U.S. v. ABARCA

CANBY, Circuit Judge:

Rodolfo Abarca-Espinoza1 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. § 3742,2 and his collateral action, under 28 U.S.C. § 2255,3 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 sentencing decision. This claim constitutes a "sentencing issue," and Abarca's waiver forecloses him from raising it on appeal under 18 U.S.C. § 3742. United States v. Navarro-Botello, 912 F.2d 318, 321-22 (9th Cir. 1990), cert. denied, ___ U.S. ___, 112 S.Ct. 1488, 117 L.Ed.2d 629 (1992).

In addition, Abarca may not assert the issue in a petition for relief under 28 U.S.C. § 2255. Like the right to bring a direct appeal of his sentence, the right Abarca seeks to exercise in bringing a collateral attack is statutory. See Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2038, 52 L.Ed.2d 651 (1977) ("The right of appeal, as we presently know it in criminal cases, is purely a creature of statute. ..."). A knowing and voluntary waiver of a statutory right is enforceable. Navarro-Botello, 912 F.2d at 321. While we do not hold that Abarca's waiver categorically forecloses him from bringing any section 2255 proceeding, such as a claim of ineffective assistance of counsel or involuntariness of waiver, United States v. Marin, 961 F.2d 493, 496 (4th Cir.1992); United States v. Rutan, 956 F.2d 827, 829-30 (8th Cir.1992); Navarro-Botello, 912 F.2d at 321, the question of the degree of his culpability is an issue clearly contemplated by, and subject to, his plea agreement waiver.

We hold that Abarca has relinquished his right to seek relief, direct or collateral, from his sentence on the ground that he has discovered new exculpatory evidence that undermines the factual basis of the trial court's sentencing decision.

AFFIRMED.