INTRODUCTION

18 Pending before the Court is Defendant Francisco Javier Ortiz-Luna (“Defendant”) 19 motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. See Doc. No. 20 145. Plaintiff, the United States of America (“Government”), filed a response in opposition 21 to Defendant’s motion. See Doc. No. 161. Having carefully considered the pleadings in 22 this action and for the reasons set forth below, the Court hereby DENIES Defendant’s 23 motion. 24

BACKGROUND

25 On April 27, 2016, an eight-count indictment was filed charging Defendant and 4 26 co-defendants as follows: Count one with 21 U.S.C. §§ 952, 960, and 963, conspiracy to 27 import controlled substances; Count two with 21 U.S.C. §§ 841(a)(1) and 846, conspiracy 28 1 to distribute methamphetamine; Count three with 21 U.S.C. §§ 841(a)(1) and 846, 2 conspiracy to distribute heroin; Count four with 21 U.S.C. §§ 952 and 960, importation of 3 methamphetamine; Count five with 21 U.S.C. § 841(a)(1), possession with intent to 4 distribute methamphetamine; Count Six with 21 U.S.C. §§ 952 and 960, importation of 5 heroin, and 18 U.S.C § 2, aiding and abetting; Count seven with 21 U.S.C. §§ 952 and 960, 6 importation of heroin, and 18 U.S.C. § 2, aiding and abetting; and Count eight with 21 7 U.S.C. § 841(a)(1), possession of heroin with intent to distribute. See Doc. No. 85 at 4. 8 Defendant was charged with Counts 1-3, and 5-6. Id. 9 On September 13, 2016, Defendant entered into a plea agreement and pled guilty to 10 Count 1, conspiracy to import controlled substances. See Doc. No. 71. The Court sentenced 11 Defendant to a 75-month term of imprisonment followed by 5 years of supervised release. 12 See Doc. No. 126. On June 6, 2017, Defendant filed the instant motion to vacate, set aside, 13 or correct sentence pursuant to 28 U.S.C. § 2255. See Doc. No. 145. The Government filed 14 a response in opposition to Defendant’s motion. See Doc. No. 161. 15 LEGAL STANDARD 16 A section 2255 motion may be brought to vacate, set aside or correct a sentence on 17 the following grounds: (1) the sentence “was imposed in violation of the Constitution or 18 laws of the United States,” (2) “the court was without jurisdiction to impose such 19 sentence,” (3) “the sentence was in excess of the maximum authorized by law,” or (4) the 20 sentence is “otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). Habeas relief is 21 available to correct errors of jurisdiction and constitutional error, but a general “error of 22 law does not provide a basis for collateral attack unless the claimed error constituted a 23 fundamental defect which inherently results in a complete miscarriage of justice.” United 24 States v. Addonizio, 442 U.S. 178, 185 (1979). The petitioner carries the burden of 25 establishing that he is entitled to post-conviction relief pursuant to 28 U.S.C. § 2255. See 26 United States v. Frady, 456 U.S. 152, 170 (1982). 27 28 1 DISCUSSION 2 Defendant contends that he received ineffective assistance of counsel for the 3 following reasons: (1) lack of advice from his counsel; (2) failure to advise appellate rights; 4 (3) failure to obtain “fast track” points; and (4) failure to obtain Government cooperation 5 points. See Doc. No. 145 at 4-6, 8. Under the Sixth Amendment, criminal defendants are 6 entitled to “effective assistance of counsel,” in which representation is objectively 7 reasonable in light of “prevailing professional norms.” Strickland v. Washington, 466 U.S. 8 668, 686-688 (1984). To sustain a claim for ineffective assistance, a petitioner has the 9 burden of satisfying Strickland’s two-prong standard. Id. First, “defendant must show that 10 counsel's performance was deficient. This requires a showing that counsel made errors so 11 serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the 12 Sixth Amendment.” Id. at 687. Second, “defendant must show that the deficient 13 performance prejudiced the defense.” Id. This requires “showing that the counsel's errors 14 were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” 15 Id. 16 1. Ground One—Lack of Advice from Counsel 17 Defendant alleges that his counsel provided ineffective assistance by pushing him to 18 sign the plea agreement. See Doc. No. 145 at 4. Defendant also claims that his counsel 19 failed to advise him of his sixth amendment right to testify. Id. 20 First, Rule 11 of the Federal Rules of Criminal Procedure provides that courts must 21 address a criminal defendant personally and in open court to ensure that the plea is 22 voluntary and not caused by force threats or other promises. See Fed. R. Crim. P. 11. The 23 trial judge must make an affirmative finding that a plea of guilty is made intelligent and 24 voluntary. Boykin v. Alabama, 395 U.S. 238, 240 (1969). Furthermore, a defendant must 25 have a sufficient present ability to “consult a lawyer with a reasonable degree of rational 26 understanding and have a rational as well as factual understanding of the proceedings 27 against him.” Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam). 