United States District Court, D. Hawaii
ORDER DENYING MOON’S MOTION UNDER 28 U.S.C.
§ 2255 TO VACATE, SET ASIDE, OR CORRECT
DERRICK K. WATSON United States District Judge.
to a Plea Agreement, Petitioner James Moon pled guilty to,
and was sentenced to 168 months’ imprisonment for,
conspiracy to possess with the intent to distribute
methamphetamine and cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), and 846. Relying on 28
U.S.C. § 2255, Moon now seeks to vacate his sentence,
notwithstanding a broad waiver provision in his Plea
Agreement that prohibits collateral attacks in most
circumstances. After careful consideration of Moon’s
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence (“§ 2255 Motion”), the
record, and the relevant legal authority, Moon’s §
2255 Motion is DENIED.
Indictment & Guilty Plea
and his co-defendant, Francisco Palma, III, were 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, and 500
grams or more of a mixture or substance containing a
detectable amount of cocaine (Count 1). Both defendants were
also charged with possession with the intent to distribute
“five hundred (500) grams or more, to wit,
approximately eight and one-half (8 ½) pounds of a
mixture and substance containing a detectable amount of
methamphetamine, its salts, isomers and salts of its isomers
and five hundred (500) grams or more, to wit, approximately
four and one-half (4 1/2) pounds of a mixture and substance
containing a detectable amount of cocaine . . .” (Count
3). In addition, Moon alone was charged with distribution of
“five hundred (500) grams or more, to wit,
approximately three (3) pounds of a mixture and substance
containing a detectable amount of methamphetamine, its salts,
isomers and salts of its isomers” (Count 2). Dkt. No.
January 31, 2014, Moon pled guilty to Count 1 of the
Indictment. Dkt. No. 57. The factual basis for the plea, to
which Moon expressly admitted, was set forth in a Memorandum
of Plea Agreement (“Plea Agreement”). Dkt. No.
109-1, Gov’t Exh. A. Moon acknowledged that the
penalties for the offense to which he pled guilty included
“a mandatory minimum term of imprisonment of ten
(10)years, [and] a statutory maximum term of imprisonment of
life . . . .” Id. at ¶ 7.
10 of the Plea Agreement contained the following stipulations
concerning the sentencing guidelines:
10. Pursuant to CrimLR32.1(b) of the Local Rules of the
United States District Court for the District of Hawaii and
Section 6B1.4 of the Sentencing Guidelines, the parties
stipulate to the following for the purpose of the sentencing
of Defendant in connection with this matter:
a. The United States Attorney agrees that Defendant’s
agreement herein to enter into a guilty plea constitutes
notice of intent to plead guilty in a timely manner, so as to
permit the government to avoid preparing for trial as to
Defendant. Accordingly, the United States Attorney
anticipates moving in the Government’s Sentencing
Statement for a one-level reduction in sentencing offense
level pursuant to Guideline § 3E1.1(b)(2), if defendant
is otherwise eligible. The Defendant understands that
notwithstanding its present intentions, and still within the
Agreement, the prosecution reserves the rights (1) to argue
to the contrary in the event of receipt of new information
relating to those issues, and (2) to call and examine
witnesses on those issues in the event that either the
probation office finds to the contrary of the
prosecution’s intentions or the Court requests that
evidence be presented on those issues.
b. The parties agree that Defendant is an “organizer,
leader, manager, or supervisor” as defined in
Sentencing Guideline Section 3B1.1(c) and stipulate that
Defendant’s base offense level shall reflect the two
level increase pursuant to Section 3B1.1(c).
c. Defendant acknowledges that the prosecution could file a
Special Information as to Prior Drug Conviction Pursuant to
21 U.S.C. Section 851 (hereafter “Special
Information”) for the purpose of seeking enhanced
sentencing under 21 U.S.C. Section 851 based upon the
Defendant’s prior conviction on or about February 2,
1994 in the Superior Court for the State of California, San
Jose, Case No. 163303, for the transportation, sale or
distribution of a controlled substance in violation of
Section 11-352(a) of the California Health and Safety Code.
In exchange for Defendant’s guilty plea to count 1 and
the stipulation in paragraph 10(b), the prosecution agrees
that it will not file a Special Information in this case
regarding the Defendant’s prior felony drug conviction.
Id. at ¶ 10(a)-(c).
to the issues before the Court, Moon 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 imposes a sentence greater than the specified
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
Id. at ¶ 12(a) & (b).
Moon “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
[Moon] perceive[d] to be an incorrect application of the
Guidelines.” Id. at ¶ 13. In addition,
Moon acknowledged that “no threats, promises, or
representations [had] been made, nor agreement reached, other
than those set forth in [the Plea] Agreement, to induce
[Moon] to plead guilty.” Id. at ¶ 17.
the January 31, 2014 change of plea proceeding, Moon was
represented by counsel. Dkt. No. 109-3, Gov’t Exh. C.
Moon acknowledged during the plea colloquy that he understood
and had spoken with his attorney about the Plea Agreement;
that the Plea Agreement reflected his entire agreement with
the Government; and that the Government had not made any
promises to him that were not contained in Plea Agreement.
Id. at 9-10. As to his sentence, Moon acknowledged
that the maximum term of imprisonment was life and that there
was a mandatory minimum term of ten years. Id. at
8-9. At the conclusion of its colloquy, the Court found that
Moon “understands the factors that the Court will
consider in imposing the sentence[, ] including the maximum
possible punishment, and the mandatory minimum.”
Id. at 32.