United States District Court, D. Hawaii
ORDER DENYING VASQUEZ’S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE
DERRICK K. WATSON UNITED STATES DISTRICT JUDGE.
Pursuant to a plea agreement, Petitioner Armando Vasquez, pled guilty to, and was sentenced for, conspiracy to distribute and to possess with the intent to distribute 53 pounds of methamphetamine in violation of Title 21, United States Code, Sections 841 and 846. Vasquez seeks to vacate his sentence pursuant to 28 U.S.C. § 2255, notwithstanding a waiver provision in his plea agreement that prohibits appeals and collateral attacks in most circumstances. After careful consideration of Vasquez’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (“§ 2255 Motion”), the record, and the relevant legal authority, Vasquez’s § 2255 Motion is DENIED as barred by the terms of his plea agreement with the United States.
I. Indictment & Guilty Plea
Vasquez was one of three defendants charged with conspiracy to distribute and to possess with the intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, and salts of its isomers, in violation of Title 21, United States Code, Sections 846, 841(a)(1) and 841(b)(1)(A). Dkt. No. 1.
On December 19, 2013, Vasquez entered a plea of guilty to the charged conspiracy. Dkt. No. 140-1, Gov’t Exh. A. The factual basis for the plea, to which Vasquez expressly admitted, was set forth in a Memorandum of Plea Agreement (“Plea Agreement”). Id. at ¶ 8. Vasquez acknowledged that the penalties for the offense to which he pled guilty included “up to life imprisonment” and a “minimum term of imprisonment of ten years.” Id. at ¶ 7(a) & (b).
Relevant to the issue before the Court, Vasquez expressly waived his right to appeal or otherwise challenge his sentence, except under limited circumstances:
12. The Defendant is aware that he has the right to appeal the sentence imposed under Title 18, United States Code, Section 3742(a). Defendant knowingly waives the right to appeal, except as indicated in subparagraph “b” below, any sentence within the maximum provided in the statute(s) of conviction or the manner in which that sentence was determined on any of the grounds set forth in Section 3742, or on any ground whatever, in exchange for the concessions made by the prosecution this plea agreement.
a. The Defendant also waives his right to challenge his sentence or the manner in which it was determined in any collateral attack, including, but not limited to, a motion brought under Title 28, United States Code, Section 2255, except that defendant may make such a challenge (1) as indicated in subparagraph “b” below, or (2) based on a claim of ineffective assistance of counsel.
b. If the Court in imposing sentence departs (as that term is used in Part K of the Sentencing Guidelines) or varies upward from the guideline range determined by the Court to be applicable to the Defendant, the Defendant retains the right to appeal the upward departure portion of his sentence and the manner in which that portion was determined under Section 3742 and to challenge that portion of his sentence in a collateral attack.
Id. at ¶ 12(a) & (b).
Similarly, Vasquez “surrender[ed] his right to challenge any sentence within the statutory maximum, or the manner in which it was determined, including, but not limited to, a sentence that [Vasquez] perceive[d] to be an incorrect application of the Guidelines.” Id. at ¶ 13. In addition, Vasquez acknowledged that “no threats, promises, or representations [had] been made, nor agreement reached, other than those set forth in [the Plea] Agreement, to induce [Vasquez] to plead guilty.” Id. at ¶ 17.
During the December 19, 2013 plea proceeding, Vasquez was represented by counsel and had a Spanish interpreter available to him. Dkt. No. 140-2, Gov’t Exh. B, Tr. at 2. Vasquez acknowledged during the plea colloquy that he understood and had spoken with his attorney about the Plea Agreement:
THE COURT: I understand, based on Mr. Harrison’s statement earlier, that you have read the plea agreement in this case in full, either in English, if you understood it, or in ...