The opinion of the court was delivered by: Honorable Richard J. Arcara Chief Judge United States District Court
Currently before the Court is the motion of petitioner Bruce DeBarros to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. For the reasons stated, the motion is denied.
On July 16, 2001, petitioner Bruce DeBarros appeared before this Court and, pursuant to a written plea agreement, pled guilty to various drug trafficking charges. Specifically, petitioner pled guilty to: Count I of Indictment 94-CR-222A, which charged him with violation of 21 U.S.C. § 846 (conspiracy to possess with intent to distribute and to distribute 100 kilograms or more of marijuana); and Count VI of Superseding Indictment 97-CR-193A, which charged him with violation of 21 U.S.C. §§ 953(c), 960(a) and 960(b)(2)(G) and 18 U.S.C. § 2 (aiding and abetting the unlawful exportation from the United States of 100 kilograms or more of marijuana, in the form of hashish).
The first paragraph of petitioner's written plea agreement indicated that:
The defendant, BRUCE DeBARROS, and the United States Attorney for the Western District of New York (hereinafter "the government") hereby enter into a plea agreement with the terms and conditions as set out below.
Thereafter, at ¶ 21, the plea agreement provided as follows: Prior to being prosecuted in the Western District of New York, defendant was a resident of the Province of Ontario in the Dominion of Canada. It is the understanding of the government that the defendant will seek permission to transfer for the purpose of serving his term of incarceration in a Canadian correctional facility. Should the Bureau of Prisons or Canadian correctional authorities request a statement from the government on this request, the government agrees not to oppose the transfer.
On October 31, 2001, the Court, consistent with the terms and conditions of the plea agreement, sentenced petitioner principally to a term of imprisonment of 108 months.
On May 30, 2002, the United States Attorney for the Western District of New York received a document entitled "Recommendation Request" from the United States Department of Justice, Criminal Division, Office of Enforcement Operations ("OEO"), seeking a recommendation "as to whether [petitioner] should participate in the international transfer program." In response, the United States Attorney for the Western District of New York advised the OEO that "[p]ursuant to ¶21 of the written plea agreement, the government agreed 'not to oppose the transfer.'"
On August 1, 2002, petitioner received a notification, through the Canadian Consulate General, which stated as follows:
This is to advise you that after considering all of the appropriate factors involved in this matter, the United States has denied the request for transfer to Canada of the above-named Canadian national who is currently incarcerated at FCI Ray Brook New York. The reason for the denial was because, given the inmate's history and the history of this case, a transfer would not be in the interests of justice of the United States.
Thereafter, petitioner, by letter dated on or about August 19, 2002, contacted the OEO regarding the denial of his transfer request. By letter dated September 12, 2002, OEO advised the petitioner as follows:
Assistant United States Attorney James P. Kennedy, Jr., informed us of the plea agreement when we solicited his recommendation to your transfer, thereby fulfilling paragraph 21 of the plea agreement, and we were aware of it when we made our decision. Authority to approve or deny transfer applications is vested in the Attorney General, who in turn is authorized to delegate that authority to specific officers of the Department of Justice (see Title 18, United States Code, Section 4102). It was one of those officers who made the decision in your case. While the Department routinely solicits the recommendations of the United States Attorneys' Offices, those offices are not authorized to make the final transfer decisions. So far as your plea agreement is concerned, it was, as expressly stated in the agreement, and agreement between you "and the United States Attorney for the Western District of New York (hereinafter 'the government')." "Government" in the ...