The opinion of the court was delivered by: RICHARD CASEY, District Judge
MEMORANDUM OPINION & ORDER
Before the Court is Ramon Jimenez's ("Defendant's") pro se
28 U.S.C. § 2255 motion. Defendant challenges his sentence for possessing
with intent to distribute cocaine base, in violation of
28 U.S.C. § 841(b)(1)(B). He asserts the following: (1) the statute under
which he was convicted is unconstitutional in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000); and (2) he received ineffective assistance
of counsel. For the reasons explained below, the motion is DENIED.
On August 7, 1998, Defendant sold forty-one grams of crack cocaine to a
DBA confidential informant for $1,740 (including $200 for an outstanding
drug debt). On January 19, 1999, a grand jury charged Defendant in a
two-count indictment with conspiracy to violate the narcotics laws of the
United States under 21 U.S.C. § 846, 841(a)(1) and 841(b)(1)(B) (Count
One) and possession with intent to distribute cocaine base under
21 U.S.C. § 841(b)(1)(B) (Count Two).
With the benefit of a plea agreement, Defendant pled guilty to Count
Two on June 17, 1999. The agreement noted that Defendant might be
eligible for relief from the statutory minimum provision, and that if he
satisfied the conditions for such relief under 18 U.S.C. § 3553(f), an
additional two-point reduction in the offense level would be appropriate
under U.S.S.G. § 2D1.1(b)(6) (the "safety-valve"). In the event that Defendant failed to
qualify for the safety-valve, the parties stipulated that Defendant's
"stipulated Sentencing Guidelines range" would be 70 to 87 months'
imprisonment. Defendant also agreed that he would neither directly appeal
nor litigate under § 2555 such a sentence.
The Probation Department in the Pre-Sentence Report ("PSR") determined
that Defendant was. previously convicted of attempted criminal sale of a
controlled substance, for which he had been sentenced to one to three
years' imprisonment. The PSR indicated that this conviction should
disqualify Defendant from receiving a two-point safety-valve reduction.
The PSR thus concluded that Defendant's Criminal History Category of n
and total offense level of 27 yielded a Guidelines Range of 78 to 97
On June 20, 2000, the Court sentenced Defendant to 78 months'
imprisonment, four years of supervised release and imposed a mandatory
$100 special assessment. At sentencing, the Court also granted the
Government's motion to dismiss Count One. Defendant did not file a direct
appeal. He is presently incarcerated at Loretto Federal Correctional
Institute in Loretto, Pennsylvania.
As a preliminary matter, Defendant validly waived his right to
challenge his sentence of 78 months' imprisonment. Under his plea
agreement, Defendant explicitly waived his right to challenge pursuant to
§ 2255 a sentence within the stipulated range of 70 to 87 months. The
written waiver in the plea agreement and the detailed plea allocution
demonstrate that the waiver of the right to bring a § 2255 motion was
knowing and voluntary. See United States v. Maher, 108 F.3d 1513, 1531
(2d Cir. 1997); United States v. Salcido-Contreras, 990 F.2d 51, 52 (2d
Cir. 1993). Accordingly, because Defendant knowingly and voluntarily
waived the right to make a § 2255 motion for the sentence he received, he is precluded from the relief he
now seeks. See, e.g., Liberato v. United States, No. 99 Cr. 157, 01 Civ.
3056, 2001 WL 930238, at *5 (S.D.N.Y. Aug. 16, 2001); Jimenez v. United
States, No. 99 Cr. 984,00 Civ. 7114, 2001 WL 699060, at *3 (S.D.N.Y. June
Moreover, Defendant never asserted his § 2255 claims on direct appeal.
The failure to bring a claim on direct appeal amounts to a procedural
default. See Campino v. United States, 968 F.2d 187, 190 (2d Cir. 1992).
When a defendant has procedurally defaulted a claim, the claim may be
raised in a § 2255 motion only if the defendant can first demonstrate
either: (1) cause and actual prejudice for failure to raise the claim on
direct appeal, see Abbamonte v. United States, 160 F.3d 922, 924 (2d
Cir. 1998); or (2) actual innocence. Rosario v. United States,
164 F.3d 729, 732 (2d Cir. 1998). Defendant does not assert that he is in
fact innocent. See Defendant's Reply at 2 ("The only real issue here is
not necessarily of guilt or innocence, as I still stand by my pleading to
the basic charged offense."). Defendant must therefore show both cause
and actual prejudice.
However, Defendant has offered no reason for his failure to raise the
Apprendi issues on appeal.*fn1 While "cause" may exist when a claim "is
so novel that its legal basis is not reasonably available to counsel,"
Reed v. Ross, 468 U.S. 1, 16 (1984), Defendant's Apprendi claim does not
meet this standard. See Coleman v. United States, 329 F.3d 77, 90 (2d
Cir. 2003). Defendant has also failed to show actual prejudice because
Apprendi simply does not apply to this case. Apprendi holds that facts
increasing a statutory maximum sentence must be found by a jury by proof
beyond a reasonable doubt. Meanwhile, facts that only increase the
Guidelines sentence may be found by the sentencing judge by a
preponderance of the evidence. See United States v. McLeod, 251 F.3d 78, 82 (2d Cir. 2001) ("Apprendi is inapplicable to Guidelines
calculations that do not result in a sentence on a single count above the
statutory maximum for that count"); United States v. White, 240 F.3d 127,
136 (2d Cir. 2001) (holding that Apprendi "appl[ies] only when a
sentencing court's findings increase the penalty faced by the defendant
above the statutory maximum for a given count and not when they merely
affect the length of a sentence within the statutory range"). Defendant
faced a statutory maximum of forty years' imprisonment. See
21 U.S.C. § 841(b)(1)(B). Defendant's 78-month sentence was at the lowest
possible statutory maximum under § 841(b) for any crack cocaine offense.
Accordingly, Apprendi does not apply to this case.
Even if Defendant had a valid Apprendi claim, the Second Circuit
recently made clear that Apprendi does not apply retroactively to § 2255
motions. See Coleman, 329 F.3d at 90. Consequently, Defendant could not
raise his Apprendi claims on collateral review. For these reasons, the
claims are barred.*fn2
To the extent that Defendant is not procedurally barred from bringing a
§ 2255 motion based on a claim of ineffective assistance of counsel, see
Massaro v. United States, 123 S.Ct. 1690 (2003), he has failed in fact to
establish this claim. Defendant argues that his attorneys were
ineffective because they "never attempted to either mitigate my
involvement, or my sentencing to the levels I was entitled to receive
based on my Plea Agreement with the Government." (Petition at 11.)
Defendant bases his argument on the fact that his plea agreement
stipulated to a Criminal History Category of I, but that he was subsequently sentenced according to a
Criminal History Category of n. As a consequence, Defendant failed to
qualify for safety-valve relief. Defendant was not, however, entitled to
a safety-valve reduction. His attorneys were therefore not ineffective in
failing to seek such a sentencing reduction. See Liberato, 2001 WL
930238, at *4.
Defendant also argues that the parties could have stipulated that he
ought to be accorded a Criminal History Category I, but that his
attorneys failed to pursue this option. Defendant's argument is
meritless. Even if Defendant's attorneys' had obtained such a
stipulation, as the plea agreement itself noted, parties cannot bind the
Court to an ...