Opinion
No. 05 Civ. 8163 (LAK), (03 Crim. 10069-06 (LAK)).
September 30, 2005
ORDER
Movant was convicted on his plea of guilty to one count of participation in a conspiracy to distribute and possess with intent to distribute one kilogram and more of heroin in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846. He was sentenced to 121 months' imprisonment on September 28, 2004. He now moves for relief pursuant to 28 U.S.C. § 2255.
As part of his plea agreement, movant waived his right to collaterally attack any sentence within or below the stipulated guidelines range of 121 to 151 months. At his allocution before Magistrate Judge Ellis, movant stated that he understood that he was waiving that right. A knowing and voluntary waiver of the right to appeal or collaterally attack a sentence is enforceable. See, e.g., United States v. Monzon, 359 F.3d 110, 117 (2d Cir. 2004).
Movant's claim of ineffective assistance of counsel does not defeat the waiver. If the record on appeal or collateral attack shows that the ineffective assistance claim lacks merit, the waiver should be enforced. See id.; see also, e.g., Harris v. United States, 380 F.Supp. 2d 278, 282 (S.D.N.Y. 2005); Sanders v. United States, 130 F.Supp.2d 447, 449 (S.D.N.Y. 2001).
Movant's claim of ineffective assistance of counsel is without merit. To prove ineffective assistance, he must show both that his counsel's performance was deficient and that the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 686 (1984). Movant argues that he was prejudiced when his counsel led him to plead guilty under an agreement that stated he was responsible for 3-10 kilograms of heroin, but the indictment charged him with conspiracy to distribute and possess with intent to distribute "one kilogram and more." There is no inconsistency between those ranges. Moreover, as noted by counsel and the Court at the sentencing hearing, movant's guideline range with 1-3 kilograms was 120-121 months, while his guideline range for 3-10 kilograms was 121 to 151 months. Movant's sentence of 121 months was therefore within both ranges. The Court would have imposed the same sentence in any event. Accordingly, movant has demonstrated neither deficient performance of counsel nor prejudice, and his waiver of his right to collaterally attack his sentence under § 2255 is enforceable.
The motion is denied. A certificate of appealability is denied, and the Court certifies that any appeal herefrom would not be taken in good faith within the meaning of 28 U.S.C. § 1915(a)(3).
SO ORDERED.