Garcia-Vasquez v. USA, No. 3:2016cv00991 - Document 2 (S.D. Cal. 2018)
Court Description: ORDER denying Motion to Vacate, Set Aside, or Correct a Sentence Pursuant to 28 U.S.C. § 2255 as to Ricardo Garcia-Vasquez (1). The Motion to Vacate, Set Aside, or Correct Sentence is DENIED. This Court find that Movant has not made the necessary showing. A certificate of appealability is therefore Denied. Signed by Judge Roger T. Benitez on 11/3/2018.(All non-registered users served via U.S. Mail Service)(anh)
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Garcia-Vasquez v. USA Doc. 2 ., 1 2 FflED 3 4 NOV 0 5 2018 5 6 7 8 9 10 11 UNITED STATES DISTRICT COURT 12 SOUTHERN DISTRICT OF CALIFORNIA 13 14 RICARDO GARCIA-VASQUEZ, 15 Movant, 16 v. 17 UNITED STATES OF AMERICA, 18 Respondent. Case No.: 16CV0991-BEN 15CR0217-BEN ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT A SENTENCE PURSUANT TO 28 U.S.C. § 2255 19 20 Movant, RICARDO GARCIA-VASQUEZ, proceeding pro se, filed a Motion to 21 Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255. Respondent, 22 the United States of America, filed a response and Movant filed a Traverse. The motion 23 is denied. 24 BACKGROUND 25 On January 29, 2015, the Government filed a one-count information charging 26 Movant with violation of 8 U.S.C. § 1326(a) and (b), Removed Alien Found in the 27 United States. Movant entered into a plea agreement with the government, in which he 28 waived, to the full extent of the law, any right to appeal or to collaterally attack the 16CV0991-BEN 15CR0217-BEN Dockets.Justia.com ,, 1 conviction and sentence. Movant thereafter pleaded guilty and came before this Court for 2 sentencing. The Court sentenced Movant to 37 months in custody and a term of 3 supervised release of three years. 4 By his motion, Movant essentially argues that he is entitled to a reduced sentence 5 pursuant to the Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 6 (2015). 7 LEGAL STANDARD 8 Under§ 2255, a movant is entitled to relief if the sentence: (1) was imposed in 9 violation of the Constitution or the laws of the United States; (2) was given by a court 10 without jurisdiction to do so; (3) was in excess of the maximum sentence authorized by 11 law; or (4) is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v. 12 Speelman, 431 F.3d 1226, 1230 n.2 (9th Cir. 2005). If it is clear the movant has failed to 13 state a claim, or has "no more than conclusory allegations, unsupported by facts and 14 refuted by the record," a district court may deny a§ 2255 motion without an evidentiary 15 hearing. United States v. Quan, 789 F.2d 711, 715 (9th Cir. 1986) ("Where a prisoner's 16 motion presents no more than conclusory allegations, unsupported by facts and refuted by 17 the record, an evidentiary hearing is not required."). Here, none is needed. 18 DISCUSSION 19 Because Movant is a deported alien no longer in custody, and for which no 20 sentencing relief is now possible, the motion is moot. Cf, United States v. Castro- 21 Verdugo, 750 F.3d 1065, 1076 (9th Cir. 2014) (Breyer, J., dissenting) ("Finally, once the 22 Defendant was removed from the country ... any attempt to correct the [sentencing] 23 error likely would have been denied as moot .... As long as Defendant was in Mexico, 24 the imposition of probation, albeit illegal, was moot and the case or controversy 25 requirement could not have been satisfied where, as here, the Defendant does not 26 continue to suffer actual collateral consequences.") (citations omitted); Abdala v. INS, 27 488 F.3d 1061, 1064 (9th Cir. 2007) ("[W]here the grounds for habeas relief will not 28 redress collateral consequences, a habeas petition does not continue to present a live 2 I 6CV099 I -BEN 15CR0217-BEN 1 controversy once the petitioner is released from custody. For example, a petitioner 2 subject to the collateral consequences of a ten-year bar to reentry did not present a 3 cognizable claim where the petitioner was also permanently barred from reentry on a 4 wholly separate ground."). Here, Movant was already subject to a lifetime bar of reentry 5 by virtue of his previous deportations. No change in his sentence now would afford any 6 relief. 7 If the motion were not moot, it would fail because Movant validly waived his right 8 to collaterally attack his sentence. Courts enforce plea agreements containing knowing 9 and voluntary waivers of statutory rights of appeal or collateral attack because such 10 "waivers usefully preserve the finality of judgments and sentences imposed pursuant to 11 valid plea agreements." United States v. Anglin, 215 F.3d 1064, 1066 (9th Cir. 2000); 12 United States v. Lo, 839 F.3d 777 (9th Cir. 2016) ("We will enforce a valid waiver even 13 ifthe claims that could have been made on appeal absent that waiver appear meritorious, 14 because the whole point of a waiver is the relinquishment of claims regardless of their 15 merit."); United States v. Nunez, 223 F.3d 956, 958 (9th Cir. 2000) (courts enforce a 16 waiver of appeal, as long as the waiver is knowingly and voluntary and encompasses the 17 defendant's right to appeal on the grounds claimed on appeal). The Ninth Circuit 18 recognizes that strong public policy considerations justify the enforcement of a 19 defendant's waiver of his right to appeal or to collaterally attack a judgment. United 20 States v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir. 1990). Waivers play an important 21 role in the plea bargaining process and help ensure finality. Id. at 322. The finality of 22 judgments benefits both the government and the courts. Id. In exchange for the 23 defendant's guilty plea and waiver of rights to appeal and collaterally attack, the 24 government and the courts need not spend resources on litigation after the sentencing. Id. 25 The defendant gets a lower sentencing recommendation and the court is more willing to 26 agree to a lower sentence than would be the case absent the waivers. "Collateral attack 27 pursuant to a statutory provision is also subject to a knowing and voluntary waiver." 