The opinion of the court was delivered by: William M. Skretny United States District Judge
Petitioner Arjang Dante Panah appeared before this Court on August 2, 2002, executed a Waiver of Indictment, and pled guilty to a one count Information charging that he possessed with intent to distribute five-hundred (500) grams or more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). This Court accepted Panah's guilty plea and, on May 10, 2004, sentenced him to 72 months' imprisonment. Panah's judgment of conviction became final on June 10, 2004.*fn1
On May 13, 2005, Panah filed a motion, pro se, pursuant to 28 U.S.C. §2255.*fn2 Therein, Panah requests that this Court correct his sentence due to his counsel's failure to object to the Probation Department's erroneous calculation of his criminal history score in the Pre-Sentencing Report ("PSR"). (Motion ¶ 12.) For the reasons set forth below, the motion is denied.
By signing his plea agreement, Panah stipulated to the following facts. In early August 2000, Panah had a telephone conversation with an individual ("CS-1") cooperating with the United States Drug Enforcement Agency ("DEA"), in which he discussed traveling from California to Buffalo, N.Y. to deliver to CS-1 approximately two pounds of methamphetamine. Panah arrived in Buffalo on August 11, 2000, met with CS-1, indicated that he was prepared to sell to CS-1 two of the four pounds of methamphetamine he had in his possession, and provided CS-1 with two samples. During a search of Panah's hotel room on August 12, 2000, DEA agents discovered approximately 1795.7 grams of a mixture containing d-methamphetamine hydrochloride. (Docket No. 26 ¶ 6.)
The violation to which Panah pled carries a mandatory minimum term of 10 years' imprisonment with a maximum sentence of life imprisonment. 21 U.S.C. §§ 841(a)(1) and (b)(1)(A); Docket No. 26 ¶ 1. The parties stipulated that Federal Sentencing Guidelines §§ 2D1.1 (a)(3) and 2D1.1(c)(3) applied to the offense, providing for a base offense level of 34. (Docket No. 26 ¶ 7.) The government agreed not to oppose a recommendation for a three level downward departure based on Panah's acceptance of responsibility. Id. ¶ 8.
The plea agreement also reflected the government's understanding that Panah had a criminal history category of II. Id. ¶ 10. A total offense level of 31 and criminal history category of II resulted in a Guidelines sentencing range of 121 to 151 months. Id. ¶ 11.
However, the parties further stipulated, at paragraphs 10 and 12 of the plea agreement, that the Court makes the final determination as to a defendant's criminal history category and offense level and that Panah he had no right to withdraw his plea of guilty based on that determination.
On August 2, 2002, before accepting Panah'a guilty plea, this Court conducted a hearing in compliance with Rule 11 of the Federal Rules of Criminal Procedure. Panah confirmed that he had fully consulted with his attorney and understood his advice (PT*fn3 at 3), and further stated that he held a bachelor's degree (PT at 8), had no difficulty understanding the Court or his attorney (PT at 9), was "very satisfied" with his attorney's representation (PT at 9), and understood the charges against him and the maximum sentence he would have faced had he gone to trial (PT at 11-12).
When the Court reviewed Panah's likely sentencing exposure based on the offense level and criminal history category in the plea agreement (PT at 15), Panah stated his belief that his criminal history category should be a I, rather than a II (PT at 16-17). Referring to the plea agreement, the Court noted that "these numbers don't lock anything in" and [t]hey're the best judgment of how things will likely work out." (Id.)
THE COURT: If my numbers differ with the calculations, with the criminal history number, whether it's lower or higher, you're bound to accept my calculations, but at this point none of these are locked in, and you cannot withdraw your plea of guilty if you disagree, if I find that it's a two and not a one, you're stuck with that basically. You cannot withdraw your plea of guilty. Do you understand that?
THE DEFENDANT: Yes, your Honor, I do. (PT at 17-18) [emphasis supplied].
Prior to Panah's sentencing, the Probation Department calculated a criminal history score of III, rather than II, and included that finding in the PSR. (ST at 2; Docket No. 44 (sealed).) On April 28, 2004, Panah's attorney filed Defendant's Statement with Respect to Sentencing Factors, ...