The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is the motion to vacate judgment set aside or correct conviction and sentence pursuant to 28 U.S.C. § 2255 filed by Defendant Pedro Cruz-Tercero. (Doc. # 47).
On October 16, 2007, Defendant was apprehended following a brief chase by Border Patrol Agents on Highway 76 in northern San Diego. Defendant was advised of his Miranda rights and gave a statement in which he admitted his prior deportation, his failure to apply for readmission into the United States, and his prior convictions. On October 17, 2007, the Government filed a complaint pursuant to 8 U.S.C. § 1326. On October 17, 2007 Defendant appeared before Magistrate Judge and Norma Aguilar was appointed as defense counsel .
On October 30, 2007, the Assistant United States Attorney ("AUSA") offered the Defendant a plea agreement through a letter to defense counsel. The plea letter stated that the parties would recommend a base offense level of eight, increased by 16 levels for Defendant's prior aggravated felony conviction, and a three-level adjustment for acceptance of responsibility. The Government would recommend the low-end of the guideline range in exchange for Defendant's waiver of appellate rights. The letter further stated that the Government had estimated Defendant was in Criminal History Category IV, but that there was no agreement regarding Defendant's actual criminal history. Defendant rejected the plea offer on November 2, 2007. (Doc. #51 at 3).
On November 7, 2007, Defendant was charged in a single count indictment with being a deported alien found in the United States, in violation of 8 U.S.C. §§ 1326(a) and (b). On November 15, 2007, Defendant entered a not guilty plea to the indictment and attorney Daniel Casillas was substituted as Defendant's appointed counsel. Casillas filed pleadings on Defendant's behalf and this Court scheduled a trial for February 26, 2008. On February 12, 2008, Defendant requested new counsel. On February 19, 2008, the Defendant retained Christian De Olivas as counsel. The trial date of February 26, 2008 was vacated and re-set for March 18, 2008. On March 18, 2008, Defendant waived jury and was convicted after a trial to the Court.
On June 16, 2008, the Court held a sentencing hearing. The Court found that the base offense level was eight under U.S.S.G. § 2L1.2(a), and applied a 16-level increase pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(2), as a result of Defendant's deportation subsequent to a conviction in 2000 for assault with an automatic firearm. The Court applied a two-level reduction for acceptance of responsibility. The Court found that the total offense level was 22, the Criminal History Category was V, and the advisory guideline range was 77-96 months. After full consideration of all factors set forth in 18 U.S.C. § 3553, the Court found that 80 months was a reasonable sentence. The Court sentenced the Defendant to 80 months imprisonment, followed by a three-year term of supervised release.
Defendant appealed. (Doc. # 36). On March 24, 2009, the Court of Appeals for the Ninth Circuit affirmed Defendant's conviction and sentence. (Doc. # 44). .
On March 15, 2010, Defendant filed a motion to vacate, set aside or correct under 28 U.S.C. § 2255 on the grounds that he was deprived of the effective assistance of counsel. Defendant specifically asserts that he "lost the 57-month plea offer of the government for the 'gross mischaracterization' of the effects of going to trial." (Doc. # 47 at 3). Defendant further asserts that the "forfeiture of the opportunity for a 3-level reduction for acceptance of responsibility can constitute prejudice." Id.
Plaintiff United States filed a Response in Opposition. (Doc. # 51). Defendant filed a Traverse. (Doc. # 52).
Defendant moves the Court to vacate, set aside, or correct his sentence on the grounds that he was denied effective assistance of counsel. Defendant asserts that he rejected the plea offer based on gross misrepresentations by defense counsel regarding the plea offer, the risks of imprisonment after trial, and the benefits of proceeding to a bench trial. Defendant contends that defense counsel De Olivas failed to advise him of the effects of rejecting the proposed plea offer and advised him that going to trial was the best way to obtain a 30-month sentence. Defendant requests an evidentiary hearing to resolve the issues and to grant him the relief requested in his Section 2255 motion. (Doc. # 52 at 9). In the alternative, Defendant requests that this Court vacate the 80-month sentence previously imposed and resentence him to the 57 months offered in the plea agreement. Id.
Plaintiff United States asserts that Defendant's contention that he lost a 57-month plea offer as a result of defense counsel's misrepresentation is contrary to the facts in the record. Plaintiff United States asserts that, "at no time was Defendant offered a plea deal of 57-months of custody." Id. at 8. Plaintiff United States further contends that Defendant "incorrectly asserts that Mr. De Olivas was responsible for advising Defendant to decline the Government's offer." Id. Plaintiff United States asserts that "Defendant did not receive any assistance from Mr. De Olivas regarding the plea, his assistance could not have been deficient." Id. at 9. Plaintiff United States asserts that Defendant's conclusory allegations regarding defense counsel are unsupported by the facts in the record and that the Defendant cannot show prejudice. Plaintiff United States asserts ...