28 3 l 6CV099 l-BEN 15CR0217-BEN 1 United States v. Leniear, 574 F.3d 668, 672 n.3 (9th Cir. 2009); United States v. Abarca, 2 985 F.2d 1012, 1014 (9th Cir. 1993). 3 Here, the Plea Agreement provides that Movant expressly waived, to the full extent 4 of the law, any right to appeal or to collaterally attack the conviction and sentence, except 5 a post-conviction collateral attack based on a claim of ineffective assistance of counsel 6 unless the Court imposes a custodial sentence above the high end of the guideline range 7 recommended by the Government pursuant to this agreement at the time of sentencing. 8 The Court imposed a sentence within the guideline range recommended by the 9 Government. Under the plain language of the Plea Agreement, Movant waived his right 10 to collaterally attack his sentence. In addition, Movant entered into the waiver knowingly 11 and voluntarily. The waiver is clearly stated in the Plea Agreement. In the Plea 12 Agreement, Movant certified that he knowingly and voluntarily entered into the Plea 13 Agreement, read it, discussed its terms with his attorney, and fully understood its 14 meaning and effect. This Court advised Movant of the rights he was giving up by 15 pleading guilty. Movant affirmed that he had discussed the Plea Agreement with his 16 attorneys, understood it, and did not have any questions. Finally, at the conclusion of 17 sentencing, Movant and his attorney both acknowledged verbally that Movant had given 18 up his right to collaterally attack. Accordingly, Movant' s waiver was valid and will be 19 enforced. 20 Additionally, contrary to his contentions, Movant's sentence was not 21 unconstitutionally enhanced under Johnson. In Johnson, the Supreme Court considered 22 language in the Armed Career Criminal Act ("ACCA"). The ACCA imposes a 23 mandatory minimum sentence of 15 years for a defendant who violates 18 U.S.C. § 24 922(g) and "has three previous convictions by any court ... for a violent felony or 25 serious drug offense, or both." 18 U.S.C. § 924(e)(l). The Supreme Court examined the 26 definition of"violent felony" and held that a portion of that definition known as the 27 "residual clause" is void for vagueness. Imposing an increased sentence under the 28 residual clause of the ACCA's definition of"violent felony" violates the Constitution's 4 16CV0991-BEN 15CR0217-BEN 1 guarantee of due process. Johnson, 135 S. Ct. at 2563. The Supreme Court expressly 2 confined its holding to this particular portion of the statute and confirmed that its holding 3 does not apply to the "serious drug offense" clause or the remainder of the "violent 4 felony" definition. Id. 5 Johnson is inapplicable here because Movant was not sentenced under the residual 6 clause of the violent felony definition of the ACCA. See United States v. Ruiz-Diaz, 668 7 F. App'x 289, 290 (9th Cir. 2016) ("Because the [sentencing] enhancement was not 8 predicated on a residual clause like the one struck down in Johnson, there is no arguable 9 issue as to whether [defendant's] sentence is illegal."). Rather, he was sentenced 10 pursuant to 8 U.S.C. § 1326, which was not implicated by Johnson. See United States v. 11 Padilla, Case No. 2:10CR-00454-CAS, 2017 WL 962756, at *3, 2017 U.S. Dist. LEXIS 12 35650, at *8-9 (C.D. Cal. Mar. 13, 2017) (finding Johnson inapplicable to petitioner's § 13 2255 petition because petitioner's "sentence was not based upon any guidelines that 14 might have been implicated by Johnson."). Movant's motion may be construed as 15 challenging the Sentencing Guidelines as unconstitutionally vague based on the same 16 reasoning as Johnson. However, the Supreme Court rejected that argument in Beckles v. 17 United States, 137 S. Ct. 886 (2017), holding that the federal Sentencing Guidelines are 18 not subject to vagueness challenges under the due process clause. Id. at 890, 892, 895. 19 As there are no arguable grounds to collaterally attack Movant's sentence as 20 illegal, the Court enforces the collateral attack waiver. Ruiz-Diaz, 668 F. App'x at 290 21 (citing United States v. Watson, 582 F.3d 974, 988 (9th Cir. 2009)). Alternatively, 22 Movant's motion is denied on the merits. 23 CONCLUSION 24 The Motion to Vacate, Set Aside, or Correct Sentence is DENIED. 25 A court may issue a certificate of appealability where the movant has made a 26 "substantial showing of the denial of a constitutional right," and reasonable jurists could 27 debate whether the motion should have been resolved differently, or that the issues 28 presented deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 5 16CV0991-BEN 15CR0217-BEN 1 322, 335 (2003). This Court finds that Movant has not made the necessary showing. A 2 certificate of appealability is therefore DENIED. 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 16CV099!-BEN 15CR0217-BEN
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