or more of marijuana and possession of firearms in furtherance of a drug trafficking 20 offense which occurred on April 1, 2004 in the District of Arizona. 21 Undercover agents with the Drug Enforcement Administration, posing as drug buyers,

22 negotiated to purchase 300 pounds of marijuana from Jorge Ivan Valdez-Orduo and Gilberto 23 Martinez. In order to complete the transaction, undercover agents provided Jorge Ivan Valdez24 25 26 The abbreviation "CR" refers to the Clerk's Record and will be followed by the pertinent document number. References to the presentence report (PSR) are followed by the 27 appropriate paragraph numbers.
1/

28

2

Case 2:04-cr-00328-NVW

Document 198

Filed 03/20/2006

Page 11 of 18

1 Orduo and Gilberto Martinez with an undercover vehicle. Other law enforcement agents then 2 conducted surveillance on the undercover vehicle. 3 Agents observed Jorge Ivan Valdez-Orduo and Gilberto Martinez meet with the defendant

4 and Jose Ricardo Lopez-Vasquez. During the meeting, Jorge Ivan Valdez-Orduo and Gilberto 5 Martinez provided the undercover vehicle to the defendant and Jose Ricardo Lopez-Vasquez. 6 Agents then followed the undercover vehicle to West North Lane in Glendale, Arizona. Agents 7 later observed the undercover vehicle leave the residence at 6508 West North Lane and 8 continued to follow the undercover vehicle until it met up with Jorge Ivan Valdez-Orduo and 9 Gilberto Martinez. At that time, Jorge Ivan Valdez-Orduo and Gilberto Martinez entered the 10 undercover vehicle and Jose Ricardo Lopez-Vasquez returned to a separate vehicle. Both

11 vehicles traveled in tandem towards the location where the undercover agents were waiting. 12 Prior to reaching that location, other law enforcement agents stopped the vehicles and 13 approximately 154 pounds of marijuana was seized from the undercover vehicle in which the 14 defendant, Jorge Ivan Valdez-Orduo and Gilberto Martinez were riding. (PSR ¶ 5-12.) 15 Other agents continued to conduct surveillance at 6508 West North Lane; Glendale, Arizona

16 until a search warrant could be obtained. Later, agents observed Rodolfo Quintero-Duarte leave 17 the residence in a vehicle. The vehicle was stopped and approximately 206 pounds of marijuana 18 was seized from the vehicle along with a Ruger 9mm Handgun. (PSR ¶ 14.) 19 Thereafter, agents obtained a search warrant for 6508 West North Lane and discovered

20 approximately 2,230 pounds of marijuana along with an AR-15 Rifle and a Chinese AK-47 21 Rifle. (PSR ¶ 15.) 22 On April 1, 2005, the defendant entered a plea of guilty before the trial court pursuant to

23 a written plea agreement. The defendant pled guilty to a lesser included offense of Count 1 of 24 the Superseding Indictment: Conspiracy to Possess with the Intent to Distribute 100 Kilograms 25 or More of Marijuana. The plea agreement stipulated that quantity of marijuana the defendant 26 conspired to possess for distribution was between 100 and 400 kilograms. Additionally, the plea 27 stipulated to a three level reduction for acceptance of responsibility and an agreement by the 28
3

Case 2:04-cr-00328-NVW

Document 198

Filed 03/20/2006

Page 12 of 18

1 government and that the defendant was not eligible for "Safety Valve." Furthermore, the plea 2 stipulated to a 60 month sentence of imprisonment. In exchange for his guilty pleas pursuant 3 to these terms, the government agreed to dismiss Count 3. The defendant also agreed to waive 4 any right to appeal or collaterally attack any matter pertaining to the prosecution and sentence 5 if the sentence imposed was consistent with the terms of the agreement. (CR 165 and PSR ¶ 4.) 6 On June 20, 2005, the defendant was sentenced to 60 months incarceration followed by four

7 years of supervised release. The sentence imposed was consistent with the stipulated terms of 8 the written plea agreement. (CR 182.) 9 10 11 III. POINTS AND AUTHORITIES A. Defendant's motion is timely. The Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110

12 Stat. 1214, became effective on April 24, 1996. It established both procedural and substantive 13 limits on the filing of motions for collateral relief by prisoners under 28 U.S.C. § 2255. 14 Particularly, in section 105 of AEDPA, Congress established a one-year period of limitations for 15 such motions. Having been filed within one year of the date upon which his conviction became 16 final, defendant's motion is therefore timely. 17 18 B. The Defendant Expressly Waived His Right to Collaterally Attack the Sentence. In the written plea agreement, the defendant waived his appeal rights and the right to

