United States v. Rodolfo Espinoza Abarca, United States of America v. Espinoza Rodolfo Abarca

Rodolfo Abarca-Espinoza 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 , and his collateral action, under 28 U.S.C. § 2255 , 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…