The opinion of the court was delivered by: Christina A. Snyder United States District Judge
ORDER DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT HIS SENTENCE PURSUANT TO 28 U.S.C. § 2255
On October 18, 2010, petitioner filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C.§ 2255. On October 26, 2010, petitioner filed a second, identical motion under 28 U.S.C. § 2255. The government filed its opposition on November 29, 2010. Petitioner did not file a reply. The motions are currently before the Court.
On March 31, 2009, the parties filed a binding plea agreement pursuant Fed. R. Crim. Pro. 11(c)(1)(C) in which petitioner agreed to plead guilty to one count of Illegal Alien Found in the United States Following Deportation, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). The binding plea agreement provided that petitioner's total offense level was 17, which included a 16-level enhancement for a prior drug trafficking conviction, plus a 4-level reduction for early disposition pursuant to U.S.S.G. § 5K3.1. Specifically, the 16-level enhancement was based on petitioner's prior conviction for Possession for Sale of Cocaine Hydrochloride, in violation of California Penal Code § 11351, and Possession for Sale of Methamphetamine, in violation of California Penal Code § 11378, for which petitioner was sentenced to six years imprisonment and ultimately deported on December 20, 1999. Exhibit A to Opp.
As part of the plea agreement, the parties agreed that petitioner should be sentenced to the low end of the applicable Guidelines range for an offense level 17 and the criminal history category to be determined by the Court.
On May 6, 2009, petitioner pled guilty to the single count information. On October 22, 2009, petitioner, through his prior counsel, filed his sentencing petition, requesting a sentence of 27 months imprisonment, which represented the low end of the Guidelines range for an offense level 17 and a criminal history category of II. On November 3, 2009, the government filed its sentencing position, also recommending a 27-month sentence based upon a total offense level ...