The opinion of the court was delivered by: John F. Keenan, United States District Judge
Before the Court is the pro se motion of Petitioner Guillermo Julio Lopez ("Lopez") to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 ("§ 2255"). For the reasons discussed below, Petitioner's motion is denied.
Lopez, a Dominican Republic national, first came to the United States in 1969. On July 10, 1982, Lopez was convicted in New York State Supreme Court, New York County, of criminal sale of a controlled substance in the fifth degree. On August 23, 1982, Lopez was sentenced to two to four years of imprisonment. Lopez was paroled to the Immigration and Naturalization Service on October 24, 1986, and deported on November 4, 1986. In or about December 2001, Lopez re-entered the country.
On November 1, 2002, officers of the New York City Police Department arrested Lopez in the Bronx, New York, and charged him with criminal possession of a controlled substance in the seventh degree. After determining that Lopez had previously been deported from the United States following a felony conviction and had not been granted permission by the Attorney General to re-enter, agents of the Bureau of Immigration and Customs Enforcement arrested Lopez.
On January 9, 2003, Lopez was charged with entering the United States without permission after having been deported subsequent to a conviction for the commission of an aggravated felony, a violation of 8 U.S.C. § 1326(a) and (b)(2). Lopez pled guilty on May 20, 2003 to the sole count in the indictment. Before accepting Lopez's plea, the Court informed Lopez that § 1326(a) and (b)(2) carried a maximum sentence of twenty years imprisonment, and that the Court would consider the Sentencing Guidelines when determining his sentence. Lopez indicated that he understood, and acknowledged that he had reviewed the Pimentel letter*fn1 provided by the government. (Plea Tr. at 10)
On September 19, 2003, the Probation Department issued Lopez's Pre-Sentence Investigation Report ("PSR"). The PSR set forth Lopez's base offense level at 24; his adjusted offense level, after reductions for acceptance of responsibility, at 21; and his criminal history category at VI. The corresponding Sentencing Guidelines ("U.S.S.G.") range was 77-96 months of imprisonment. The Probation Department recommended a sentence of 96 months, at the top of the Guidelines range.
On September 26, 2003, Lopez's counsel, Isabelle A. Kirshner, Esq., filed an application for a downward departure under U.S.S.G. § 5K2.0 based on extraordinary family circumstances. Lopez's application claimed Lopez re-entered the United States to console his son, who had lost his wife, child, and mother-in-law in the November 12, 2001 American Airlines Flight 587 Belle Harbor airplane crash.
On October 15, 2003, the Court denied Lopez's application for a downward departure, acknowledging the terrible circumstances under which Lopez entered the United States, but did sentence him to 77 months of imprisonment, the bottom of the Guidelines range.
The Court adopted the Probation Department's determination that U.S.S.G. § 2L1.2 applied. Section 2L1.2 sets a § 1326 defendant's base offense level at 8. See U.S.S.G. § 2L1.2(a) (2002). Lopez's base offense level of 8 was increased 16 levels to 24, pursuant to § 2L1.2(b)(1)(A), because Lopez had been convicted of drug trafficking, an aggravated felony, in 1982 prior to his 2001 deportation.
Lopez filed a timely notice of appeal. Subsequently, Ms. Kirshner filed an Anders v. California, 386 U.S. 738 (1967), brief. Under Anders, if counsel determines that a client's requested appeal is frivolous, after a conscientious examination of the appeal she must file a brief "referring to anything in the record that might arguably support the appeal." Id. at 744. Ms. Kirshner's brief stated her opinion that no non-frivolous matters existed for the Court of Appeals to determine. On April 27, 2004, the United States Court of Appeals for the Second Circuit affirmed Lopez's conviction.
Lopez timely filed the instant motion, claiming (1) that the District Court erred in considering his 1982 conviction an aggravated felony while calculating his sentence under U.S.S.G. § ...