The opinion of the court was delivered by: Shirley Wohl Kram, United States District Judge
Petitioner pro se Melbin Garcia pled guilty to one count of participating in a conspiracy to distribute and possess with intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. § 846. He was sentenced to a term of imprisonment of 135 months. Garcia now moves pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence on the ground that he was denied effective assistance of counsel. For the reasons set forth below, Garcia's motion is denied.
A. Garcia's Offense Conduct
On or about August 17, 1999, a federal grand jury sitting in the Southern District of New York returned a three-count indictment against Garcia and several others. Garcia was only charged in Count One, which accused him of Participating in a conspiracy to distribute and possession with intent to distribute in excess of five kilograms of cocaine in violation of 21 U.S.C. § 846.
The prosecution arose out of the transportation of 170 kilograms of cocaine by truck from New Orleans to the New York City area. Garcia was one of two drivers who drove the truck to the New York City area.
Garcia's guilty plea was entered pursuant to a written plea agreement. In the plea agreement, the parties stipulated that Garcia's base offense level was thirty-eight pursuant to U.S.S.G. § 2D1.1(c)(1). The parties also stipulated that two separate reductions in the offense level were warranted. First, a two-level reduction was warranted because Garcia satisfied the "safety-valve" provision set forth in U.S.S.G. § 5C1.2. Second, an additional three-level reduction under U.S.S.G. § 3E1.1 for acceptance of responsibility was agreed to by the parties. The parties further stipulated that Garcia could seek a two-level reduction on the basis that he was a minor participant pursuant to U.S.S.G. § 3B1.2(b). The Government, however, reserved the right to argue that Garcia was not entitled to such a reduction. The parties further agreed that Garcia could seek a downward departure pursuant to U.S.S.G. § 5K2.0 based upon the allegedly aberrant nature of his conduct. The Government again reserved the right to oppose such a motion. The parties thus agreed that the applicable Sentencing Guidelines offense level was either thirty-one or thirty-three, depending on whether the Court deemed Garcia a minor participant pursuant to U.S.S.G. § 3B1.2. Finally, the parties stipulated that Garcia had a criminal history category of I. Based upon these agreements, the parties agreed that Garcia's stipulated Sentencing Guidelines range was 108 to 168 months. Garcia stipulated that he would he would "neither appeal, nor otherwise litigate under Title 28, United States Code, Section 2255, any sentence within or below the Stipulated Guidelines Range of 108 to 168 months." Plea Agreement, dated October 10, 2000, at 5.
On October 13, 2000, Garcia plead guilty to Count One of the indictment, conspiring to sell more than five kilograms of cocaine in violation of 21 U.S.C. § 846. During the plea proceeding held before Magistrate Judge Kevin Nathaniel Fox, Garcia withdrew his prior plea of not guilty as to Count One and entered a plea of guilty as to that count. At that time, Magistrate Judge Fox informed Garcia of the nature of the charge to which Garcia was offering to plead guilty and of the possible penalties associated with this offense. Magistrate Judge Fox advised Garcia, among other things, that he had the right to continue to plead not guilty and that if he did so, he would have a right to trial by jury in which he was represented by counsel and where he had the opportunity to confront and cross-examine witnesses on his own behalf. Magistrate Judge Fox sought and received assurances from Garcia that he understood and appreciated the nature and content of the plea agreement and that he entered it knowingly and voluntarily. Magistrate Judge Fox confirmed that Garcia wished to plead guilty because he was, in fact, guilty of the charged offense, and that Garcia understood by doing so he was waiving his to appeal a sentence within or below the stipulated Guidelines range or file a petition for collateral relief pursuant to 28 U.S.C. § 2255.
C. Sentencing Proceedings
Garcia's sentencing hearing was held before this Court on July 18, 2001. At the hearing, Garcia acknowledged that he had reviewed the Presentence Report and spoken with his attorney about it. The Court also heard argument from the parties with respect to Garcia's motion for a downward departure based on the allegedly aberrant nature of his conduct pursuant to U.S.S.G. § 5K2.0, and Garcia's motion for a two-level reduction based upon his alleged minor role in the drug conspiracy pursuant to U.S.S.G. § 3B1.2. The Court then provided Garcia with an opportunity to speak on his own behalf. Following Garcia's statement, the Court recognized that it had the authority to depart on the basis of aberrant conduct and to reduce Garcia's offense level based upon his purported minor participation in the offense. The Court determined, however, that neither a downward departure nor a reduction for Garcia's role in the offense was warranted. The Court then ordered Garcia to serve a sentence of 135 months, followed by a five-year term of supervised release.
Garcia now moves pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence on the ground that he received ineffective assistance of counsel.