United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree, United States District Judge
matter comes before the court on defendant Mauricio
Aguilera's Motion to Vacate Sentence Under 28 U.S.C.
§ 2255 (Doc. 80). The government responded to Mr.
Aguilera's motion with a Motion to Enforce
Collateral-Attack Waiver Provision in Plea Agreement and to
Dismiss Mr. Aguilera's Motion to Vacate Sentence (Doc.
85). After considering the evidence and the parties'
submissions, the court denies Mr. Aguilera's motion and
grants the government's motion. The court explains why
Aguilera was charged with conspiring to possess with the
intent to distribute 2, 721.6 grams of methamphetamine in
violation of 21 U.S.C. §§ 846 and 841(a)(1) (Docs.
54, 85 at 1). Mr. Aguilera pleaded guilty as part of a plea
agreement with the government (Docs. 54, 85 at 1- 2). That
agreement contained a provision requiring Mr. Aguilera to
waive his right to appeal, collaterally attack, or challenge
his sentence in any way. This provision explicitly included
actions brought under 28 U.S.C. § 2255 (Docs. 54, 85 at
2). The waiver explicitly excluded appellate or
post-conviction challenges based on ineffective assistance of
counsel or prosecutorial misconduct claims (Docs. 54, 85 at
Aguilera's presentence report found a total offense level
of 27 (Docs. 60, 85 at 2). The offense level was adjusted
because Mr. Aguilera qualified for the safety valve under the
United States Sentencing Commission's Guidelines and his
acceptance of responsibility (Docs. 60, 85 at 3). The
presentence report calculated Mr. Aguilera's criminal
history category as I (Docs. 60, 85 at 3). The sentencing
guidelines called for a range of 70 to 87 months'
imprisonment (Docs. 60, 85 at 3). Ultimately, the court
sentenced Mr. Aguilera to 70 months in prison (Docs. 62, 85
Aguilera filed a timely Motion to Vacate Under 28 U.S.C.
§ 2255 on October 3, 2016 (Docs. 80 at 4, 85 at 4-5). He
relies on Amendment 794 to the Sentencing Guidelines, which
allows, in relevant part, for a “defendant who does not
have a proprietary interest in the criminal activity and who
is simply being paid to perform certain tasks” to be
“considered for an adjustment under [the]
guideline” (Doc. 85 at 3-4). U.S. Sentencing Guidelines
Manual § 3B1.2 cmt. n.3(C) (U.S. Sentencing Comm'n
2016). Mr. Aguilera also argues that he played only a minor
role in transporting and delivering the methamphetamine (Doc.
80 at 4). He argues the court imposed an
“[u]nconstitutional sentence” because it did not
give him a minor role sentencing adjustment (Doc. 80 at 4).
government responds by arguing that Mr. Aguilera's Motion
is barred because he waived his right to collaterally attack
his sentence in his written plea agreement with the
government (Docs. 54, 85 at 2). The government also argues
that Mr. Aguilera's waiver is enforceable under a Tenth
Circuit test to determine the enforceability of collateral
attack waivers. United States v.
Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004). The
government moves the court to enforce the collateral attack
waiver and dismiss Mr. Aguilera's Motion. The court
addresses the waiver issue in the section below.
Motion to Vacate Under 28 U.S.C. § 2255
following three sections address whether Mr. Aguilera has
waived the right to collaterally attack his sentence under 28
U.S.C. § 2255 by knowingly and voluntarily entering a
guilty plea. United States v. Hahn, 359 F.3d 1315,
1325 (10th Cir. 2004).
Tenth Circuit addressed the enforceability of collateral
attack waivers in United States v. Hahn.
Id. at 1325-28. Under its test, courts must
determine whether a defendant's appeal or collateral
attack falls within the scope of the waiver, whether the
defendant knowingly and voluntarily waived his appellate
rights, and whether enforcing that waiver would produce a
miscarriage of justice. Id. at 1325. Here, the court
concludes that Mr. Aguilera waived his right to collaterally
attack his sentence under 28 U.S.C. § 2255 in his
written plea agreement and that the court properly can
enforce this waiver.
Hahn, courts must consider, first, whether the
appeal “falls within the scope of the appellate
waiver.” Id. at 1325. Courts are required to
“‘strictly construe'” any waivers in a
defendant's plea agreement and resolve any ambiguities in
favor of a defendant's appellate rights. Id.
(quoting United States v. Andis, 333 F.3d 886, 890
(8th Cir. 2003)).
Mr. Aguilera's appeal under 28 U.S.C. § 2255 falls
directly within the scope of the collateral attack waiver in
his written plea agreement (Doc. 54). Mr. Aguilera waived his
right to challenge or collaterally attack his sentence in any
manner, including a challenge brought under the statute he
cites as grounds for his motion (Doc. 54). See United
States v. Chavez-Salais, 337 F.3d 1170, 1172 (10th Cir.
2003) (determining that collateral attacks include challenges
under 28 U.S.C. § 2255, “that complain about the
substance of, or proceedings that determined, a
defendant's original sentence”). Mr. Aguilera
argues that the court gave him an unconstitutional sentence
by not recognizing that he played only a minor role in
transporting and delivering the methamphetamine he admitted
he possessed (Doc. 80 at 4). But, Mr. Aguilera's plea
agreement required him to waive his right to appeal,
collaterally attack, or challenge his sentence in any way,
including by motions made under 28 U.S.C. § 2255 (Docs.
54, 85 at 2). Even when ...