19 collaterally attack any matter pertaining to his prosecution or sentence. An express waiver of 20 the right to appeal in a negotiated plea of guilty is enforceable if knowingly and voluntarily 21 made, and not in violation of due process or public policy. United States v. Bolinger, 940 F.2d. 22 478, 480 (9th Cir. 1991); United States v. Navarro-Botello, 912 F.2d 318, 319 (9th Cir. 1990). 23 A defendant may also specifically waive the statutory right to file a § 2255 motion. United 24 States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993). A review of the written plea agreement 25 establishes that, with the assistance of counsel, the defendant had read and understood the 26 provisions of the plea agreement; had been advised of the nature of the charges against him, his 27 constitutional rights, and sentencing possibilities; entered his guilty plea without force, threats, 28
4

Case 2:04-cr-00328-NVW

Document 198

Filed 03/20/2006

Page 13 of 18

1 assurances or promises not contained within the agreement; and finally, that he was satisfied that 2 his attorney had represented him in a competent manner. Additionally, at the change of plea 3 proceeding and at sentencing, the district court made a finding that the defendant knowingly, 4 voluntarily and intelligently waived his right to appeal or collaterally attack his conviction and 5 sentence. (CR 165 and 182.) 6 It is appropriate for a court to examine the plain language of a waiver to determine its scope. 7 United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996); See e.g., United States v. 8 Johnson, 67 F.3d 200 (9th Cir. 1995). In determining whether a plea agreement waives the right 9 to appeal or collaterally attack a judgment and sentence, courts apply contract principles, 10 including the parol evidence rule, to examine and enforce the plain language of the contract, or 11 plea agreement, and do not look to extrinsic evidence to interpret the terms of an unambiguous 12 written instrument. United States v. Nunez, 223 F.3d 956, 958 (9th Cir. 2000)(citing Wilson 13 Arlington Co. v. Prudential Ins. Co. of Am., 912 F.2d 366, 370 (9th Cir. 1990)). 14 Defendant's plea agreement contained a broad and unambiguous waiver of his appeal

15 rights. Specifically, defendant agreed to the following: 16 17 18 19 20 21 22 23 24 25 26 27 28
5

WAIVER OF DEFENSES AND APPEAL RIGHTS 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. Defendant raises no challenge to the voluntariness or validity of his plea agreement.

Case 2:04-cr-00328-NVW

Document 198

Filed 03/20/2006

Page 14 of 18

1 Defendant's express waiver therefore should be enforced. Accordingly, defendant's challenge 2 to his sentence in this § 2255 motion should be deemed waived. 3 4 C. Defendant's Motion is Meritless. It is the government's position that defendant's motion should be dismissed without reaching

5 the merits as set forth in Section B above. However, in the event this Court should consider the 6 merits of defendant's motion, it must still fail. 7 8 1. The Defendant's Conviction was Not Based on a Coerced Confession.

The defendant claims that his conviction was based on a coerced confession. The defendant

9 only supports this claim by stating that "the prosecutor not give me time reduction, not help me 10 in my sentence." At the time of the defendant's arrest, he was advised of his Miranda Warnings 11 and he voluntarily made a statement. In his statement, the defendant stated that Valdez-Orduno 12 offered him $1,000 to assist in delivering some stuff to Scottsdale. He admitted that he was 13 shown a substantial amount of marijuana and could smell it in the vehicle. He told the agents 14 that the marijuana was being stored near 69th Avenue and Peoria, (PSR ¶ 19.) However, the 15 defendant does not refer to theses post arrest statements as a basis for his claim of coercion. 16 The defendant does claim that the prosecutor did not assist him with a time reduction. While

17 the case was pending, the defendant did submit to a proffer with the government. This proffer 18 was conducted pursuant to a written agreement between the government, the defendant and his 19 counsel. (See Exhibit A.) However, after the proffer was conducted , the defendant refused to 20 testify against his co-conspirators and he did not enter a cooperation agreement with the 21 government. Accordingly, because the defendant did not provide substantial assistance to the 22 government, he was not entitled to any reduction pursuant to 18 U.S.C. § 3553(e), 28 U.S.C. § 23 994(n), and U.S.S.G. § 5K1.1. 24 Additionally, no statements made by the defendant during the proffer were used against him

25 in this prosecution. The defendant was convicted based on the evidenced gathered by law 26 enforcement on April 1, 2004. Through observation of law enforcement, the evidence

27 established that the defendant took control of the undercover vehicle from co-conspirators and 28
6

Case 2:04-cr-00328-NVW

Document 198

Filed 03/20/2006

Page 15 of 18

1 traveled to a stash house. Subsequently he was stopped in the vehicle which contained over 150 2 pounds of marijuana. Even without his post arrest statement or proffer there was ample evidence 3 to convict the defendant. Accordingly, there is no evidence that the conviction was based on a 4 coerced confession. 5 6 2. The Defendant Knowingly and Voluntarily Waived His Right to Appeal.

