The opinion of the court was delivered by: David W. Sweet, United States District Judge
Pro se petitioner Hector Jimenez ("Jimenez" or the "Petitioner") seeks to set aside his conviction pursuant to 28 U.S.C. § 2255 based upon his plea of guilty to two indictments charging him with violating 21 U.S.C. § 846. The government has opposed the petition which is denied for the reasons set forth below.
Jimenez entered a plea of guilty on September 22, 2000 to the two indictments charging him with violating 21 U.S.C. § 846 after signing a plea agreement on September 21, 2000 which provided an agreed-upon sentencing guideline range, an agreement that Jimenez possessed a weapon in connection with the offenses charged in one of the indictments, and a waiver of his right to appeal and to attack collaterally any sentence imposed within the agreed-upon range.
The Magistrate Judge carefully conducted an allocution which established that Jimenez understood the conditions of his plea agreement and its effect and that the plea was entered into knowingly. Upon the Magistrate Judge's recommendation, the plea was accepted by the Court on March 21, 2001.
Jimenez was sentenced on December 13, 2001. After argument with respect to the facts relating to the gun enhancement, the Court departed downward from the stipulated guideline range and imposed the mandatory minimum sentence of 120 months.
On October 31, 2002, Jimenez filed his § 2255 petition which collaterally attacked his sentence for wrongly enhancing his sentence for gun possession and for ineffective assistance by counsel for failing to file an appeal on the gun enhancement and for permitting Jimenez to file an "involuntary and unintelligent plea."
The government filed its opposition, Jimenez replied, and the petition was marked fully submitted on January 24, 2003.
Under his plea agreement, Jimenez stipulated that the applicable Guidelines range would be 135 to 168 months, and explicitly waived his right to appeal or to file a § 2255 motion within or below the Guidelines range of 135 to 168 months. The Second Circuit has repeatedly held that a defendant's waiver of such rights within an agreed-upon Guidelines range is generally enforceable. United States v. Difeaux, 163 F.3d 725, 728 (2d Cir. 1998); United States v. Djelevic, 161 F.3d 104, 106-07 (2d Cir. 1998) (per curiam); United States v. Maher, 108 F.3d 1513, 1531 2d 3 Cir. 1997); United States v. Yemitan, 70 F.3d 746, 747 (2d Cir. 1995); United States v. Pipitone, 67 F.3d 34, 39 (2d Cir. 1995) (defendant may not evade waiver of appeal by filing § 2255 motion instead of direct appeal). When a defendant has knowingly and voluntarily waived his right to challenge a sentence within a stipulated range, he may not subsequently challenge a sentence imposed within that range. E.g., Garcia-Santos v. United States, 273 F.3d 506, 508 (2d Cir. 2001); United States v. Gomez-Perez, 215 F.3d 315, 318 (2d Cir. 2000) (collecting cases); Maher, 108 F.3d at 1531.
A waiver of the right to appeal will be enforced so long as the entire record demonstrates that the waiver was knowing and voluntary. Yemitan, 70 F.3d at 747:
In no circumstance . . . may a defendant, who has secured
the benefits of a plea agreement and knowingly and
voluntarily waived the right to appeal a certain
sentence, then appeal the merits of a sentence conforming
to the agreement. Such a remedy would render the plea
bargaining process and the resulting agreement
Accord United States v. Salcido-Contreras, 990 F.2d 51
, 52 (2d Cir. 1993) (per curiam), cert. denied, 509 U.S. 931 (1993). The knowing and voluntary nature of the waiver can be established by a written waiver provision in an agreement to which the Court draws a defendant's attention during the plea hearing. United States v. Blackwell, 199 F.3d 623
, 626 (2d Cir. 1999) (per curiam); Berdecia v. Lacy, No. 99 Civ. 11309, 2000 WL 1072306, at *6 (S.D.N.Y. Aug. 2, 2000) (waiver knowing and voluntarily where agreement unambiguous and defendant acknowledged understanding on record); Miller v. United States, No. 00 Civ. 2469, 2000 WL 1050584, at *3 (S.D.N.Y. July 28, 2000) (same).
Here, Jimenez made a knowing and voluntary waiver of his right to attack a sentence of 135 to 168 months. The plea agreement was unambiguous, specifically providing that "the defendant will neither appeal, nor otherwise litigate under Title 28, United States Code, Section 2255, any sentence within or below the Stipulated Sentencing Range of 135 to 168 months." Moreover, the Court carefully inquired of Jimenez at the plea proceeding regarding his understanding of these very terms of the agreement:
THE COURT: Do you also understand that as part of this
plea agreement, in each case if the prison term that you
receive is no greater than the amount contained in the
Guideline range that we've talked about, that is, no
longer than 168 months, you are giving up your right to
challenge that sentence either on appeal to the Court of