Miriam Demaris Monserrate, Petitioner-appellant, v. United States of America, Respondent-appellee, 953 F.2d 1387 (9th Cir. 1992)

MEMORANDUM^** 

Miriam Demaris Monserrate appeals the denial by the district court of her motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255. We affirm.

Monserrate pleaded guilty to conspiracy to distribute 500 or more grams of cocaine in violation of 21 U.S.C. § 846. She does not argue that her guilty plea was involuntary, unintelligent, or uncounseled. By pleading guilty, Monserrate waived her right to present an entrapment defense. "As a general rule, a guilty plea erases claims of constitutional violation arising before the plea." United States v. Montilla, 870 F.2d 549, 552 (9th Cir. 1989), modified, 907 F.2d 115 (9th Cir. 1990). Monserrate has raised no arguments questioning the authority of the government to hale her into court, and therefore cannot avail herself of the exception articulated in United States v. Broce, 488 U.S. 563, 575 (1989) (guilty plea to an indictment which on its face is constitutionally deficient may be collaterally attacked).

Monserrate next challenges the length of her sentence, arguing that it is unduly and disparately harsh. Monserrate was sentenced to 60 months in prison by the district court. To do so, the court below departed downward from the Sentencing Guidelines range of 97-121 months and sentenced Monserrate to the statutory minimum sentence. See 21 U.S.C. § 846 (conspiracy to violate 21 U.S.C. § 841(a) punished pursuant to section 841); id. § 841(b) (1) (B) (ii) (distribution of 500 or more grams of cocaine subject to five-year minimum sentence). Monserrate cannot complain that the district court's downward departure was insufficiently generous. United States v. Vizcarra-Angulo, 904 F.2d 22, 23 (9th Cir. 1990). The statutory minimum sentence was upheld by this circuit against due process and Eighth Amendment challenges in United States v. Kidder, 869 F.2d 1328, 1333-35 (9th Cir. 1989).

AFFIRMED.