The opinion of the court was delivered by: Robert W. Sweet, United States District Judge
Petitioner pro se Osvaldo Ceferino Borbon-Vasquez, a/k/a Jose Borbon ("Borbon" or the "Petitioner") has moved pursuant to Title 28, U.S.C. § 2255, to vacate and set aside the conviction and sentence imposed upon him by this Court on May 25, 2002. The government has opposed the motion on the grounds that it is barred procedurally and by the statute of limitations. For the reasons set forth below, the motion is denied.
Prior Proceedings Borbon is a citizen of the Dominican Republic who first entered the United States in 1975. Between 1981 and 1994, Borbon was convicted of a number of crimes under New York State law, including burglary in the third degree, criminal possession of a weapon in the second degree, disorderly conduct, and attempted grand larceny in the fourth degree. On October 19, 1995, while serving a sentence for a subsequent offense, Borbon was released on parole and transferred to the custody of the Immigration and Naturalization Service ("INS") and on October 26, 1995, Borbon was deported to the Dominican Republic.
In November 1995, Borbon returned to the United States and resumed criminal activity. On May 12, 1997, he was convicted of attempted criminal sale of a controlled substance in the third degree and was sentenced to three to six years' imprisonment. On June 4, 1997, Borbon was interviewed by an agent of the INS and admitted that he had been deported in October 1995, had reentered the United States in November 1995 using his old "resident alien card," and had not obtained permission to return to the United States.
Indictment 99 Cr. 874 was filed on September 7, 1999, and in one count charged Borbon with illegally reentering the United States after having been deported following his conviction of an aggravated felony (the 1986 burglary conviction), in violation of Title 8, U.S.C. § 1326(a) and (b)(2).
On December 14, 1999, Borbon appeared before Magistrate Judge Frank Maas and pleaded guilty to the sole count of the Indictment, without a plea agreement. Prior to the proceeding, the government provided Borbon with a letter pursuant to the suggestion of the Second Circuit in United States v. Pimentel, 932 F.2d 1029, 1034 (2d Cir. 1991) setting forth the government's position regarding the application of the Sentencing Guidelines to Borbon's case, calculating Borbon's offense level to be 21, detailing Borbon's extensive criminal history, stating the government's belief that Borbon had 12 criminal history points and was therefore in criminal history category V and predicting that Borbon's sentencing range would be 70 to 87 months.
At the outset of the plea proceeding on December 14, Borbon's counsel noted that Borbon did not consider his 1986 burglary conviction to be an "aggravated felony" within the meaning of U.S.S.G. § 2L1.2, and that Borbon therefore intended to dispute the government's statement in the Pimentel letter that a 16-level enhancement was warranted under U.S.S.G. § 2L1.2(b)(1)(A). The Magistrate Judge then confirmed that Borbon understood that the parties had been discussing the nature of his prior conviction and what bearing, if any, it had on Borbon's decision to plead guilty and asked Borbon whether he understood that the issue of whether his prior conviction constituted an "aggravated felony" related only to sentencing, and Borbon affirmed that he did.
Borbon admitted that he had illegally returned to the United States without obtaining the permission of the Attorney General after having been deported on the basis of his 1986 burglary conviction.
Following Borbon's guilty plea, the United States Probation Office adopted the offense-level calculation set forth in the Pimentel letter. However, the Probation Office determined that Borbon was in criminal history category VI, not V, and that his resulting sentencing range was therefore 77 to 96 months under the Guidelines. The Probation Office recommended a sentence of 77 months.
Prior to sentencing, Borbon submitted two letters in which he raised the following three claims regarding his sentencing: (1) that his sentence should run concurrently with an undischarged state sentence, pursuant to U.S.S.G. § 5G1.3(c); (ii) that the Court should downwardly depart from the Guidelines based on purported inter-district disparities in the charging of illegal reentry offenses; and (iii) that even if the Court rejected his departure claim, he should be sentenced at the bottom of the applicable Guidelines range.*fn1 Borbon did not in his letters raise any issue with respect to the classification of his 1986 burglary conviction as an "aggravated felony."
On May 23, 2000, a sentencing opinion set forth the Court's findings and conclusions with respect to Borbon's sentence, adopting the Guidelines calculations set forth in the PSR and proposing the applicable sentencing range to be 77 to 96 months' imprisonment, and granting Borbon's requests for concurrent treatment and a sentence at the bottom of the range, subject to amendment at the sentencing hearing scheduled for May 25. United States v. Borbon-Vasquez, No. 99 Cr. 874, 200 U.S. Dist. LEXIS 7109 (S.D.N.Y. May 25, 2000).
At the sentencing hearing on May 25, Borbon made no argument with respect to the classification of his prior conviction as an "aggravated felon" and did not object to the 16-level enhancement and asked the Court to reduce by eight months the 77-month sentence, which the Court had indicated would be imposed, to account for the time Borbon had spent in federal custody on the illegal reentry charge, that is, eight months credited only to his state sentence, and which, as defense counsel argued, would have run concurrently with the federal sentence had Borbon been sentenced earlier.
Notwithstanding the government's objection, the Court deducted eight months from the bottom of the Guidelines range and imposed a sentence of 69 months' imprisonment to run concurrently with an undischarged state sentence, to be followed by three years' supervised release, and a mandatory special assessment of $100.
Borbon filed a timely notice of appeal on June 5, 2000. His sole claim on appeal was that the district court erred in applying the 16-level enhancement mandated by Sentencing Guidelines Section 2L1.2(b)(2) for aggravated felons convicted of illegal reentry under 8 U.S.C. § 1326. Specifically, he argued that his 1986 New ...