Duarte-Rosas

MEMORANDUM *

Isarael Duarte-Rosas appeals the district court’s denial of his motion to vacate his sentence pursuant to 28 U.S.C. § 2255 . Duarte contends that the factual basis in his plea agreement, that he sent heroin to Guam via U.S. mail and traveled over international waters on a direct flight from California to Guam to receive payment for previous shipments, does not constitute conspiracy to import heroin under 21 U.S.C. § 952 (a). He explains that United States v. Cabaccang, 332 F.3d 622, 626-27 (9th Cir.2003) (en banc), which was decided after Duarte was sentenced, held that traveling over international waters was insufficient for the “place outside” the United States requirement of importation. The district court denied Duarte’s motion on two independent grounds: (1) Duarte’s “plea agreement expressly waived his right to collaterally attack his sentence,” and (2) Duarte “procedurally defaulted his claim” by failing to prove either cause and prejudice or actual innocence. We have jurisdiction to review his motion pursuant to 28 U.S.C. § 2253 (a), and we reverse.

*522 The district court raised sua sponte the argument that Duarte waived his right to collaterally attack his…