Opinion
Nos. 05 Civ. 3673 (LMM), (96 Cr. 34 (LMM)).
July 25, 2005
MEMORANDUM AND ORDER
1.
On December 13, 1996, the above defendant pleaded guilty to Count One (charging that defendant conspired, between about December of 1990 through about March of 1996, to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846) of a multi-count indictment, pursuant to a written plea agreement which included a guidelines stipulation in which it was agreed that the appropriate offense level was 36 and criminal history category I, for a sentence range of 188-235 months; factually, the plea agreement stated that the defendant participated in the distribution of at least 150 kilograms of cocaine, and that, at the time of his arrest, he possessed a dangerous firearm. (Plea Agreement [Ex. A to Gov't Letter Mem., June 24, 2005] at 1-4.)
On the assumption that defendant would execute the documents necessary to the obtaining of an administrative order of deportation (to which a one-level downward adjustment of the offense level was attributed); if he did not do so, it was agreed, the offense level would be 37, and the sentence range 210-262 months.
The plea agreement also provided that neither the government nor defendant would seek an upward or downward departure, or an adjustment not set forth in the plea agreement (id. at 4), and that defendant would not appeal or challenge under 28 U.S.C. § 2255 any sentence within or below the stipulated guidelines range. (Id. at 5.)
The Presentence Investigation Report ("PSR") prepared by the Department of Probation increased defendant's offense level by three levels, to 39, on the ground that defendant was a manager or supervisor (see U.S.S.G. § 3B1.1(b)). (Gov't Letter Mem., June 24, 2005, at 4 (citing PSR).) Prior to sentencing, defendant, pro se, filed a memorandum entitled "Mitigating factors for consideration prior to sentencing," opposing that three-level role adjustment, asking for a two-level, rather than a one-level, decrease in relation to executing documents providing for administrative deportation, disputing a two-level increase relating to the possession of a firearm, and describing family ties and responsibilities. Both the government and defendant agreed, however, that, notwithstanding the PSR and defendants' pro se memorandum, the sentence was to proceed according to the plea agreement. (Transcript, Jan. 28, 1999 [Ex. C to Gov't Letter Mem., June 24, 2005] at 2-6.)
The Court sentenced defendant, on January 28, 1999, principally to 188 months of imprisonment (the lowest available sentence under the plea agreement). Defendant did not appeal.
2.
Petitioner, pursuant to 28 U.S.C. § 2255, now challenges his sentence.
He argues against the three-level increase recommended in the PSR on the ground that he was a manager or supervisor and places some emphasis on the one-level reduction provided for in the plea agreement for executing the papers necessary to an administrative order of deportation. The three-level increase, however, was not applied to petitioner, and the one-level decrease was.
Petitioner argues that the two-level increase for possession of a firearm cannot be imposed under United States v. Booker, 125 S. Ct. 738 (2005), and its predecessors. Booker, however, "is not retroactive, i.e., it does not apply to cases on collateral review where the defendant's conviction [as that here] was final as of January 12, 2005, the day that Booker issued." Guzman v. United States, 404 F.3d 139, 144 (2d Cir. 2005).
Petitioner also argues for a downward departure for the mitigating circumstance that, since he is to be deported, he "will be required to serve out his entire sentence without the benefit of camp placement, halfway house placement or any other community-based programs available to U.S. citizens." (Petition, at 4-5.) In the plea agreement, however, as noted above, petitioner agreed not to seek any downward departure not described in the agreement.
Beyond the comments set forth above, however, none of petitioner's arguments as to his sentence, whether or not mentioned above, are cognizable by the Court because, as noted above, petitioner, in the plea agreement, gave up his right to seek relief under section 2255. Such an agreement is enforceable,Garcia-Santos v. United States, 273 F.3d 506, 509 (2d Cir. 2001), and no reason not to enforce the plea agreement here appears.
A certificate of appealability pursuant to 28 U.S.C. § 2253(c) (1) (B) is denied.
SO ORDERED.