The opinion of the court was delivered by: John T. Elfvin S.U.S.D.J.
On August 9, 2005, Petitioner Frank Masterana filed the instant petition pursuant to 28 U.S.C. §2255 seeking to set aside, vacate or correct his sentence. On August 17, 2005 the government filed a motion to dismiss the petition. For the reasons stated herein, the petition will be denied.
In April 1998, Petitioner was charged in a five-count Indictment with various gambling offenses and with engaging in foreign travel and use of telephone facilities in order to facilitate such gambling offenses, in violation of, inter alia, 18 U.S.C. §§371, 1084, 1952 and 1955. On February 28, 2001 Petitioner executed a plea agreement and pled guilty to Count 1 of the Indictment, specifically:
"a violation of Title 18, United States Code, Section 371, conspiracy to violate sections of the United States Code that relate to illegal gambling, namely (a) 18 U.S.C. §1955 (conducting, financing, managing, supervising, directing and owning an unlawful bookmaking business that was in substantially continuous operation for a period in excess of thirty (30) days, and had a gross revenue in excess of $2000 on various days during this period, and was conducted, financed, managed supervised, directed and owned by five or more persons, and was operated in violation of Article 225 of the New York Penal Law; (b) 18 U.S.C. §1952 (using facilities in interstate and foreign commerce with intent to distribute the proceeds of, and to otherwise promote, manage, establish, carry on and facilitate the promotion, management, establishment and carrying on of a bookmaking business enterprise carried on in violation of Article 225 of the New York Penal Law, and to thereafter perform and attempt to perform acts to promote, manage, establish, and carry on, and to facilitate the promotion, management, and carrying on of the bookmaking business) and (c) 18 U.S.C. §1084 (while being in the business of betting and wagering, using an interstate and foreign wire communication facility to transmit in foreign commerce bets and wagers on sporting events and contests and communications which entitled the recipients to receive money and credit as a result of these bets and wagers)."
Plea Agreement ¶1. On March 4, 2005, this Court sentenced Petitioner to twelve months of imprisonment and three years of supervised release. Petitioner took no appeal from either his conviction or his sentence.
In this petition, Petitioner asserts that his sentence violates his rights guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution because he did not have access to the Pre-Sentence Report ("PSR") wherein Petitioner was referred to as an "organizer and leader" and which recommended an increase in Petitioner's offense level under the United States Sentencing Guidelines ("USSG" or "Guidelines") based on that role and because he was promised that, in exchange for his plea of guilty and cooperation with the government, he would not be sentenced to any period of imprisonment. Petitioner contends that, as such promise was the only reason he entered a guilty plea, his sentence should be vacated.*fn2
As part of his plea agreement, Petitioner waived his right to appeal or collaterally attack his sentence, provided such sentence fell within or below a stipulated Guidelines range. Specifically, paragraph 24 of the plea agreement provided:
"The defendant understands that Title 18, United States Code, Section 3742 affords a defendant a limited right to appeal the sentence imposed. The defendant, however, knowingly waives the right to appeal, modify pursuant to Title 18, United States Code, Section 3582(c)(2) and collaterally attack any sentence imposed by the Court which falls within or is less than the sentencing range for imprisonment, a fine and supervised release set forth in Section II, above, notwithstanding the fact that the Court may reach the sentence by a Guidelines analysis different from that set forth in this agreement."
Plea Agreement ¶24. Petitioner's Guideline range was specified in Section II, paragraph 11 of the plea agreement:
"It is the understanding of the government and the defendant that, with a total offense level of 13 and criminal history category of V, the defendant's sentencing range would be a term of imprisonment of 30 to 37 months, a fine of $4,000 to $40,000, and a period of supervised release of 2 to 3 years. Notwithstanding this, the defendant understands that at sentencing the ...