Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jimenez-Najera v. USA

United States District Court, D. Arizona

May 16, 2016

Gilberto Jimenez-Najera, Petitioner,
v.
USA, Respondent.

          REPORT AND RECOMMENDATION

          DAVID K. DUNCAN, Magistrate Judge.

         Petitioner Gilberto Jimenez-Najera filed this Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 ("Section 2255 Motion") after he had entered a plea of guilty to one violation of 8 U.S.C. § 1326(a) and was sentenced to 33 months to be followed by a term of supervised release. (CR-14-2565 ("CR") Docs. 3, 18, 21) He argues that he is entitled to relief because he received poor legal advice, his sentence was excessive, and he did not understand his plea agreement. (Doc. 1 at 4-6) As explained below, the Court recommends that this Motion be denied.

         BACKGROUND

         On October 29, 2014, Jimenez-Najera was found guilty, pursuant to a plea agreement, for reentry of a removed alien. (CR Docs. 3, 18, 21) During his change of plea colloquy, the Court reviewed the terms of his plea agreement. (CR Doc. 31) Jimenez-Najera confirmed that he had spoken directly with his attorney in Spanish and had understood his attorney. ( Id. at 5) He agreed that he had enough time to discuss the plea agreement with his attorney, did discuss the entire plea agreement with his attorney, had signed the plea agreement after his attorney had satisfactorily answered all of his questions about it, and was satisfied with his attorney's representation of him in the case. ( Id. at 4-5)

         During the colloquy with the Court, Jimenez-Najera also said that he understood, and waived, his rights to a grand jury, a trial by jury, an appeal, and any collateral attack on his judgment and sentence. ( Id. at 7, 16-18, 21) He stated that he understood the plea agreement, that it contained all the promises that had been made to him, and that no other promises had been made to him. ( Id. at 5, 6-7, 15) He confirmed that no one forced, threatened, or coerced him in any way to enter a plea of guilty. ( Id. at 6) He confirmed that he had no questions about the possible consequences of his guilty plea, including the maximum possible penalties and the imposition of supervised release. ( Id. at 8-9, 11, 15)

         During the plea colloquy, Jimenez-Najera's attorney told the Court that he had provided Jimenez-Najera with estimates of which sentencing range guidelines might apply. (CR Doc. 31 at 15) The Court confirmed that Jimenez-Najera understood that these estimates were not binding on the Court at sentencing. (CR Doc. 31 at 15-16)

         Jimenez-Najera also admitted to the factual basis of his plea and to the existence of a prior felony conviction. ( Id. at 22) At the conclusion of the colloquy, the Court found that Jimenez-Najera had entered into his plea knowingly, voluntarily, and intelligently. ( Id. at 23)

         At his sentencing hearing, Jimenez-Najera's counsel argued that he should have a reduced sentence because of his child's illness. (Doc. 60 at 8-12) The Court found that Jimenez-Najera had not met his burden for the sentencing variance. ( Id. at 15) The Court found that Jimenez-Najera's sentencing range was between 33 and 41 months and sentenced him to a term of 33 months to be followed by three years of supervised release. ( Id. at 15-17)

         Jimenez-Najera timely filed this Motion and the government timely responded. (Docs. 1, 4) Jimenez-Najera did not reply but he did ask the Court to grant him relief because he had not received a copy of the Response and had concluded that it was untimely. (Doc. 5) Because the government did file a Response and the record shows that a copy was mailed to Jimenez-Najera, this request will be denied. (Doc.4 at 11)

         DISCUSSION

         In his Section 2255 Motion, Jimenez-Najera argues that he is entitled to relief because (1) he received "poor and insufficient" legal advice, (2) his sentence was excessive, (3) he signed a plea agreement without fully understanding it, and (4) he did not file a direct appeal because of poor legal advice. (Doc. 1 at 4-6) Put another way, Jimenez-Najera raises one substantive claim in Claim 2 and three claims of ineffective assistance of counsel in Claims 1, 3, and 4. In response, the United States argues that Jimenez-Najera waived his right to raise his substantive claim and argues that his ineffective assistance of counsel claims fail on the merits. (Doc. 4)

         Excessive Sentence. In Claim 2, Jimenez-Najera argues that his sentence was excessive because "the maximum term of imprisonment for a re-entry is not more than two years." (Doc. 1 at 5) As part of the written plea agreement, Jimenez-Najera agreed to waive "any right to file an appeal, any collateral attack, and any other writ or motion that challenges...any aspect of the defendant's sentence, including the manner in which the sentence is determined." (CR Doc. 46 at 5) The government argues that Jimenez-Najera expressly waived his right to file a challenge to his sentence under Section 2255 motion as part of his plea agreement and so the Court cannot consider this argument.

         Courts will generally enforce the plain language of a plea agreement if it is clear and unambiguous on its face, and the waiver was knowingly and voluntarily made. United States v. Joyce, 357 F.3d 921, 922 (9th Cir. 2004); United States v. Nunez, 223 F.3d 956, 958 (9th Cir. 2000). However, "[a] plea agreement does not waive the right to bring a § 2255 motion unless it does so expressly." United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994).

         The record shows that Jimenez-Najera's plea agreement unambiguously waived his right to raise a collateral attach on the length of his sentence. The record also shows that he entered into his plea agreement knowingly, voluntarily and intelligently. In his plea colloquy, Jimenez-Najera's attorney stated that the plea was provided to Jimenez-Najera in Spanish and Jimenez-Najera stated that he understood everything that was in the plea agreement, that he was satisfied with the representation of counsel, that he understood the charges against him, and that he had no questions about the plea. Further, he specifically stated that he understood that he was waiving his right ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.