28 1 Here, Defendant initialed each page of the plea agreement, which states that 2 “Defendant has had a full opportunity to discuss all the facts and circumstances of this case 3 with defense counsel and has a clear understanding of the charges and the consequences of 4 this plea.” See Doc. No. 71 at 7. Defendant also initialed that “[n]o one has threatened 5 defendant or defendant's family to induce this guilty plea.” Id. Moreover, the record 6 indicates that Defendant was addressed in open court before the Magistrate Judge to ensure 7 that the plea was voluntary and not caused by threats or other promises. See Doc. No. 161- 8 2 at 11. During the hearing, the Magistrate Judge also asked if Defendant had any questions 9 or clarifications, in which Defendant responded, “No.” See Id. 10 Defendant was represented by Adriana Cespedes (“Counsel”), who has been 11 licensed to practice law in California since 2007. See Doc. No. 161-1, Exh. 1 at 2. She has 12 been practicing criminal defense throughout her legal career. Id. In Counsel’s sworn 13 declaration, she indicates that she met with Defendant approximately five times and was 14 able to consult with him in Spanish (Defendant’s native language). See Doc. No. 161-1, 15 Exh. 1 at 3. During those meetings, Counsel discussed his case, the evidence against him, 16 and the plea agreement offered by the Government. Id. Furthermore, once Defendant pled 17 guilty, Counsel once again reviewed the plea agreement with Defendant. Id. The evidence 18 provided suggests Defendant had a factual and reasonable degree of understanding of the 19 proceedings against him. Therefore, the Court finds that Defendant’s guilty plea was 20 intelligent and voluntary. 21 Next, Defendant contends that Counsel failed to advise him of his trial rights, such 22 as his Sixth Amendment right to testify. See Doc. No. 145 at 4. The language in plea states 23 that “Defendant understands that this guilty plea waives the right to: …(B) A speed and 24 public trial by jury;… (E) Testify and present evidence and to have witnesses testify on 25 behalf of defendant; and, not testify and present evidence and to have witnesses testify on 26 behalf of defendant.” See Doc. No. 71 at 6. To solidify Defendant’s acknowledgement and 27 understanding of his waiver of trial rights, he initialed section 4 on page 6 of the plea 28 agreement titled “DEFENDANT’S WAIVER OF TRIAL RIGHTS.” Id. Counsel also 1 advised Defendant of the constitutional rights being waived prior Defendant signing the 2 plea agreement. See Doc. No. 161-1, Exh. 1 at 3. Moreover, at the change of plea hearing, 3 Defendant affirmed that he understood the constitutional rights being waived as a result of 4 agreeing to sign the plea agreement. See Doc. No. 161-2 at 5-6. Therefore, Defendant has 5 not provided sufficient facts to indicate Counsel was ineffective in advising him of his trial 6 rights. As a result, Defendant is unable to satisfy the first prong of the Strickland standard 7 for ineffective assistance of counsel. 8 2. Ground Two--Failure to Advise Appellate Rights 9 Second, Defendant asserts that Counsel was ineffective by failing to advise him of 10 his appellate rights. See Doc. No. 145 at 5-6, 8-9. “A waiver of appellate rights is 11 enforceable if (1) the language of the waiver encompasses his right to appeal on the grounds 12 raised, and (2) the waiver is knowingly and voluntarily made.” United States v. Medina- 13 Carrasco, 815 F.3d 457, 461 (9th Cir. 2016). To determine whether an appeal waiver was 14 knowingly and voluntarily made, the court must “look ‘to the circumstances surrounding 15 the signing and entry of the plea agreement to determine whether the defendant agreed to 16 its terms knowingly and voluntarily.’” United States v. Lo, 839 F.3d 777, 783–84 (9th Cir. 17 2016) (quoting United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996)). This 18 requires the court to consider “the express language of the waiver and the facts and 19 circumstances surrounding the signing and entry of the plea agreement, including 20 compliance with Federal Rule of Criminal Procedure 11.” United States v. Nguyen, 235 21 F.3d 1179, 1182 (9th Cir. 2000), abrogated on other grounds by United States v. Rahman, 22 642 F.3d 1257, 1259 (9th Cir. 2011). 23 Here, the plea agreement contains a provision regarding waiver of Defendant’s 24 appellate rights. See Doc. No. 71 at 12. The language in the plea agreement states that 25 “defendant waives, … any right to appeal or to collaterally attack the conviction and any 26 lawful restitution order… defendant also waives any right to appeal or to collaterally attack 27 the sentence….” Id. Defendant initialed the page acknowledging that he knowingly and 28 voluntarily waived his appellate rights in exchange for the terms expressed in the plea 1 agreement. Id. Defendant’s actions signify that he understood and acknowledged his 2 appellate rights were being waived. Moreover, as discussed above, Counsel explained 3 Defendant’s waiver of appellate rights prior to Defendant signing the plea agreement. 