The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
MEMORANDUM OPINION AND ORDER ON PETITIONER'S MOTION TO CORRECT, VACATE OR SET ASIDE SENTENCE PURSUANT TO 28 U.S.C. § 2255 AND CERTIFYING ISSUES FOR APPEAL (28 U.S.C. § 2255)
In this case, petitioner Efrain Soto ("Petitioner") seeks relief under 28 U.S.C. section 2255 from the sentence of 210 months that was imposed by this court on December 10, 2007, following petitioner's entry of a plea of guilty to one count of possession of methamphetamine with intent to distribute and conspiracy in violation 21 U.S.C. § 841(a)(1) and 846. For the reasons that follow, Petitioner's motion will be dismissed in its entirety and issues raised in Petitioner's motion will be certified for appeal.
FACTUAL AND PROCEDURAL HISTORY
Petitioner was one of six defendants arrested on or about September 14, 2006, in connection with a large methamphetamine manufacturing and sales operation in Kern County. On July 5, 2006, and on July 27, 2006 police officers observed Petitioner transporting and delivering packages that together contained 222 grams of material containing approximately 127 grams of methamphetamine. On September 14, 2006, officers executed a search on Petitioner's residence. From the bedroom of the residence, officers recovered about 960 grams of a mixture containing about 856 grams of actual methamphetamine. An unloaded shotgun and about $82,000 in cash were found in a closet in the bedroom. The cash was apparently located in a safe that was located in the closet.
Petitioner entered a plea of guilty on September 4, 2007, pursuant to a negotiated plea agreement. In the plea agreement and in the plea colloquy, Petitioner admitted his participation in the conspiracy and admitted his offensive conduct involved a total of 1749.8 grams of a substance containing approximately 1538.2 grams of methamphetamine. The plea agreement also contained a comprehensive waiver of rights to appeal or to collaterally attack the sentence. In the plea agreement, the government agreed to recommend a three-level reduction in the offense and to recommend sentencing at the bottom of the guideline range. Pertinent to this motion, neither the plea agreement or the plea colloquy contained any reference to a dangerous weapon or to the possibility of any enhancement of the sentence based on the discovery of the shotgun that was found in Petitioner's bedroom closet.
Petitioner was sentenced on December 10, 2007. At the sentencing hearing the following discussion was had:
THE COURT: All right, on behalf of [Petitioner,] are there any additions or corrections or comments regarding sentencing?
MR. LoSTRACCO: Your Honor, I do have some comments.
MR. LoSTRACCO: Pursuant to the plea agreement and the factual basis set forth in the plea agreement, we would ask the court not to impose the two-level addition as specified on pages 6 and 7 [of the Presentence Investigation Report ("PIR")], item number 18. The - -with the shotgun found the defendant's closet. This was not - - I did not participate in the preplea negotiations. I wasn't attorney of record at the time of the plea. But in speaking with Mr. Garland, it's my understanding the shotgun was never anticipated as being part of this plea and the factual basis. So I'd ask the Court not to impose that two-level increase.As to the rest, we would submit it on the pleadings.
THE COURT: On behalf if the Government?
MS. SERVATIUS: Your Honor, the gun was not - - the Government did not agree that it would not recommend the gun, and it did not agree that the gun was not part of the plea agreement. It just didn't discuss the gun in the plea agreement. So it would appear that given the presence of the shotgun in the same master bedroom closet as where the safe was located, that had approximately $82,000 in cash, it is not clearly probable that the gun was related to the offense [sic]. The drugs in that residence were also stored in the bedroom. ¶ So based on that, the Government would ask that the [court] follow the recommendation of the probation office.
THE COURT: Let me turn back to the defense then. All I can say is the if there was no specific agreement, I do note that as defense counsel pointed out, that at page 6 [of the PIR] and [page] 7, paragraph 18, the factual basis for the enhancement has been set forth. I don't know if there is any dispute on that or any other issues that relate to that, but otherwise, it would appear that the Court would have to take that into consideration.
MR. LoSTRACCO: Yes your Honor. I was just pointing out that in the plea that defendant entered, there was never any mention of the gun in the factual scenario in the plea agreement. The defendant never admitted to possessing that gun. And he was not home of the time of that - - if that makes any difference, but he was elsewhere at the time of the search warrant [sic].
THE COURT: Okay. But, again, that's all I have in front of me. So I'll leave it to counsel, but otherwise, if I applied it, then, the guideline range as indicated by the probation office would apply. That the bottom of that would be the 210 months, and I would factor that in a far as imposing a reasonable sentence, and it would otherwise appear that 210 months would be a reasonable sentence.
Anything further by the defense, then?
MR. LoSTRACCO: No, Your Honor. ...