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United States v. Aguilar-Roblero

United States District Court, E.D. Washington

October 24, 2019

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
MAURICIO AGUILAR-ROBLERO, Defendant-Petitioner.

          ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255

          THOMAS O. RICE, Chief United States District Judge.

         BEFORE THE COURT are Defendant's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. 2255 (ECF No. 60), Application to Proceed In Forma Pauperis (ECF No. 61), and Motion to Appoint Counsel (ECF No. 62). Defendant is proceeding pro se. The Court has reviewed the record and files herein, and is fully informed. For the reasons discussed below, the Court denies Defendant's Motions.

         BACKGROUND

         On September 6, 2017, Mauricio Aguilar-Roblero appeared before the Court and entered a plea of guilty to Count 1 of the Indictment filed on April 4, 2017, charging him with Possession with the Intent to Distribute 500 Grams or more of Methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii). ECF Nos. 34, 35, 36. On December 12, 2017, Mr. Aguilar-Roblero was sentenced to 135 months incarceration followed by a 5-year term of supervised release. ECF No. 45.

         Although Defendant waived “his right to appeal the conviction and sentence if the Court sentences the Defendant to a term of incarceration of not more than 135 months; and a term of supervised release of not more than five (5) years” (ECF No. 35 at ¶ 16), an appeal was filed on his behalf. ECF No. 48. Appellate counsel was appointed to represent Mr. Aguilar-Roblero on appeal. ECF No. 56. The Ninth Circuit considered his case and on February 21, 2019 dismissed his appeal, ruling as follows:

Mauricio Aguilar-Roblero appeals from the district court's judgment and challenges his guilty-plea conviction and 135-month sentence for possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii). Pursuant to Anders v. California, 386 U.S. 738 (1967), Aguilar-Roblero's counsel has filed a brief stating that there are no grounds for relief, along with a motion to withdraw as counsel of record. Aguilar-Roblero has filed a pro se supplemental brief. No answering brief has been filed.
Aguilar-Roblero waived his right to appeal his conviction and sentence. Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80 (1988), discloses no arguable issue as to the validity of the waiver. See United States v. Watson, 582 F.3d 974, 986-88 (9th Cir. 2009). We accordingly dismiss the appeal. See Id. at 988.
Counsel's motion to withdraw is GRANTED. We treat Aguilar-Roblero's pro se submissions, Docket Entry Nos. 14 and 21, as motions for appointment of new counsel and DENY the motions.
DISMISSED.

ECF No. 58.

         On August 12, 2019, Defendant filed the instant motions.

         DISCUSSION

         A. Motion to Vacate, Set Aside or Correct Sentence

         The Court first considers Defendant's motion pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings. Rule 4(b) provides that the Court “must promptly examine [the motion]. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion . . .”

         The issues raised do not require an evidentiary hearing. See Rule 8, Rules- Section 2255 Proceedings. The transcripts, records and materials filed in this proceeding adequately document the issues for resolution.

         Here, Defendant is plainly not entitled to relief. Defendant raises a number of issues, which will be addressed in the order presented.

         1. Plea Not Knowing, Intelligent, or Voluntary

         Defendant contends his “guilty plea was not knowingly, intelligently, or voluntarily entered” and had he “been properly advised, he would have pled not guilty and insisted on going to trial.” ECF No. 60 at 5. Defendant does not elucidate his contentions any further.

         The transcript of the change of plea hearing demonstrates otherwise. ECF No. 57. First, Defendant was placed under oath to tell the truth during the hearing. Id. at 3-4. Defendant was advised of the charge, the elements of the offense, the penalties associated with the offense, the right to a jury trial and all its attendant rights. Defendant affirmed that no one promised him anything other than the promises in the plea agreement and that no one threatened him to get him to plead guilty. Id. at 5-6. Defendant represented that it was his decision to plead guilty. Id. at 6.

         Defendant has not shown that his plea was not knowing, intelligent and voluntary and the full transcript conclusively ...


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