Opinion
Case No. 8:04-CV-2789-T-27MSS, Cr. Case No. 8:03-CR-141-T-27MSS.
August 2, 2006
ORDER
BEFORE THE COURT is Petitioner's Motion to Vacate, Set Aside or Correct Sentence filed pursuant to 28 U.S.C. § 2255 (Dkt. 1), and the Government's Response in Opposition (Dkt. 5). Upon consideration, Petitioner's Motion (Dkt. 1) is DENIED.
Petitioner was granted leave to file a Reply to the Government's Response but has not done so. (Dkt. 12).
In his § 2255 motion, Petitioner asserts three claims:
(1) "Whether Government breach promise that induced guilty plea violates due process";
(2) "Whether court exceeded 24 month's guideline range"; and
(3) "Whether the court errored in not being specific in amount of restitution to be paid by Petitioner."
Pursuant to a written plea agreement, Petitioner pleaded guilty to one count of conspiracy to defraud the government (Count One; 18 U.S.C. § 286) and one count of filing fraudulent claims (Count Fifteen; 18 U.S.C. § 287). (Dkts. CR. 33, 62). On January 5, 2004, he was sentenced to concurrent terms of imprisonment of 36 months, to be followed by concurrent terms of supervised release. (Dkt. CR. 48). He did not appeal. Petitioner's post-sentencing construed Motion for State Petitioner knowingly and voluntarily waived his right to collaterally attack his sentence. He is therefore bound by that waiver, since his claims are not within the limited exceptions to the waiver. Notwithstanding, Petitioner's three claims will be addressed.
Notwithstanding that the Magistrate Judge did not expressly reference a waiver of the right to file a collateral attack pursuant to § 2255, here "it is otherwise clear from the record that the defendant understood the significance of the waiver." United States v. Buchanan, 131 F. 3d at 1008.
Petitioner's claim that the Government breached his plea agreement by not recommending that his federal sentence run concurrent with his subsequent state sentence is refuted by the record. His plea agreement contains no such "promise." During his plea colloquy, there was no discussion about any such promise. Moreover, Petitioner confirmed under oath during his plea colloquy that there were no promises or agreements other than what were contained in his plea agreement. (Dkt. CR. 62, pp. 6-7, 14). These sworn statements are presumed to be true United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994). They present a "formidable barrier" in this collateral proceeding. Blackledge v. Allison, 431 U.S. 63, 74 (1977). Given the record, Petitioner cannot disavow his sworn confirmation that there were no promises other than what was in his plea agreement. Petitioner's first claim is therefore without merit.
Petitioner's second claim is that his 36 month sentence exceeded the applicable guideline range. This claim is likewise without merit and expressly refuted by the record. He was sentenced to 36 months imprisonment, a sentence within the applicable guideline range of 33 to 41 months, based on an Offense Level 16, Criminal History Category IV. No enhancements were applied. His Criminal History category was correctly scored.
Petitioner may, as the Government suggests, misunderstand the recitation in the Judgment that "the sentence is within the guideline rage, that range does not exceed 24 months, and the court finds no reason to depart from the sentence called for by the application of the guidelines." (Dkt. CR. 48, p. 7;Statement of Reasons). The reference to 24 months is a confirmation that the range within the applicable guideline range (33-41) does not exceed 24 months, not that Petitioner's maximum sentence under the applicable sentencing range was 24 months.
Petitioner's third claim is that the district court should have specified the amount of restitution Petitioner's co-defendant, John R. Cuyler, is responsible for. Petitioner contends that he should only be responsible for half of the total restitution. Petitioner is mistaken. Pursuant to 18 U.S.C. § 3664(h), restitution may be ordered to be paid in full or apportioned among defendants. Here, Petitioner was ordered to pay full restitution, with credit for any payments made by his co-defendant, Cuyler. The restitution order is therefore joint and several. (Dkt. CR. 48, p. 6). To the extent Petitioner contends that the Court erred in not apportioning restitution, his contention is without merit.5
Accordingly, Petitioner's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Dkt. 1) is DENIED. The Clerk is directed to enter judgment against Petitioner and close this case.
DONE AND ORDERED.