The opinion of the court was delivered by: WILLIAM SKRETNY, District Judge
1. Currently before this Court is Petitioner Kenneth J. Happy's
Motion to Vacate, Set Aside or Correct his Sentence pursuant to
28 U.S.C. § 2255.
2. On May 10, 2004, Petitioner pled guilty, pursuant to a
written plea agreement, to a one-count felony Information
charging him with Interstate Transportation with Intent to Engage
in Criminal Sexual Activity with a Minor in violation of Title
18, United States Code, Section 2324(b).
3. In pertinent part, the plea agreement sets forth the
parties' understanding that Petitioner would be sentenced to a
term of imprisonment between 57 and 71 months or a term of
imprisonment between 46 and 57 months. (Plea Agree., ¶ 14). In
paragraph 20 of the plea agreement, Petitioner waived his right
to appeal or collaterally attack any sentence that was within or
below the anticipated guidelines range of 57 to 71 months. (Plea
Agree., ¶ 20).
4. On September 10, 2004, this Court imposed a 57-month
sentence with the recommendation that the Bureau of Prisons
designate Mr. Happy to the Intensive Confinement Center Program,
also known as Shock Incarceration or Boot Camp. In making its recommendation, the Court cautioned Petitioner,
"[n]ow, I can't guarantee that [the Intensive Confinement Center
Program] will be made available to you." (Sentencing Trans., p.
18). Petitioner did not file a direct appeal.
5. On or about January 14, 2005, the Bureau of Prisons
abolished the Intensive Confinement Center Program, effective
immediately. (Schechter Aff., Ex. A). Petitioner filed the
instant Motion seeking to vacate, set aside or correct his
sentence on April 28, 2005.*fn1 In support of his Motion,
Petitioner argues that his sentence has been rendered invalid by
the abrupt elimination of the Intensive Confinement Center Program.
6. Pursuant to 28 U.S.C. § 2255, a defendant may move to
vacate, set aside or correct a sentence that was imposed in
violation of Constitution or laws of the United States or "is
otherwise subject to collateral attack." See 28 U.S.C. § 2255.
Petitioner argues that his sentence is ripe for collateral attack
because this Court imposed it based on the "material false
assumption" that he would be eligible for participation in the
Intensive Confinement Center Program. Citing to United States v.
Malcolm, 432 F.2d 809, 816 (2d Cir. 1970), Petitioner argues
that this Court has authority under 28 U.S.C. § 2255 to
resentence him under these circumstances.
In Malcolm, the Second Circuit vacated a defendant's sentence upon
a finding that the sentencing judge was "confused, if not altogether
mistaken, about [the defendant's] prior criminal record." Id. at 816. In
doing so, the Malcolm court reasoned that:
[m]isinformation or misunderstanding that is
materially untrue regarding a prior criminal record,
or material false assumptions as to any facts
relevant to sentencing, renders the entire sentencing
procedure invalid as a violation of due process.
Id. at 816 (internal citations omitted). Nonetheless, the Malcolm court
acknowledged, "[n]ot every defect in the sentencing process . . . is of
constitutional dimension." The court was clear to emphasize that a
sentencing judge "may exercise a wide discretion in the sources and types of
information used to assist to him in determining an appropriate, just and
enlightened sentence." Id. (internal citations omitted).
7. This Court finds that Petitioner is not entitled to the
relief he seeks. As an initial matter, the record is clear that
Petitioner waived his right to appeal or collaterally attack any
sentence which fell within the highest stipulated guidelines
range, to wit, between 57 and 71 months. This waiver was not
contingent in any way upon his eligibility for the Intensive
Confinement Center Program. Because Petitioner's imposed
sentence, 57 months, falls within that range, he is bound by the
unambiguous terms of his waiver. Even if Petitioner had not
explicitly waived his right to collaterally attack his sentence,
the waiver of his right to appeal his sentence precludes him from
challenging it through the instant petition. See United States
v. Pipitone, 67 F.3d 34, 39 (2d Cir. 1995). Courts have long
enforced waivers of the right to directly appeal or collaterally
attack a sentence even when the grounds for the appeal or attack
arise after the entry of a plea. See Garcia-Santos v. United
States, 273 F.3d 506, 509 (2d Cir. 2001).
Secondly, in sentencing Petitioner, this Court did not assume
that the Intensive Confinement Center Program would be made
available to him. To the contrary, Petitioner was explicitly
cautioned that there was no guarantee that he would qualify or be
accepted into the program. As such, Petitioner's sentence was not
predicated on any "material false assumption" related to the continued availability of Shock
Incarceration. The recommendation that Petitioner be designated
to the Intensive Confinement Center Program was simply that, a
recommendation. With respect to such sentencing recommendations,
"it is settled law that it is within the discretion of the Bureau
of Prisons, and not the court, as to whether a prisoner is
admitted to [the Intensive Confinement Center Program]" or given
drug and psychiatric treatment. Rickenbacker v. United States,
365 F. Supp. 2d 347, 353 (E.D.N.Y. 2005) (analyzing a
petitioner's Bureau of Prisons claim under 28 U.S.C. § 2241). As
Petitioner's sentence was not contingent upon his participation
in the Intensive Confinement Center Program, his sentence is not
rendered invalid by the elimination of that program.
8. In any case, this Court maintains that 57 months is a just
and fair sentence that is sufficient, but not greater than
necessary to reflect the seriousness of Petitioner's offense and
to afford adequate deterrence, among other things. See
18 U.S.C. § 3553. This reasoning is unaltered by the Bureau of
Prisons' decision to terminate the Intensive Confinement Center
Program, thereby eliminating it as an option for Petitioner.
9. For the foregoing reasons, Petitioner's request for an order
vacating his sentence will be denied.
10. Petitioner has requested an order assigning the Federal
Public Defender's Office for purposes of this Motion. This Court
is prepared to enter such order nunc pro tunc provided that the
Assistant Federal Defender submits the requisite documents in
support of its appointment. IT HEREBY IS ORDERED that Petitioner's Motion to Set Aside his
Sentence (Docket No. 34) is DENIED.
FURTHER, that the Federal Public Defender's Office shall file
any documents in support of its appointment on ...