United States District Court, D. Arizona
ORDER
Honorable Rosemary Marquez, United States District Judge
Pending
before the Court is Movant Maribel Rocha-Chacon's
(“Movant”) pro se Motion under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody. (Doc. 1.)[1] On May 13, 2019, Movant filed two
Motions for Status. (Docs. 3, 4.) On May 20, 2019, the Court
issued an Order granting in part Movant's Motions for
Status and requiring a response to the § 2255 Motion.
(Doc. 5.) On August 15, 2019, the Government filed its
Answer. (Doc. 9.) The deadline for filing a Reply has
expired. For the following reasons, the Court will deny the
§ 2255 Motion.
I.
Background
On
January 24, 2017, at a port of entry in Nogales, Arizona,
Border Patrol agents seized 53.8 kilograms of packaged
methamphetamine from Movant's vehicle. (CR Doc. 73 at 3,
5.) The methamphetamine had a net weight without packaging of
47.4 kilograms and a purity of 99 percent, which constitutes
“ice.” (Id. at 5.) Pursuant to a written
plea agreement, Movant pled guilty to one count of Conspiracy
to Possess with Intent to Distribute 50 grams or More of
Methamphetamine. (CR Doc. 42.)
The
Presentence Investigation Report (“PSR”)
identified a guideline imprisonment range of 168 to 210
months. (CR Doc. 73 at 9.) The plea agreement stipulated to a
range of 108 to 135 months, which was a four-level downward
departure from the advisory guideline range. (Id. at
10.) The parties then agreed in their sentencing memoranda
that Movant should face a guideline range of 87 to 108
months. (CR Doc. 47 at 1-2; CR Doc. 75 at 3 n.1.) The PSR
ultimately recommended 72 months in custody. (CR Doc. 73 at
13- 14.) Defense counsel argued for a sentence of “no
more than 24 months of incarceration.” (CR Doc. 75 at
3.)
The
Court granted a variance below the guideline range pursuant
to Movant's role in the offense, specifically her
“role as a courier.” (CR Doc. 78 at 3.) Movant
was ultimately sentenced to forty (40) months of
incarceration and three years of supervised release. (CR Doc.
77.) The Court adopted the PSR's proposed Sentencing
Guideline calculations, which were based on the lab report of
99 percent purity. (CR Doc. 78; CR Doc. 73 at 5.)
II.
Waiver
In her
written plea agreement, Movant agreed to waive “any
right to collaterally attack” her “conviction and
sentence under Title 28, United States Code, Section
2255.” (CR Doc. 42 at 5.) She acknowledged that her
waiver “shall result in the dismissal of any . . .
collateral attack [she] might file challenging” her
“conviction or sentence in this case.”
(Id. at 5-6.) Magistrate Judge Lynnette C. Kimmins
held a change-of-plea hearing, found that Movant's guilty
plea was knowingly and voluntarily made, and recommended that
the guilty plea be accepted. (CR Docs. 41, 43.) Movant did
not object to Judge Kimmins's findings and
recommendation, and this Court accepted the guilty plea. (CR
Doc. 44.)
With
limited exceptions not relevant here, a defendant may waive
the statutory right to bring a § 2255 motion if she
knowingly and voluntarily signs a plea agreement that
contains an express waiver of that right. United States
v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994); United
States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993);
see also United States. v. Charles, 581 F.3d 927,
931 (9th Cir. 2009) (a “defendant's waiver of his
appellate rights is enforceable if (1) the language of the
waiver encompasses his right to appeal on the grounds raised,
and (2) the waiver is knowingly and voluntarily made”
(internal quotation omitted)).
The
Court finds that Movant waived her right to collaterally
attack her conviction and sentence in a 28 U.S.C. § 2255
Motion. Based on that waiver, Movant's § 2255 Motion
should be denied. However, because the Government did not
make this argument in its Answer to the § 2255 Motion
(see Doc. 8), the Court will also address the merits
of the § 2255 Motion.
III.
Merits
In her
Motion to Vacate, Set Aside, or Correct Sentence, Movant
argues that her defense attorney provided ineffective
assistance because he failed to argue that she should have
been sentenced under the more lenient Guidelines for
“mixture” of methamphetamine, rather than
“actual” methamphetamine or “ice.”
(Doc. 1 at 4, 12-13.) Movant asserts a policy disagreement
with the Guidelines' disparate treatment of mixture and
ice, citing two recent cases from the Northern District of
Iowa. Movant requests an evidentiary hearing and a sentence
reduction. (Doc. 1 at 13.) The Government opposes the Motion.
(Doc. 9.)
A.
Applicable Law
The
right to the effective assistance of counsel is rooted in the
Sixth Amendment. U.S. Const. amend. VI. A convicted defendant
asserting a claim of ineffective assistance of counsel
(“IAC”) must show both deficient performance and
prejudice. Strickland v. Washington, 466 U.S. 668,
687 (1984). To establish deficient performance, the defendant
“must show that counsel's representation fell below
an objective standard of reasonableness.”
Strickland, 466 U.S. at 688. A
“reasonableness” inquiry is based on the
“facts of the particular case, viewed as of the time of
counsel's conduct.” Id. at 690. A
defendant “must overcome the presumption that, under
the circumstances, the challenged action might be considered
sound trial strategy.” Id. at 689; see
also Kimmelman v. Morrison, 477 U.S. 365, 381 (1986)
(“The defendant bears the burden of proving that
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