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Pineda-Sanchez v. United States

United States District Court, N.D. Georgia, Atlanta Division

October 12, 2017

ALIER PINEDA-SANCHEZ, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Magistrate Judge Linda T. Walker's Final Report and Recommendation [187] (“R&R”), recommending that Movant Alier Pineda-Sanchez's (“Movant”) Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [181] (“§ 2255 Motion”) be denied, that civil action number 1:16-cv-3332-WSD be dismissed, and that a certificate of appealability be denied. Also before the Court are Movant's Objections [191] to the R&R.[1]

         I. BACKGROUND

         On September 18, 2013, a grand jury in the Northern District of Georgia returned an Indictment [1] charging Movant with one count of conspiring to possess with intent to distribute cocaine, heroin, and methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(A)(viii) and (ii), 841(b)(1)(C), and 846. ([1]). On May 16, 2014, Movant entered into a written plea agreement and pled guilty to the charge alleged in the Indictment. ([90]; [103]). Movant's Plea Agreement [90.1] includes the following “Limited Waiver of Appeal” provision:

LIMITED WAIVER OF APPEAL: To the maximum extent permitted by federal law, the Defendant voluntarily and expressly waives the right to appeal his conviction and sentence and the right to collaterally attack his conviction and sentence in any post-conviction proceeding (including, but not limited to, motions filed pursuant to 28 U.S.C. § 2255) on any ground, except that the Defendant may file a direct appeal of:
a. an upward departure or variance above the sentencing guideline range as calculated by the district court; and/or
b. the sentencing court's finding as to the application of Section 2D1.1 (b)(12) and 2D1.1 (b)(13) of the Sentencing Guidelines.
The Defendant understands that this Plea Agreement does not limit the Government's right to appeal, but if the Government initiates a direct appeal of the sentence imposed, the Defendant may file a cross-appeal of that same sentence.

([90.1] at 8). Movant signed the Plea Agreement, and separately signed the following addendum:

I have read the Indictment against me and have discussed it with my attorney. I understand the charges and the elements of each charge that the Government would have to prove to convict me at a trial. I have read the foregoing Plea Agreement and have carefully reviewed every part of it with my attorney. I understand the terms and conditions contained in the Plea Agreement, and I voluntarily agree to them. I also have discussed with my attorney the rights I may have to appeal or challenge my conviction and sentence, and I understand that the appeal waiver contained in the Plea Agreement will prevent me, with the narrow exceptions stated, from appealing my conviction and sentence or challenging my conviction and sentence in any post-conviction proceeding. No one has threatened or forced me to plead guilty, and no promises or inducements have been made to me other than those discussed in the Plea Agreement. The discussions between my attorney and the Government toward reaching a negotiated plea in this case took place with my permission. I am fully satisfied with the representation provided to me by my attorney in this case.

([90.1] at 11). Movant's attorney also certified, at the bottom of the Plea Agreement, that, “[t]o [his] knowledge, [his] client [was] making an informed and voluntary decision to plead guilty and to enter into the Plea Agreement.” ([90.1] at 11). The Court accepted Movant's guilty plea as knowing and voluntary, and sentenced him to 240 months in prison. ([138]; [143]).

         On December 1, 2014, Movant filed his Notice of Appeal [145], challenging his sentence on the grounds that “it is greater than necessary to serve the sentencing goals of 18 U.S.C. § 3553(a).” ([164] at 5). On May 29, 2015, the Court of Appeals for the Eleventh Circuit dismissed Movant's appeal, finding it was barred by the appeal waiver in Movant's Plea Agreement because the “waiver is enforceable” and “no exception to the waiver applies.” ([164] at 6).

         On September 2, 2016, Movant, proceeding pro se, filed his § 2255 Motion challenging his sentence on the grounds that (1) the Court “arbitrarily imposed a predetermined sentence, ” (2) the Government “fail[ed] to give [him] fair notice of the punishment he was facing, ” and (3) Movant's attorney was constitutionally ineffective for failing to raise or seek relief on grounds (1) and (2). ([181] at 4-6). On September 20, 2016, the Magistrate Judge issued her R&R, recommending that Movant's § 2255 Motion be denied on the grounds that it is barred by the appeal waiver in Movant's Plea Agreement. The Magistrate Judge further recommended that a certificate of appealability be denied. On September 29, 2016, Movant filed his Objections to the R&R.

         II. ...


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