The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER DENYING DEFENDANT'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE OR CORRECT SENTENCE
Defendant, a prisoner in federal custody proceeding pro se, filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct sentence ("Motion") following his guilty plea and sentencing in Criminal Case No. 02cr625-L and direct appeal from the judgment and sentence. The court issued an order requiring response to the Motion. The government filed a response, and Defendant replied. The Motion is DENIED and this case is DISMISSED WITH PREJUDICE because by the express terms of the Plea Agreement Defendant waived his right to bring the Motion.
Defendant was represented by counsel throughout his criminal case. He was indicted on one charge of conspiracy to distribute 5 kilograms cocaine and 50 grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846. He was involved in a conspiracy with at least fifteen other individuals*fn1 to distribute cocaine base and crack cocaine among members of the West Coast Crips street gang and other individuals. (Indictment filed 3/7/02.) The conspiracy charge carries a maximum penalty of 10 years to life in custody, a maximum fine of $4 million, a $100 mandatory assessment, and five years of supervised release. (Plea Agreement ¶ III; Tr. of Proceedings before the Hon. M. James Lorenz Without a Jury, 4/21/06 ("Dispo.") at 6-7.)
On April 21, 2003, Defendant entered into a Plea Agreement. He admitted to a number of drug transactions, and that he personally delivered approximately two kilograms of crack cocaine. (Plea Agreement ¶ II.B.; Dispo at 11-13.) He agreed to plead guilty, waive his right to trial, appeal and collateral attack, and provide information to the government regarding the offense and the West Coast Crips Gang in exchange for the government's promise not to file a Notice of Enhanced Sentence for a Prior Conviction under 21 U.S.C. § 851, and its agreement to a three level sentencing adjustment for acceptance of responsibility and one level departure for a package deal disposition. (See Plea Agreement ¶¶ I, IV, V, X, XI & XII.) Defendant was sentenced to 235 months in custody, five years of supervised release and a $100 mandatory assessment. (Judgment filed 2/10/06; Tr. of Proceedings before the Hon. M. James Lorenz Without a Jury, 9/4/03 ("Sentencing") at 22-24.)
Defendant makes two contentions in support of his Motion: (1) ineffective assistance of counsel who allegedly promised Defendant a ten-year sentence; and (2) that for this reason Defendant inadvertently waived his right to appeal. In addition, Defendant requests an evidentiary hearing. The court rejects both contentions based on the record regarding the voluntariness of Defendant's guilty plea. An evidentiary hearing is not required because Defendant's claim is conclusory and inherently not credible.
The Plea Agreement informed Defendant that by pleading guilty he would waive certain constitutional and statutory rights, including his right to appeal or collaterally attack his conviction and sentence:
In exchange for the Government's concessions in this plea agreement, defendant waives, to the full extent of the law, any right to appeal or to collaterally attack the conviction and sentence, . . .. (Plea Agreement ¶ XIII (emphasis added).) The Plea Agreement contains one exception to Defendant's waiver:
. . . unless the court imposes a custodial sentence greater than the high end of the offense level recommended by the Government pursuant to this agreement. If the custodial sentence is greater than the high end of the range, the defendant may appeal, . . .. .) Since the court sentenced Defendant to a shorter custodial sentence than the high end of the offense level recommended by the government, the exception does not apply in this case.
The Plea Agreement expressly set forth the agreed upon sentencing recommendations. The parties agreed to a base offense level of 38 and an adjustment of -3 for acceptance of responsibility. The government agreed to recommend a one level departure for a package deal disposition, and Defendant reserved the right to request a departure for a medical/psychological condition and for a combination of factors, which the government could oppose. No agreement was reached as to Defendant's criminal history category. (Id. ¶ X.)
