The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Movant, Felix Jauregui, seeks relief under 28 U.S.C. § 2255 from a sentence of 168 months imprisonment after Juaregui pleaded guilty to one count of conspiracy to distribute methamphetamine. Movant's motion to vacate, set aside or correct sentence is not clear as to his claims, and claims raised in headings on the pre-printed form are not supported by the Memorandum of Law attached to the motion. At an evidentiary hearing on June 1, 2012, it was readily determined that the Movant had little or no knowledge of the claims contained in his motion and that the memorandum of law had been prepared by a fellow inmate. Understanding that Movant is acting pro se, this court has generously interpreted his motion to raise the following claims:*fn1 (1) counsel was ineffective at sentencing for failing to challenge the allegedly incorrectly calculated sentencing guideline range pursuant to the United States Sentencing Guidelines ("Claim I"); (2) counsel was ineffective in failing to challenge the amount of actual methamphetamine, resulting in a miscalculation of his sentence ("Claim II"); (3) counsel was ineffective for failing to raise on appeal a challenge to Movant's sentence on the ground that the factual basis in support of his plea did not support a conviction for conspiracy and failing to appeal the district court's finding that Petitioner's sentence should be extended for possession of a firearm("Claim III"); (4) counsel was ineffective for failing to advise Movant to accept a plea agreement from the government, rather than pleading guilty without any such agreement in place, resulting in a longer sentence ("Claim IV"); and, (5) the trial court committed error by failing to follow the procedures set forth in Federal Rule of Criminal Procedure 11(b) at the change of plea hearing ("Claim V"). Respondent filed an Answer in opposition to the motion arguing that Movant's claims should be denied on the merits without a hearing. Movant did not file a reply to the Answer.
The evidentiary hearing on June 1, 2012, was held to determine the prejudice, if any, suffered by Movant as it related to his fourth claim. Specifically, the hearing was held to determine whether Movant could show that he likely would have received a shorter sentence had he accepted a plea agreement offered by the government rather than pleading guilty without the benefit of a plea agreement.
I. FACTUAL AND PROCEDURAL BACKGROUND
Movant was one of nine persons named in an eighteen count indictment which issued in December of 2007. See Docket No. 34. Movant was charged with one count of conspiring to distribute methamphetamine, 21 U.S.C. §§ 846 & 841, four counts of distributing methamphetamine, id. § 841(a)(1), two counts of using a communication facility in furtherance of a drug offense, id. § 843(b), and one count of possessing with the intent to distribute methamphetamine, id. § 841(a)(1). On January 16, 2009, Movant entered a guilty plea to one count of conspiracy to distribute methamphetamine. See Docket No. 105. While the plea was not the result of a plea agreement with the government, the government dismissed the rest of the charges against Movant. See Docket No. 191.
At Movant's change of plea hearing, Movant's counsel offered the following factual basis for Movant's plea:
[Mr. Jauregui] agrees that he, and others, including, but not limited to Cesar Quintero-Felix and Genaro Luna . . . conspired to sell - to distribute more than 50 grams of actual methamphetamine in the Reastern District of California. Pursuant to that agreement, Mr. Jauregui received methamphetamine from Quintero-Felix, and distributed it to Mr. Luna and to others from his place of business located on Miner Street in Stockton, California. In furtherance of that agreement, Mr. Jauregui also delivered methamphetamine to a DEA confidential source on March 5, July 2, and September 13, 2007. He acknowledges that the law enforcement personnel executed a search warrant at his residence and business on December 12, 2007, and that drugs and drug related items connected to the conspiracy were seized. He does acknowledge that a firearm was found in the master bedroom of his residence, but denies it was used to possess in any way in connection with his actions in furtherance of the conspiracy.
Government's Opp., Ex. C, at 12-13. The government added that if the case were taken to trial, the government would "prove that there was, in fact, a conspiratorial relationship between Mr. Jauregui, Mr. Quintero-Felix, and Mr. Lunda, including evidence that methamphetamine was provided by Quintero-Felix to Mr. Jauregui on credit, or as a front, and that Mr. Jauregui provided methamphetamine to Mr. Luna on credit, and that all of those parties had the expectation that the methamphetamine that was being provided on credit would be paid for with the proceeds from subsequent sales, so that there was not merely a buyer-seller relationship between these co-defendants but, in fact, a conspiratorial relationship." Id. at 14. Movant's counsel accepted this addition, and Movant agreed that he had done what both his and the government's counsel had stated. Id.
In the presentence report, the Probation Officer recommended a sentence of 254 months. Concluding that Movant was directly responsible for 830.8 grams of actual methamphetamine, the presentence report determined that the base level for the offense under the United States Sentencing Guidelines was 36. Presentence Report [Hereinafter "P.S.R."] at ¶¶ 53, 59; U.S.S.G. § 2D1.1(c)(2). The presentence report then recommended a two level enhancement for possession of a firearm, U.S.S.G. § 2D1.1(b)(1), a three level enhancement for Movant's role in the offense, id. § 3B1.1, and a three level reduction for Movant's acceptance of responsibility, id. §3E1.1, resulting in a total offense level of 38. P.S.R. ¶¶ 60-66.
At sentencing, Movant's counsel argued against both of the enhancements recommended in the presentence report. Ex. D at 5. The trial court overruled Movant's objection as to the enhancement for possession of a firearm, but sustained Movant's objection on the role enhancement, resulting in an offense level of 35. Id. at 12. The court then sentenced Movant to the lower recommended term of 168 months in prison. Id. at 16. Movant appealed the sentence, arguing, as he did at sentencing, that the firearm enhancement was inapplicable because the possession of the firearm was not related to the conspiracy. The Court of Appeals for the Ninth Circuit affirmed the district court's sentence, concluding that "[t]he enhancement was appropriate because the record reflects that Jauregui possessed the firearm during the commission of the drug conspiracy." Ex. E (citing United States v. Lopez-Sandoval, 146 F.3d 712, 715 (9th Cir, 1998).
On April 4, 2011, Movant filed the instant motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255.
II. LEGAL STANDARD FOR § 2255 MOTION
A motion to vacate, set aside, or correct a sentence of a person in federal custody pursuant to 28 U.S.C. § 2555 entitles a prisoner to relief if "the court finds . . . [t]here has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." Under § 2255, "a district court must grant a hearing to determine the validity of a petition brought under that section, '[u]nless the motions and the files and the records of the case conclusively show that the prisoner is entitled to no relief.'" United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (quoting 28 U.S.C. § 2255). The court may deny a hearing if the movant's allegations, viewed against the record, fail to state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal. See United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir. 1996); United States v. Burrows, 872 F.2d 915, 917 (9th Cir. 1989). Mere conclusory statements or statements that are inherently incredible in a § 2255 motion are insufficient to require a hearing. See United States v. Howard, 381 F.3d 873, 877, 879 (9th Cir. 2004); United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980). While a movant is not required to allege facts in detail, he must make ...