The opinion of the court was delivered by: Cedarbaum, J.
Jeffrey Groppi petitions to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. On January 13, 2004, Groppi pled guilty to participation in a narcotics conspiracy and now argues that the government misrepresented his plea agreement, violated his constitutional rights, and engaged in outrageous conduct. Further, he argues that he is innocent because he was acting as an agent of the government. For the reasons that follow, Groppi's petition is denied.
Groppi was arraigned in September 2002, on one count of conspiracy to distribute and possess with intent to distribute hydrocodone in violation of 21 U.S.C. § 846. The government alleged that Groppi led a group which paid a doctor to provide unnecessary prescriptions which were then resold, given away, or used by members of the conspiracy.
Groppi and the government reached a plea agreement (the "Agreement"). Among other things, the Agreement stated the government's belief that Groppi would be sentenced under a guidelines range of 30 to 37 months in prison. The Agreement contained the following language relevant to this petition:
"The parties agree that neither a downward nor an upward departure from the Stipulated Guidelines Range set forth above is warranted." . "It is further agreed (i) that the defendant will not file a direct appeal from, nor litigate under Title 28, United States Code, Section 2255 and/or 2241, any sentence within or below the Stipulated Guidelines Range set forth above (30 to 37 months)." . "Furthermore, it is agreed that any appeal as to the defendant's sentence that is not foreclosed by this provision will be limited to that portion of the sentencing calculation that is inconsistent with (or not addressed by) the above stipulation."
Groppi's guilty plea was accepted at a January 13, 2004 hearing. During that hearing, the plea agreement and its provisions, which barred any appeal of a sentence that did not exceed 37 months, were discussed at length. Groppi indicated that he understood the plea agreement, had discussed it with his lawyer, *fn1 knew he was giving up all right to appeal, *fn2 and had entered the agreement voluntarily. Furthermore, Groppi said he had no doubt that he had violated the law in distributing hydrocodone.*fn3
Q: And are you satisfied that your lawyer has given you good advice in this matter?
A: Yes, ma'am Q: That he has represented you well?
A: Yes, ma'am." Plea Hr'g Tr. at 2.
Groppi's sentencing hearing took place on June 4, 2004. At the sentencing hearing, Groppi and his attorney, David Levine, mentioned, for the first time, Groppi's extensive history as a law enforcement informant. Over the last 20 years, Groppi appears to have provided assistance to the government in a number of narcotics related investigations. Levine indicated that it was Groppi's status as an informant which led to Groppi's current legal troubles. Groppi allegedly believed he was working on behalf of law enforcement when he became associated with James Sorrentino, a co-defendant in the case. According to Groppi, the government wanted him to infiltrate Sorrentino's crime operations, and as part of that assignment he began obtaining illegal hyrdocodone prescriptions in order to gain Sorrentino's trust. His lawyer argued that Groppi's reliance on pain killers and proximity to illegal conduct put him in a situation that made it easy for him to begin breaking the law himself.
At the hearing, Levine said he was raising Groppi's previous participation with law enforcement "not as any type of agency defense or any defense at all other than to explain how he found himself in the midst of this case." Sentencing Hr'g Tr. at 5. As he further explained, "as again this is not a defense -- but unfortunately his weaknesses with a lack of supervision led his conduct to escalate to a point where he crossed over the line and started to commit criminal conduct." Id at 6.
I asked Levine what his purpose was in discussing Groppi's previous cooperation with law enforcement for the first time at ...