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April 13, 1992


The opinion of the court was delivered by: I. LEO GLASSER


 GLASSER, United States District Judge:

 On June 4, 1986, the petitioner, Fernando Arbelaez-Osorio, pleaded guilty to a charge that he, in violation of 21 U.S.C. § 841(a)(1), knowingly and intentionally possessed an unspecified amount of cocaine with intent to distribute. On July 29, 1986, Judge Henry Bramwell sentenced Arbelaez-Osorio to a fifteen-year term of imprisonment, a twenty-year term of special parole, a fine of $ 125,000.00, and a special assessment of $ 50.00. On August 25, 1988, this court granted Arbelaez-Osorio's motion under Federal Rule of Criminal Procedure 35(b) for a reduction of his sentence; at that time, this court reduced his term of imprisonment to twelve years. Arbelaez-Osorio now petitions this court, pursuant to 28 U.S.C. § 2255, for an order to vacate, to correct, or to set aside his sentence. However, the petition and the record of petitioner's guilty plea indicate conclusively that the petitioner is not entitled to relief; accordingly, an evidentiary hearing is not warranted, and the petition is denied in its entirety.

 1. Ineffective Assistance of Counsel

 Petitioner first predicates his motion on a claim of ineffective assistance of counsel. He contends that his attorney erroneously advised him that the court, in passing sentence on petitioner, would not consider any evidence of petitioner's alleged possession of a cache of 138 kilograms of cocaine; petitioner states that his lawyer advised him that the court would only consider that petitioner had been arrested with three kilograms of cocaine in his possession. It was on the basis of this representation, the petitioner avers, that he decided to enter a plea of guilty to the second count of a three-count indictment (possession with intent to distribute). Indeed, at the time that petitioner pleaded guilty to this second count, he had already withdrawn a guilty plea to the third count of the indictment; it was that third count that concerned the cache of over 130 kilograms of cocaine. The petitioner refers the court to that withdrawn guilty plea as evidence of his position that he would not have pleaded guilty to the second count of the indictment if his attorney had not told him that the sentencing court would not consider the allegations on which the third count was based.

 The sentencing court did indeed consider the evidence that underlay the third count when it sentenced petitioner on the second count. Judge Bramwell specifically credited the proffer by the government as to the petitioner's constructive possession of those 138 kilograms of cocaine, and -- in part on that consideration -- Judge Bramwell sentenced the petitioner to the maximum term of imprisonment on the second count of the indictment. Transcript of Sentencing, 7/29/86, at 24-26. It is the allegedly erroneous advice by his lawyer as to Judge Bramwell's consideration of that factor in sentencing that the petitioner now argues to have constituted ineffective assistance of counsel.

 A challenge based on a claim of ineffective assistance of counsel is a constitutional challenge. Strickland v. Washington, 466 U.S. 668, 684-87, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). By his plea of guilty, a defendant forfeits his rights to "raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." Tollett v. Henderson, 411 U.S. 258, 267, 36 L. Ed. 2d 235, 93 S. Ct. 1602 (1973). The petitioner may, however, attack the voluntary and intelligent character of his guilty plea by demonstrating that his attorney's "advice was not 'within the range of competence demanded of attorneys in criminal cases.'" Id. at 266-67 (quoting McMann v. Richardson, 397 U.S. 759, 771, 25 L. Ed. 2d 763, 90 S. Ct. 1441 (1970)). In Hill v. Lockhart, 474 U.S. 52, 58, 88 L. Ed. 2d 203, 106 S. Ct. 366 (1985), the Supreme Court held the two-part test of Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), to apply to challenges of guilty pleas based on claims of ineffective assistance of counsel. To satisfy Strickland, a defendant must demonstrate "that counsel's representation fell below an objective standard of reasonableness" and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 687-88, 694.

 The petitioner refers this court to United States v. Rodriguez-Luna, 937 F.2d 1208, 1215 n.8 (7th Cir. 1991), for the proposition that the error of counsel alleged here -- that is, misadvice about conduct that may be considered at sentencing -- can suffice to establish a claim of ineffective assistance of counsel. However, this court notes initially that the court in Rodriguez-Luna appeared to be concerned primarily with such erroneous advice in the context of offenses to which the sentencing guidelines apply. In those cases, consideration of alleged offenses of which a defendant has not been convicted may increase a base offense level; hence, a defendant in that circumstance could be confronted with a sentencing guideline range with a higher maximum than his lawyer may have led him to expect. However, in the context of offenses to which the guidelines do not apply -- such as that of this petitioner -- the uncharged crimes do not increase the statutorily prescribed maximum sentence; as such, the defendant may receive a sentence more harsh than that predicted by his attorney, but the maximum possible sentence -- fixed, as it is, by statute -- should conform to his understanding and to his expectations. Thus, the Rodriguez-Luna analysis about this genre of error by counsel applies with greater force to the case of an offense in which the sentencing is conducted under the strictures of the guidelines.

 Moreover, the law of the Second Circuit has been clear both before and after the imposition of the guidelines that "a defendant [is] not entitled to withdraw a guilty plea simply because his attorney erroneously predicted his sentence." United States v. Sweeney, 878 F.2d 68, 70 (2d Cir. 1989). This principle is particularly applicable in those cases when the court informs a defendant of the maximum possible sentence that he may receive before it accepts his guilty plea. Wojtowicz v. United States, 550 F.2d 786, 792 (2d Cir.), cert. denied, 431 U.S. 972, 53 L. Ed. 2d 1071, 97 S. Ct. 2938 (1977). To the extent that misguidance about sentencing factors is only an element of an attorney's prediction as to a defendant's sentence, such misguidance is clearly the lesser error and is, accordingly, subsumed by the Sweeney and the Wojtowicz analyses.

 In this case, Judge Bramwell asked the defendant whether anyone had told him to expect a particular sentence, and the Judge informed the defendant of the maximum sanctions applicable to the offense for which he was about to enter a plea of guilty:

 THE COURT: Ask the defendant if he knows of any other promises by anybody [other than that of the plea agreement].


 THE COURT: Ask the defendant if he has been threatened or coerced in any way ...

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