The opinion of the court was delivered by: Sidney H. Stein, U.S. District Judge.
Angel Olivares, proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. Olivares asserts five grounds in support of his petition. He first claims that his sentence, imposed under what was believed to be a mandatory guidelines regime, is unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and United States v. Booker, 543 U.S. 220, 125 S. Ct. 2348, 147 L. Ed. 2d 435 (2005). Second, he asserts that after Booker and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), the Court erred in failing to submit to a jury the facts necessary to determine his criminal history category. Third, Olivares claims that the limited waiver of appeal rights contained in his plea agreement was unlawful in light of the impending changes in sentencing law at the time of his sentencing. Olivares asserts, fourth, that his counsel was constitutionally ineffective for (1) failing to object to the criminal history category used to calculate his sentence, (2) failing to request an adjournment of sentencing pending Booker, and (3) failing to file a direct appeal from Olivares' sentence. Finally, Olivares claims that his plea allocution was insufficient to support his plea in light of United States v. Gonzales, 420 F.3d 111 (2d Cir. 2005).
As set forth more fully below, Olivares' petition is denied because he waived his right to collaterally attack his sentence. Moreover, even if Olivares had not waived this right, his petition would be denied because Booker does not apply retroactively on collateral review, and in any event has no application to Olivares because he was sentenced to the statutory mandatory minimum term; even after Booker and Blakely, the facts necessary to determine a defendant's criminal history category may be found by the district court by a preponderance of the evidence; the limited appeal waiver in Olivares' plea agreement was not unlawful; his counsel was not ineffective; and Olivares' admission during his plea allocution that he conspired to distribute 50 grams or more of "crack" cocaine was sufficient to support his statutorily mandatory 120-month sentence.
Olivares was charged along with eight other individuals with violations of the federal narcotics laws. Specifically, Olivares was charged with conspiracy to distribute and possess with intent to distribute "50 grams and more of crack, one kilogram or more of heroin, and five kilograms and more of cocaine" from 1998 to 2002, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A) & 846. (Indictment No. 02 Cr. 1331 (SHS).)
Olivares entered into a plea agreement with the government in which he agreed to plead guilty to the single count of the indictment. (Plea Agreement dated Aug. 23, 2003, Ex. B to letter of Asst. U.S. Att'y David M. Rody, Esq., dated Mar. 3, 2006.) In the plea agreement, Olivares stipulated that he had distributed, and conspired to distribute and possess with intent to distribute, more than 50 grams of crack. He also stipulated that his sentencing guidelines range was 120-135 months' imprisonment, based on a criminal history category of III, a total offense level of 29 and a mandatory minimum of 120 months, pursuant to 21 U.S.C. § 841(b)(1)(A). (Id. at 2-3.) He also agreed to waive his right to seek a downward departure or adjustment from the stipulated sentencing range of 120-135 months' imprisonment. (Id. at 4.) The agreement also set forth that, notwithstanding the stipulated guideline range, "the sentence to be imposed upon the defendant is determined solely by the Court." (Id. at 4-5.) Finally, Olivares agreed that he would not "file a direct appeal, nor litigate under Title 28, United States Code, Section 2255 . . . any sentence within or below the Stipulated Guidelines Range set forth above (120 to 135 months)." (Id. at 5.)
On September 2003, Olivares pled guilty to Count One of the indictment before Magistrate Judge Douglas F. Eaton. When he was questioned as to the factual basis for his guilty plea, Olivares stated: "I sold 13 grams of crack to an undercover agent and conspired with two other co-conspirators to distribute 50 grams and more of crack." (Plea Tr. dated Sept. 2, 2003 at 19, Ex. C to Rody letter ("Plea Tr.").)
This Court sentenced Olivares on September 27, 2004, finding that Olivares' base offense level was 32, that his total offense level was 29, that his criminal history category was III, and that his Sentencing Guidelines range-given the mandatory minimum term under 21 U.S.C. § 841(b)(1)(A)-was 120 to 135 months. (Sentencing Tr. dated Sept. 27, 2004 at 18-19, Ex. D to Rody letter ("Sent. Tr.").) The Court sentenced Olivares to the statutory minimum of 120 months. (Id.) Finally, the Court advised Olivares of his right to appeal the sentence and also advised him that he had waived his right to appeal or collaterally attack the sentence that was imposed. (Id. at 21-22.)
Olivares did not file a notice of appeal. Rather, he filed this petition pursuant to 28 U.S.C. § 2255 in June 2005, and supplemented the petition in November 2005.
A waiver of the right to collaterally attack or appeal a sentence is enforceable if (1) the waiver was knowing and voluntary and (2) there is no meritorious claim of ineffective assistance of counsel with respect to the process that resulted in the waiver. See Frederick v. Warden, Lewisburg Correctional Facility, 308 F.3d 192, 195-96 (2d Cir. 2002) (collateral attack); United States v. Monzon, 359 F.3d 110, 116-19 (2d Cir. 2004) (appeal).
To prevail on a claim of ineffective assistance of counsel, Olivares must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668-94, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). First, he must show that his counsel's representation fell below an objective standard of "reasonableness under prevailing professional norms," id. at 688, and second, that there is a "reasonable probability" his sentence would have been different but for his counsel's error, id. at 694. "Judicial scrutiny of counsel's performance must be highly deferential." Id. at 698. The Court must indulge a "strong presumption that counsel's ...