The opinion of the court was delivered by: Sifton, Senior Judge.
MEMORANDUM OPINION AND ORDER
Oscar Garcia was convicted on July 2, 2001, following a jury trial of (1) conspiracy to possess with the intent to distribute heroin in violation of 21 U.S.C. §§ 841(b)(1)(B), 846, and (2) possession with the intent to distribute heroin within 1,000 feet of a school, in violation of 21 U.S.C. § 860(a). On January 11, 2002, Garcia was sentenced to a term of imprisonment for 168 months on each count, to run concurrently, and to eight years of supervised release. On September 23, 2003, Garcia filed a petition pursuant to 28 U.S.C. § 2255, to vacate his sentence alleging that he received ineffective assistance of counsel, because counsel failed (a) to adequately explain the government's plea bargain offers; (b) to provide a Spanish interpreter during discussions about the government's plea bargain offer; (c) to adequately explain the functioning of the United States Sentencing Guidelines; (d) to explain to petitioner his right to testify; and (e) to introduce evidence in support of petitioner's defense. While this motion was pending, on July 26, 2004, Petitioner moved for leave to supplement his § 2255 motion, alleging further that his sentence was enhanced in violation of the Sixth Amendment on the basis of facts not found by a jury, and that trial and appellate counsel were ineffective for failing to raise this point at sentencing and on appeal. The United States of America, as respondent, opposes Garcia's § 2255 petition and the request to supplement his § 2255 petition.
For the reasons set forth below, Garcia's petition to vacate his sentence as supplemented pursuant to his request is denied.
The following facts are taken from the court records, the transcripts of prior proceedings, and the parties' submissions in connection with the present motion. Except as otherwise noted, the facts are undisputed.
On February 1, 2001, petitioner Oscar Garcia was arrested by agents of the Drug Enforcement Administration ("DEA") after he was observed delivering heroin to the car of his co-defendant Lilia Grizales. On March 7, 2001, Garcia was charged by a grand jury with conspiring to distribute and possess one kilogram or more of heroin in violation of 21 U.S.C. § 846 (Count One) and possessing one kilogram or more of heroin with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (Count Two).
On April 17, 2001, the government forwarded a proposed plea agreement to Garcia's attorney, Roy P. Miller ("Miller"). The proposed plea required that petitioner stipulate that count one involved at least one kilogram of heroin. Subsequent to this offer, the DEA Northeast laboratory determined that the net weight of heroin was 998 grams. On April 26, 2001, the Grand Jury returned a superseding indictment amending the amount of heroin alleged in counts one and two. The new count one charged conspiracy to distribute and to possess with intent to distribute 100 grams or more of heroin and the new count two charged possession with intent to distribute 100 grams or more of heroin.
On April 28, 2001, the government sent Garcia a revised plea offer ("second plea offer") based on the superseding indictment and estimated that his guideline sentencing range would be 78-97 months. The estimate included a three point downward departure for acceptance of responsibility. On May 4, 2001, Miller met with Garcia for over one hour and explained the government's plea offer. Garcia did not request a Spanish interpreter, although he was provided with an interpreter at all court proceedings. (Resp't Mem. Opp'n, Ex. 3, Decl. of Roy P. Miller, ¶¶ 3-8.) Garcia rejected the plea offer, and signed and dated a statement drafted by Miller which read:
I have read the entire agreement and discussed it with my attorney. I [u]nderstand all of its terms and I refuse and decline to enter a plea of guilty to any of the terms of the agreement. (Id. at 10.)
On May 15, 2001, the grand jury returned a second superseding indictment modifying count two of the previous indictment. The new count two charged Garcia with possession with intent to distribute 100 grams or more of heroin within 1,000 feet of a school, in violation of 21 U.S.C. § 860(a). On May 22, 2001, at the arraignment for the second superseding indictment, the government explained that the defendant now faced a greater penalty than before as a result of the filing of a prior felony information as a result of Garcia's 1997 conviction for heroin possession, which increased the statutory term of imprisonment pursuant to 21 U.S.C. 841(b)(1)(B) to a minimum of 10 years and a maximum of life imprisonment. (Resp't Mem. Opp'n, Ex. 4, 28-29.)
On May 31, 2001, the government made a second plea offer. The offer provided that Mr. Garcia would plead guilty to count one of the second superseding indictment and estimated his guideline range to be 97 to 121 months. On June 3, 2001, Miller met with Garcia again to explain the final plea offer. Again, Garcia rejected the plea offer and signed a statement prepared by Miller which read:
I have read the entire agreement and discussed it with my attorney. I [u]nderstand all of its terms and I refuse to plea guilty and continue to maintain innocence. (Resp't Mem. Opp'n, Ex. 3, ¶¶ 4-5; 12-17.)
During the first trial, Garcia testified that, among other things, he did not carry or deliver anything to his co-defendant Grizales on the day of his arrest. (Resp't Mem. Opp'n, Ex. 6, Tr. 451-453.) Garcia's first trial ended in a mistrial.
At a second trial, the government introduced for the first time a recorded telephone conversation between Garcia and a female friend while Garcia was being held in the Metropolitan Detention Center. Among other things, Garcia told his friend that although he did not know its contents, he did put something into co-defendant Grizales' car, contradicting his testimony in the first trial. (Resp't Mem. Opp'n § 2255 Petition, Ex. 7, ...