WILLIAM Q. HAYES, District Judge.
The matters before the court are: 1) Defendant's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody (ECF No. 32) and 2) Defendant's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody (ECF No. 36).
Defendant moves the court to set aside his sentence on the grounds of ineffective assistance of counsel. Defendant contends that his counsel failed to review the Presentence Report with him prior to sentencing and failed to correct false information in the Presentence Report stating that he used a firearm in a prior attempted robbery conviction. Defendant asserts that he was charged with use of a baseball bat and did not use a firearm in the prior conviction. Defendant asserts in the second motion that he cannot be housed in a minimum security facility or a Community Correctional Center because of his deportation status.
The Government agrees that the Presentence Report incorrectly stated that the Defendant used a firearm in the 1993 attempted robbery conviction. The Government contends that the Defendant cannot establish that the sentence would have been different in this case because Defendant used a deadly weapon to commit the attempted robbery. The Government contends that defense counsel informed the Court at the sentencing that he had reviewed the Presentence Report with the Defendant and the Defendant did not state differently when given an opportunity to address the Court.
On January 24, 2102, Defendant waived indictment and agreed to allow the United States to file an Information charging him with one count of attempted reentry after deportation, in violation of 8 U.S.C. § 1326(a) and (b).
On February 23, 2012, Defendant entered a plea of guilty pursuant to a Plea Agreement pursuant to Rule 11 of the Federal Rules of Criminal Procedure.
On April 30, 2012, the Presentence Report was prepared and submitted to the Court. The Presentence Report found that the total offense level was 19 and the Criminal History Category was VI resulting in a advisory guideline range was 63 to 78 months and recommended a sentence of 63 months. The Presentence Report concluded that the Defendant had seventeen criminal history points. The report detailed the Defendant's criminal history including a conviction in 1993 for Attempted Robbery resulting from an armed attempted car jacking.
On May 29, 2012, the Government filed a Sentencing Summary Chart recommending a sentence of 63 months.
On July 24, 2012, Counsel for the Defendant filed a Motion for Downward Departure and a Sentencing Memorandum requesting a downward departure.
On July 31, 2012, the Court held a sentencing hearing and sentenced the Defendant to a term of 63 months.
28 U.S.C. §2255 provides that "A prisoner under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to ...