Opinion · Court of Appeals for the Ninth Circuit
United States v. Rodolfo Espinoza Abarca, United States of America v. Espinoza Rodolfo Abarca
985 F.2d 1012
- Type
- Opinion
- Court
- Court of Appeals for the Ninth Circuit
- Jurisdiction
- Federal
- Date
- 1993-02-05
- Topic
- litigation
holding that defendant may waive statutory right to file 2255 petition challenging length of his sentence | holding that appeal waiver barred challenge to district’s court’s denial of sentence modification based on newly discovered evidence | holding that, by entering plea agreement whereby defendant waived right to 2 appeal his sentence, defendant relinquished right to directly or collaterally attack his 3 sentence on the ground of newly discovered exculpatory evidence | holding that, by entering 19 plea agreement whereby defendant waived right to appeal his sentence, defendant 20 relinquished right to directly or collaterally attack his sentence on the ground of newly 21 discovered exculpatory evidence | holding that, by entering plea agreement whereby defendant waived right to 28 1 appeal his sentence, defendant relinquished right to directly or collaterally attack his 2 sentence on the ground of newly discovered exculpatory evidence | holding that, by entering a plea agreement whereby 6 defendant waived right to appeal his sentence, defendant relinquished right to directly or 7 collaterally attack his sentence on the ground of newly discovered exculpatory evidence | holding that, by entering plea agreement 3 whereby defendant waived right to appeal his sentence, defendant relinquished right to 4 directly or collaterally attack his sentence on the ground of newly discovered exculpatory 5 evidence | stating that express waiver of appeal does not categorically foreclose claim based on ineffective assistance of counsel or involuntariness of waiver | holding that, by entering a plea agreement whereby defendant waived 4 right to appeal his sentence, defendant relinquished his right to directly or collaterally 5 attack his sentence on the ground of newly discovered exculpatory evidence | holding that by entering 10 a plea agreement and waiving the right to appeal sentencing issues, defendant 11 relinquished his right to seek collateral relief from his sentence on the ground 12 of newly discovered exculpatory evidence | holding that, by entering a plea 23 agreement whereby the defendant waived his right to appeal his sentence, the defendant 24 relinquished the right to directly or collaterally attack his sentence on the ground of newly 25 discovered exculpatory evidence | noting that an enforceable waiver requires “[a] knowing and voluntary waiver of a statutory right” | refusing to hold that a waiver "categorically forecloses" a 2255 petition claiming "ineffective assistance of counsel or involuntariness of waiver" | holding 25 that a defendant may waive the right to collateral review | holding defendant waived right to bring § 2255 motion | deeming plea agreement for sentence not exceeding applicable guideline range sufficient under Rule 11(e)(1)(C) | enforcing a waiver to 27 collateral attack of conviction in § 2255 proceeding | enforcing a waiver to collateral attack of conviction in § 2255 proceeding | enforcing a waiver to collateral attack of conviction in § 2255 proceeding | enforcing a waiver to collateral attack of conviction in § 2255 proceeding | enforcing a waiver to collateral attack of conviction in § 2255 proceeding | enforcing a waiver to collateral attack of conviction in § 2255 proceeding | expressly declining to hold that a waiver forecloses a claim of ineffective 12 assistance or involuntariness of the waiver | expressly declining to hold that a waiver 2 forecloses a claim of ineffective assistance or involuntariness of the waiver | expressly declining to hold that a waiver forecloses a claim of 5 ineffective assistance or involuntariness of the waiver | expressly declining to hold that a 6 waiver forecloses a claim of ineffective assistance or involuntariness of the waiver | expressly declining to hold that a waiver forecloses a claim of 16 ineffective assistance or involuntariness of the waiver | by entering a plea agreement waiving the right to 25 appeal sentencing issues, defendant relinquished his right t
Citator
- Cited by
- 65 opinions
Rodolfo Abarca-Espinoza 1 brings a consolidated appeal challenging (1) the seven-year sentence the district court imposed upon his plea of guilty to possession of cocaine with intent to distribute, and (2) the district court’s denial of his motion, under 28 U.S.C. § 2255, for modification of his sentence.
We affirm.
DISCUSSION
Abarca contends that the district court erred in refusing to hold an evidentiary hearing in which Abarca would present newly discovered partially exculpatory evidence entitling him to modification of his sentence. In his plea agreement, Abarca waived the right to appeal “any pretrial issues or any sentencing issues” on condition that he receive a sentence that did not exceed the applicable guideline range. The district court sentenced Abarca to eighty-four months, departing downward from the applicable guideline range of 121 to 151 months. In both his direct appeal, under 18 U.S.C. § 3742, 2 and his collateral action, under 28 U.S.C. § 2255, 3 the gravamen of Abarca’s complaint is that he is entitled to resentencing because newly discovered exculpatory evidence of the extent of his involvement in the crimes undermines the factual basis of the trial court’s sentencing decision. This claim constitutes a “sentencing issue,” and Abarca’s waiver forecloses him from raising it on appeal under 18 U.S.C. § 3742. United States v. Navarro-Botello, 912 F.2d 318, 321-22 (9th Cir.1990), ce rt. denied, — U.S. -, 112 S.Ct. 1488, 117 L.Ed.2d 629 (1992).
*1014 In addition, Abarca may not assert the issue in a petition for relief under 28 U.S.C. § 2255. Like the right to bring a direct appeal of his sentence, the right Abarca seeks to exercise in bringing a collateral attack is statutory. See Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2038, 52 L.Ed.2d 651 (1977) (“The right of appeal, as we presently know it in criminal cases, is purely a creature of statute_”). A knowing and voluntary waiver of a statutory right is enforceable. Navarro-Botello, 912 F.2d at 321. While we do not hold that Abarca’s waiver categorically forecloses him from bringing any section 2255 proceeding, such as a claim of ineffective assistance of counsel or involuntariness of waiver, United States v. Marin, 961 F.2d 493, 496 (4th Cir.1992); United States v. Rutan, 956 F.2d 827, 829-30 (8th Cir.1992); Navarro-Botello, 912 F.2d at 321, the question of the degree of his culpability is an issue ele' ly contemplated by, and subject to, his p a agreement waiver.
We hold that Abarca has relinquished his right to seek relief, direct or collateral, from his sentence on the ground that he has discovered new exculpatory evidence that undermines the factual basis of the trial court’s sentencing decision.
AFFIRMED.
. The appellant’s name appears in different forms in the captions of his two appeals. We adopt the form that appears most frequently in the briefs and record.
. 18 U.S.C. § 3742, among other things, provides:
(a) A defendant may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence (1) was imposed in violation of law; (2) was imposed as a result of an incorrect application of the sentencing guidelines; or (3) is greater than the sentence specified in the applicable guideline range to the extent that the sentence includes a greater fine or term of imprisonment, probation, or supervised release than the maximum established in the guideline range, or includes a more limiting condition of probation or supervised release under section 3563(b)(6) or (b)(ll) than the maximum established in the guideline range; or (4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.
(c) In the case of a plea agreement that includes a specific sentence under rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure (1) a defendant may not file a notice of appeal under paragraph (3) or (4) of subsection (a) unless the sentence imposed is greater than the sentence set forth in such agreement ...
.28 U.S.C. § 2255 provides in part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or law of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
A motion for such relief may be made at any time.
An appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment on application for a writ of habeas corpus.