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May 11, 2004.

UNITED STATES OF AMERICA, Government, -against- RAMON JIMENEZ, Defendant

The opinion of the court was delivered by: RICHARD CASEY, District Judge


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 months' imprisonment.

  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 20, 2001).

  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 ...

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