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United States v. Gomez

filed*fn*: December 30, 1992.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
WILFREDO GOMEZ, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of California. D.C. No. CR-91-635-02-GT. Gordon Thompson, Jr., District Judge, Presiding

Before: Tang, Noonan, and T.g. Nelson, Circuit Judges.

MEMORANDUM

Wilfredo Gomez appeals his sentence imposed following entry of a guilty plea to aiding and abetting the possession of heroin with intent to distribute in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1). Gomez also appeals the district court's denial of his 28 U.S.C. § 2255 motion to vacate his sentence. We have jurisdiction under 28 U.S.C. § 1291 and affirm both the sentence and the denial of the section 2255 motion.

I

Direct Appeal

Gomez contends the district court erred by denying him a downward adjustment in his offense level because of his minor role in the offense. The government contends that Gomez has waived his right to appeal this issue.

We review de novo whether a criminal defendant has waived his statutory right to appeal. United States v. Bolinger, 940 F.2d 478, 479 (9th Cir. 1991); United States v. Navarro-Botello, 912 F.2d 318, 320 (9th Cir. 1990), cert. denied, 112 S. Ct. 1488 (1992). "An express waiver of the right to appeal in a negotiated plea of guilty is valid if knowingly and voluntarily made." Bolinger, 940 F.2d at 480.

Here, as part of his negotiated plea agreement, Gomez waived the right to appeal "any of the guideline calculations and his sentence." Gomez's challenge here is clearly to the calculation of his adjusted offense level under the United States Sentencing Guidelines. Gomez does not claim on appeal that his waiver was unknowing or involuntary.

Therefore, we do not reach the merits of his underlying claim that the district court misapplied the Guidelines. See id.

II

Section 2255

Gomez contends that he was denied effective assistance of counsel because his counsel failed to argue at sentencing that Gomez merited a reduction in offense level pursuant to U.S.S.C. § 3B1.2 due to his minor role in the offense. Gomez also argues the district court erred by failing to hold an evidentiary hearing on his motion. These contentions are without merit.

Although a defendant is generally not entitled to have both a direct appeal and a section 2255 proceeding considered simultaneously, see Tripati v. Henman, 843 F.2d 1161, 1162 (9th Cir.), cert. denied, 488 U.S. 982 (1988); Feldman v. Henman, 815 F.2d 1318, 1320 (9th Cir. 1987), we nonetheless elect to address the merits of Gomez's section 2255 motion, see Jack v. United States, 435 F.2d 317, 319 (9th Cir. 1970), cert. denied, 402 U.S. 933 (1971).

We review de novo the denial of a section 2255 motion. Donagiere v. United States, 914 F.2d 165, 167 (9th Cir. 1990), cert. denied, 111 S. Ct. 1398 (1991). The district court may deny a section 2255 motion without an evidentiary hearing if "the motions and files and records of the case conclusively show that the prisoner is entitled to no relief." 28 ...


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