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September 16, 2005.

Hector Reyes, Petitioner,

The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge



  Before the Court is Hector Reyes' pro se motion to correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons stated herein, the motion is denied.


  On December 4, 2001, Reyes and seventeen other defendants were indicted on two counts. Count One, the only count naming Reyes, charged him and twelve other individuals with conspiracy to distribute five kilograms and more of cocaine, in violation of 21 U.S.C. § 846.

  Represented by his privately-retained attorney, Reyes entered into a Plea Agreement with the Government dated March 25, 2002. The agreement stipulated that (i) Reyes' base offense level would be 36 pursuant to United States Sentencing Guidelines ("Guidelines" or "USSG") § 2D1.1(c) (2) because his conduct involved at least 50 kilograms but less than 150 kilograms of cocaine; (ii) Reyes' plea of guilty would merit a two-level decrease in offense level for acceptance of responsibility pursuant to USSG § 3E1.1(a); (iii) Reyes would receive a one-level reduction pursuant to USSG § 3E1.1(b)2 for his timely acceptance of the plea agreement; and (iv) the resulting offense level would be 33. The parties further stipulated that Reyes' Criminal History Category was I, and that the total Guidelines range was 135 to 168 months. The agreement also provided:
The parties agree that the defendant does not intend to seek relief from the statutory minimum sentence provision pursuant to Title 18, United States Code, Section 3553(f), nor does he seek a reduction in sentence pursuant to U.S.S.G §§ 2D1.1(b)6 and 5C1.2.
. . . .
The parties agree that neither a downward nor an upward departure from the Stipulated Guidelines Range of 135 to 168 months is warranted.
. . . .
It is further agreed . . . that the defendant will neither appeal, nor otherwise litigate under Title 28, United States Code, Section 2255, any sentence within or below the Stipulated Guidelines Range of 135 to 168 months. . . .
Plea Agreement at 2-4.*fn1


  On March 25, 2002, Reyes pleaded guilty before Magistrate Judge Douglas F. Eaton. Magistrate Judge Eaton noted that Reyes was receiving simultaneous translation of the proceeding from a Spanish interpreter. Plea Transcript at 2. Reyes confirmed that he had never been treated for mental illness and that, while he had at one time been a drug addict, he was not then under the influence of any drug. Id. at 4-5. Reyes also confirmed that he had reviewed the charge against him with his attorney, and that he was satisfied with his attorney's representation of him. Id. at 5.

  Magistrate Judge Eaton then addressed the Plea Agreement, which Reyes stated he had reviewed with the assistance of his attorney and an interpreter. Id. at 6. Reyes confirmed that no promises other than those contained in the Plea Agreement were made to him to induce his guilty plea. Id. Reyes also expressed his understanding that the sentencing judge might impose a sentence deviating from the range stipulated in the Plea Agreement and that, nevertheless, Reyes would be bound by his guilty plea. Id. at 6-7.

  Magistrate Judge Eaton then explained the possible sentence faced by Reyes, noting that Congress has imposed a maximum sentence of life for the charged offense. Id. at 7-8. He further explained that the sentencing judge would consider the Guidelines to determine Reyes' sentencing range, and would then decide whether any departure from that range is appropriate. Id. at 8-9. Reyes confirmed that he was pleading guilty of his own free will and because he was guilty of the charged conduct. Id. at 10. After explaining at length the potential consequences of Reyes' guilty plea, including a statutory minimum of 10 years' incarceration and mandatory supervised release, Magistrate Judge Eaton turned to the specific terms of the Plea Agreement. Id. at Magistrate Judge Eaton noted that, under the terms of the Plea Agreement, Reyes agreed to seek no departure from the stipulated range of 135 to 168 months nor from the statutory 10 year minimum. Id. at 14. Magistrate Judge Eaton also apprised Reyes that his rights of appeal were limited by the Plea Agreement. Specifically, he explained that "[i]f [the sentencing judge] imposes a sentence of no more than 168 months, you have agreed in advance that you will not take an appeal." Id. at 15.

  Magistrate Judge Eaton then explained all of the rights that Reyes would have had at trial if he entered a plea of not guilty. Id. at 16-19. Reyes confirmed his understanding that, by pleading guilty, he was relinquishing those rights and that the sentencing judge may impose a sentence as though he had been found guilty. Id. at 19. The Government then stated the elements it would have had to prove at trial and summarized the evidence supporting the charge. Id. at 20-21. Reyes then admitted the charged conduct, his participation in a conspiracy to distribute approximately 65 kilograms of cocaine. Id. at 21.

  Magistrate Judge Eaton then read Count One of the indictment, to which Reyes pleaded guilty. Id. at 23-24. Magistrate Judge Eaton determined that Reyes was competent to enter a plea. He also found that the plea was voluntary and supported by a factual basis. Id. at 24. Magistrate Judge Eaton recommended that the Court accept Reyes' plea. Id. at 25. On May 2, 2002, the late Judge Allen G. Schwartz accepted the plea.*fn2


  Reyes appeared before the Court on June 18, 2003 for sentencing. Although counsel continued at all times to represent Reyes, Reyes submitted to the Court two pro se letters which counsel had neither received nor read. Sentencing Transcript at 2-3. The letters requested a downward departure for extraordinary rehabilitation, extraordinary family circumstances and minimum participation, and for relief under the "safety valve" clause, 18 U.S.C. § 3553(f). Id. Counsel stated that "we withdrew any motions for the safety valve and/or for the minimal participation" as part of the plea negotiations. Id. at 3. Counsel explained that ...

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