4 Nevertheless, “a statement by the defendant and his attorney that they discussed the 5 nature of the charge is ... insufficient to satisfy Rule 11(c), because vague references to [a] 6 discussion of ‘the charges' and ‘the nature of the charges' does not provide a complete 7 record showing compliance with Rule 11(c).” United States v. Portillo-Cano, 192 F.3d 8 1246, 1251 (9th Cir. 1999) (quoting United States v. Smith, 60 F.3d 595, 598 (9th Cir. 9 1995)) (internal quotations omitted). The court is required to “address the defendant 10 personally in open court and inform [him] of, and determine that the defendant understands 11 ... the nature of the charge to which the plea is offered.” Fed. R. Crim. P. 11(c)(1); United 12 States v. Pena, 314 F.3d 1152, 1155-1156 (9th Cir. 2003). 13 Here, the Court advised Defendant of his right to appeal and that signing the plea 14 agreement will waive such right. See Doc. No. 161-2 at 10. The Court also reviewed the 15 plea agreement and confirmed that Defendant’s initials were on each page. Id. By 16 defendant responding that he understood the Court and confirming his understanding of 17 the plea agreement with his initials, Defendant’s waiver was knowing and voluntary. See 18 Id. Furthermore, at Defendant’s sentencing hearing, the Court confirmed Defendant’s 19 waiver by asking, “Do you understand you’ve waived your right to appeal and to 20 collaterally attack your conviction and sentence?” See Doc. No. 158 at 18. Defendant 21 responded, “Yes.” Id. As such, Defendant is unable to satisfy the first prong of the 22 Strickland standard for ineffective assistance of counsel. 23 3. Ground Three--Failure to Obtain “Fast-Track” Points 24 Next, Defendant claims Counsel was ineffective for failing to obtain “fast-track” 25 points. See Doc. No. 145 at 6. A defendant seeking to challenge the validity of his 26 conviction on the ground of ineffective assistance of counsel must demonstrate that his 27 counsel's performance was deficient and was prejudiced as a result of the deficiency. 28 Strickland, 466 U.S. at 687–88. Prejudice is established by a showing of a reasonable 1 probability that “the end result of the criminal process would have been more favorable by 2 reason of a plea to a lesser charge or a sentence of less prison time.” Missouri v. Frye, 566 3 U.S. 137, 147 (2012). 4 Here, Defendant fails to show that his counsel failed to obtain “fast track” points. As 5 stated in the plea agreement, Defendant was provided “fast-track” points in which he 6 received a minus four downward departure, pursuant to United States Sentencing 7 Guidelines (“USSG” or “Guidelines”) § 5K3.1. See Doc. Nos. 71, 85 at 9, 21. Counsel’s 8 performance was neither deficient nor prejudicial as Defendant received the benefit of 9 “fast-track” points. Therefore, Defendant fails to satisfy the first prong Strickland standard 10 for ineffective assistance of counsel. 11 4. Ground Four--Failure to Obtain Government Cooperation 12 Finally, Defendant claims Counsel was ineffective for failing to obtain cooperation 13 points for providing substantial assistance to the government under § 5K1.1 of the USSG. 14 See Doc. No. 145 at 8. “Section 5K1.1 permits a district court to depart from the Guidelines 15 “[u]pon motion of the government stating that the defendant has provided substantial 16 assistance in the investigation or prosecution of another person who has committed an 17 offense.” See U.S.S.G. § 5K1.1. Section 5K1.1 allows the government to move for a 18 departure when a defendant has substantially assisted, but it imposes no duty to do so. See 19 Wade v. United States, 504 U.S. 181, 185 (1992); see also United States v. Arishi, 54 F.3d 20 596, 597 (9th Cir. 1995). “Even if a defendant has provided substantial assistance, [the 21 Court] may not grant relief unless the government's refusal to file a § 5K1.1 motion was 22 based on impermissible motives, constituted a breach of a plea agreement, or was not 23 rationally related to a legitimate governmental purpose.” United States v. Flores, 559 F.3d 24 1016, 1019 (9th Cir. 2009); see also U.S. v. De La Fuente, 8 F.3d 1333, 1340 (9th Cir. 25 1993) (holding that the court has the power to depart downward without such a motion if 26 the government acted unconstitutionally in declining to file a motion for cooperation 27 points). 28 1 Here, Defendant’s counsel did not fail to make a Section □□ □□□ motion because the 2 ||record does not provide that the Government was willing to recommend the downward 3 departure. See Doc. Nos. 71, 85, 158, 161. Since the Government did not file a motion, 4 ||Counsel did not provide deficient nor was Defendant prejudiced as a result of Counsel’s 5 || performance. Moreover, neither the record nor Defendant provides facts to suggest that the 6 ||Government’s decision to not file a motion was based on impermissible motives, 7 ||constituted a breach of a plea agreement, unconstitutional, or not related to a legitimate 8 ||governmental purpose. As a result, Defendant fails to satisfy the first prong of the 9 || Strickland standard for ineffective assistance of counsel. 10 CONCLUSION 11 For all the reasons discussed above, IT IS HERE BY ORDERED that Defendant’s 12 || motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 is DENIED. 13 IT IS SO ORDERED. 14 15 16 17 |} DATED: December 1, 2020 \ 19 Hgn. John A. Houston 0 Jnited States District Judge 21 22 23 24 25 26 27 28