At the sentencing, the court considered the arguments of both counsel. The defense vigorously argued for the statutory minimum 120-month sentence based on Defendant's mental disability. (Sentencing at 2-10.) This included arguments that Defendant's criminal history resulted from his diminished mental capacity and was overstated. That Defendant suffered from some level of diminished mental capacity was not disputed. (Id. at 3, 16 & 20.) Based on the Plea Agreement, the government argued for a sentence of 262 months. (Id. at 19.) According to the government, Defendant reaped a significant benefit from the Plea Agreement because the one level departure for a package deal translated to a 30-months reduction in the custodial sentence.*fn2 (Id.) The government argued against any additional grounds to shorten the custodial sentence. It argued against departing from criminal history category VI because of Defendant's long and serious criminal history, including a prior federal drug felony and a state robbery conviction. (Id. at 12-15, 16-17.) The government further argued against a departure for diminished mental capacity in part because Defendant's mental capacity was reduced at least to some extent due to voluntary drug use, his involvement in the conspiracy indicated the need to protect the public because the offense involved actual violence or serious threat of violence, and because his extensive criminal history indicated the need to protect the public. (Id. at 15-18.) On October 17, 2001, during the investigation, Defendant was arrested for being a felon in possession of a firearm during time of gang violence. (Id. at 13-15.) The government maintained that the surveillance of the situation indicated Defendant agreed to participate in a shooting of a Blood gang member to retaliate for the suicide death of his brother. (Id.)
In imposing the 235-month sentence, the court followed the Plea Agreement. The court found the base offense level to be 38, and granted an adjustment of -3 for acceptance of responsibility. (Id. at 22.) The court also accepted the government's recommendation for a one level departure for group disposition. (Id.) The court declined to depart from criminal history category of VI because it was not overrepresented given the history of the case, the violence involved, and the extent of the drug sales involved. (Id.) The court granted, however, a one level departure for diminished capacity. It found Defendant's diminished capacity was not caused by drug use, although it was accentuated by it. (Id. at 23.) No greater departure was granted due to the need to protect the public, given the serious threat of violence involved in the offense, and Defendant's inability to resist participating in criminal activities. (Id. at 23-24.) This resulted in a Guidelines range of 235 to 295 months, and the court imposed the sentence of 235 months, at the low end of the range, due to Defendant's age. (Id. at 24.) The custodial sentence imposed was lower than the 252-month sentence requested by the government in accordance with the Plea Agreement, lower than the Guideline range of 292 to 365 months recommended by the Probation Department in the Presentence Report, and lower than the mandatory statutory minimum of 240 months, had the government not entered into the Plea Agreement and filed for a section 851 sentencing enhancement (Notice of Enhanced Sentence for a Prior Conviction). Without the plea bargain, with the base offense level of 38 and criminal history category of VI, and assuming one level departure for diminished capacity. Defendant faced a potential custodial sentence in the range of 360 months to life.
After the sentence was pronounced, Defendant expressed his dissatisfaction:
THE DEFENDANT: Your Honor, I would like to say one thing for the record. I would like to [sic] know that I want to appeal this because I want to go to trial. My lawyer had told me ten years. You know what I am saying? The only reason I took this -- I was going to trial. What is the difference, at my age, then taking 20 or then life? Twenty is life to me. So I would like to put a notice of appeal on record today.
Id. at 25-26.) This is the first time Defendant indicated he was promised a shorter sentence.
Defendant appealed, claiming his waiver of appeal was not voluntary, he was legally incompetent to understand and aid in his defense, and that he should have been told at the disposition hearing that the government would have had the burden to prove the amount of drug sales attributable to him beyond reasonable doubt. (Mem., 9th Cir., filed 12/1/04.) The Court of Appeal rejected all of these claims, found the appeal waiver to have been voluntary and free of plain error, and dismissed the appeal. (Id.)
Defendant then filed the instant Motion, wherein he claims his guilty plea was neither knowing nor voluntary because his counsel had promised him that if he pled guilty, he would receive a 120-month custodial sentence, but instead he received a 235-month sentence. He further argues that an evidentiary hearing is necessary because neither the Plea Agreement nor the disposition hearing "shed any light on the advice or promises that Petitioner's attorney made to him." (Reply at 2.) The court disagrees.
At the disposition hearing, the Court reviewed the charge and the Plea Agreement with Defendant. (Dispo. at 4-10.) The court then extensively questioned Defendant about any promises extraneous to the Plea Agreement, which he unequivocally denied, and the voluntariness of his plea and understanding of the ...