Opinion
07 Civ. 2175 (TPG).
September 11, 2007
OPINION
This is a motion by a federal prisoner to vacate or correct his sentence. The motion is made under 28 U.S.C. § 2255. Pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings, the court has examined the motion and has determined that it must be dismissed.
On January 7, 2004 petitioner entered a guilty plea to one count of conspiracy to distribute narcotics and one substantive count of narcotics distribution. On May 28, 2004 petitioner was sentenced to 87 months in prison, which was the minimum sentence within the Guideline range. The Court of Appeals remanded the case pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). The purpose of the remand was to determine whether petitioner should be re-sentenced under the new controlling decisions. On March 9, 2006 the district court ruled that there was no reason to re-sentence petitioner.
This motion under § 2255 was filed on February 20, 2007. Petitioner's main argument is that he should have been sentenced on the basis of 62 grams of crack cocaine whereas the Guideline calculation was made on the basis of 62 grams of crack cocaine plus other quantities of narcotics. Petitioner contends that his counsel was ineffective in various ways in allowing this to happen, including the failure to demand a Fatico hearing. Petitioner also claims that his attorney improperly failed to bargain with the prosecutor for minor role treatment. Petitioner contends that his counsel then assured him that he would argue for minor role treatment at sentencing but did not do so.
None of these contentions has merit. As the record shows, petitioner first admitted that he had sold 62 grams of crack cocaine in connection with his plea to the substantive count. However, in connection with the conspiracy count, he admitted other transactions beyond the one involving the 62 grams, although he did not specify the quantity involved in these other incidents.
At the sentence there was an extensive discussion of the issue of quantity. Petitioner had had proffer sessions with the Government, which resulted in the "safety valve" being applied to petitioner, which relieved him of having to serve a minimum of 10 years in prison. In the proffers petitioner admitted to drug transactions involving 125 grams of crack cocaine, 6 kilos of powered cocaine, and 140 grams of heroin, and this was described at the sentence hearing. It is these admissions that were used, without objection, as a basis for the Guideline range, with the minimum sentence of 87 months.
As to the claim that petitioner played a minor role, the court will assume that defense counsel did not raise the matter in plea negotiations. And it is true that the issue of minor role under the Guidelines was not raised in connection with the sentence. But there was a discussion of the relationship of petitioner and his two co-defendants at the sentence. Petitioner was the wholesaler, one co-defendant was a retailer, and the other co-defendant provided a storage place for the retailer. This negates any idea that petitioner was playing a minor role, within the meaning of the Guideline.
The motion to attack the sentence is without merit, and is denied and dismissed.
The moving party has not made a substantial showing of the denial of a constitutional right. Therefore a certificate of appealability will not issue. 28 U.S.C. § 2253. In respect to the in forma pauperis statute, the court certifies that an appeal would not be taken in good faith. 28 U.S.C. § 1915(a)(3).
SO ORDERED.