As previously discussed in Section B of this pleading, the defendant expressly waived his

7 appeal rights and the right to collaterally attack any matter pertaining to his prosecution or 8 sentence as long as the sentence was consistent with the terms of the plea agreement. The 9 defendant received the stipulated 60 month sentence. The District Court found that the 10 defendant knowingly and voluntarily waived his right to appeal or collaterally attack this matter. 11 Accordingly, defendant's challenge to his sentence in this § 2255 motion should be deemed 12 waived. 13 14 3. Defendant's Counsel Was Not Ineffective.

The defendant claims he was denied effective assistance of counsel. In support of this claim,

15 the defendant states that "my attorney not help me, because in every court I see a low effective 16 assistance of him." The defendant cites no specific instances of ineffectiveness. To prevail on 17 a claim of ineffective assistance, a defendant must show both that his counsel's performance was 18 deficient and that this prejudiced his case. Strickland v. Washington, 466 U.S. 668, 688 (1984). 19 In reviewing defense counsel's performance, a court must "strongly presume that counsel's 20 conduct was within the wide-range of reasonable assistance, and that he exercised acceptable 21 professional judgment in all significant decisions made." Strickland, 466 U.S. at 689. 22 Defendant's claim of ineffective assistance relates only to counsel's failure to file a timely 23 appeal a claim which is not supported by any credible evidence. 24 The original charges against the defendant involved conspiracy to possess with the intent

25 to distribute 1,000 kilograms or more of marijuana and possession of firearms in furtherance of 26 a drug trafficking offense. Those charges required a mandatory minimum of ten and five years 27 respectively which by law were required to be imposed consecutively. Accordingly, the 28
7

Case 2:04-cr-00328-NVW

Document 198

Filed 03/20/2006

Page 16 of 18

1 defendant was facing a mandatory minimum sentence of fifteen years.

Defense counsel

2 nevertheless was able to negotiate a plea agreement which allowed the defendant to plead guilty 3 to a lesser included offense of Count 1 of the Superseding Indictment: Conspiracy to Possess 4 with the Intent to Distribute 100 Kilograms or More of Marijuana and a stipulation to a three 5 level reduction for acceptance of responsibility . Additionally, counsel was able to negotiate a 6 plea which called for the dismissal of the possession of firearms in furtherance of a drug 7 trafficking offense. The defendant benefitted significantly from this term because this charge 8 carries a mandatory five year consecutive sentence. Furthermore, the plea also stipulated to a 9 substantially reduced sentence of 60 months. Defendant received the full benefit of the plea 10 agreement and was sentenced to the stipulated sentence. 11 The record demonstrates that the defendant received effective assistance of counsel.

12 Defendant's counsel submitted an affidavit detailing that he fully advised the defendant of the 13 constitutional and other rights of an accused, the factual basis for and the nature of the offense 14 to which the guilty plea was entered, possible defenses, and the consequences of the guilty plea. 15 (See Exhibit B.) Defense counsel further states that the defendant entered the plea knowingly, 16 voluntarily and not as a result of any force, threats or promises not contained in the written plea 17 agreement. Additionally, counsel discussed with the defendant and the defendant understood that 18 he was waiving his right to appeal or collaterally attack his conviction or sentence as long as the 19 sentence was consistent with the terms of the plea agreement and that the sentence the defendant 20 received was consistent with the stipulated terms of the plea agreement. 21 Accordingly, there is no evidence of ineffective assistance of counsel to support his claims

22 and the defendant's valid waiver of his right to appeal or collaterally attack this matter must be 23 enforced. 24 25 IV. CONCLUSION For all of the foregoing reasons, the Motion of Arredondo-Zazueta to Vacate, Set Aside,

26 or Correct Sentence pursuant to 28 U.S.C. § 2255 should be dismissed. 27 28
8

Case 2:04-cr-00328-NVW

Document 198

Filed 03/20/2006

Page 17 of 18

1 2 3 4 5 6 7 8

Respectfully submitted this 20th day of March, 2006. PAUL K. CHARLTON United States Attorney District of Arizona

/s David A. Pimsner DAVID A. PIMSNER Assistant U.S. Attorney

certify that 9 I hereby the attachedon March 20, 2006, I served document by U.S. Postal mail on the following, who is not 10 a registered participant of the CM/ECF system:

11 Guadalupe Arredondo Zazueta 12 #82039-008 County Correctional Center CCA Cibola 13 P.O. Box 3540 Milan, NM 87021 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
9

Case 2:04-cr-00328-NVW

Document 198

Filed 03/20/2006

Page 18 of 18