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Rocha-Chacon v. United States

United States District Court, D. Arizona

October 7, 2019

Maribel Rocha-Chacon, Petitioner,
v.
United States of America, Respondent.

          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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