WILLIAM Q. HAYES, District Judge.
The matter before the Court is the motion to vacate, set aside or correct sentence by a person in federal custody pursuant to 28 U.S.C. Section 2255 filed by the Defendant Ruben Nunez Moreno. (ECF No. 42).
On June 2, 2011, Defendant was detained at the Port of Entry at San Ysidro, California after a narcotics dog alerted agents to the passenger rear quarter panel of the vehicle he was driving. Subsequent investigation revealed a non-factory compartment in the quarter panel area concealed packaging containing approximately 7.40 kilograms (16.28 pounds) of methamphetamine, a Schedule II Controlled Substance, and approximately 8.58 kilograms (18.89 pounds) of marijuana, a Schedule I Controlled Substance. Defendant was arrested and invoked his constitutional right to remain silent.
On July 12, 2011, Defendant waived indictment and agreed to allow the United States to file an Information charging him with importation of approximately 7.4 kilograms of methamphetamine in Count One and 8.58 kilograms of marijuana in Count Two in violation of 21 U.S.C. §§ 952 and 960. (ECF No. 16). Count One carried a minimum mandatory sentence of ten years and a maximum sentence of life imprisonment. Count Two carried a maximum five years imprisonment.
On August 4, 2011, Defendant appeared before the Magistrate Judge and entered pleas of guilty to both counts pursuant to a Plea Agreement. (ECF No. 23). The parties agreed to recommend that Defendant receive a four-level downward departure for fast track under U.S.S.G. § 5K3.1, a three-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1, and agreed to jointly recommend a total offense level under the guidelines of 33. (ECF No. 23 at 8). The parties also agreed in Section X, paragraph A, that Defendant could only seek a downward adjustment for role under U.S.S.G. § 3B1.2(b), with corresponding adjustments under U.S.S.G. § 2D1.1(5), and a downward departure for criminal history under U.S.S.G. § 4A1.3. Id. at 9. The parties further agreed to not seek any adjustments, variances, reductions, or departures, including reductions under 18 U.S.C. § 3553, that were not set forth in Section X, paragraph A, and to recommend the statutory mandatory minimum sentence or the low end of the advisory guideline as calculated by the Government in the Plea Agreement. Id. at 9-10.
In the Plea Agreement, Defendant stated his guilty plea was knowing and voluntary. Id. at 6. DEFENDANT'S REPRESENTATIONS in the Plea Agreement stated:
A. Defendant has had a full opportunity to discuss all the facts and circumstances of this case with defense counsel, and has a clear understanding of the charges and consequences of this plea. Defendant further understands that the conviction in this case may subject defendant to various collateral consequences, including but not limited to deportation, removal or other adverse immigration consequences; revocation of probation, parole, or supervised release in another case; none of which will serve as grounds to withdraw defendant's guilty plea;
B. No one has made any promises or offered any rewards in return for this guilty plea, other than those contained in this agreement or otherwise disclosed to the court;
C. No one has threatened defendant or defendant's family to induce this guilty plea; and
D. Defendant is pleading guilty because in truth and in fact defendant is guilty and for no other reason.
Under the terms of the Plea Agreement the Defendant waived his right to appeal or to collaterally attack his conviction and sentence. Id. at 11. Defendant initialed each page of the Plea Agreement and signed the Plea Agreement on the last page along with his counsel and counsel for the Government. Id. at 13. Directly above Defendant's signature, the Plea Agreement stated: "Defendant has consulted with counsel and is satisfied with counsel's representation." Id.
During the plea colloquy the Defendant, represented by counsel, acknowledged he had been sworn under penalty of perjury and that he could be prosecuted for perjury if he failed to provide truthful answers in the proceedings. (ECF No. 47 at 3-4). The Magistrate Judge stated:
THE COURT: Are either of you taking any substance or medication that affects your ability to think clearly?
THE COURT: Mr. Nunez?
THE DEFENDANT: No.
THE COURT: Are you having any problem understanding what's going on so far?
THE COURT: Mr. ...