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 Victor Contreras ("Contreras") to vacate, set aside, or correct his sentence pursuant to 18 U.S.C. § 2255. For the reasons that follow, Contreras' petition is denied.
Prior to October 29, 2002, a Confidential Informant ("CI") alerted members of the Drug Enforcement Task Force ("Task Force") that drugs were being sold from Apartment 3L at 245-247 Wadsworth Avenue in Manhattan (the "Apartment"). The Task Force acted on this information and installed a camera to remotely monitor those entering and exiting the Apartment.
On October 29, 2002, the Task Force, using the remote camera, observed Contreras enter the Apartment. Subsequently, the CI, acting on instructions from the Task Force, entered the Apartment to buy crack cocaine. After the CI exited, he informed the Task Force that he had purchased crack cocaine while inside. The CI also informed the Task Force that four men were in the Apartment - two were cooking crack cocaine and two were counting money.
While the CI informed a Task Force officer of what he had seen, another Task Force officer observed all four men leaving the Apartment. This officer alerted other officers that Contreras was carrying a plastic bag.
Contreras then entered a livery cab. The Task Force followed the cab and pulled it over when it began driving in an erratic manner. Contreras exited the cab upon a Task Force officer's request. One officer observed a plastic bag of what appeared to be crack cocaine in Contreras's open jacket pocket. Contreras was then arrested and read his Miranda rights. It was later confirmed that the bag contained approximately 435 grams of crack cocaine. Contreras acknowledged that the drugs were his, but said he found them in a shoe box.
On November 13, 2002, Contreras was indicted on one count of conspiring to distribute and to posses with intent to distribute approximately 435 grams of crack cocaine in violation of 21 U.S.C. § 846. Contreras was subsequently indicted on a superseder for distributing and possessing with the intent to distribute approximately 435 grams of crack cocaine in violation of 21 U.S.C. §§ 812, 841(a)(1)-(b)(1)(A) and 18 U.S.C. § 2.
On January 6, 2003, Contreras' counsel, David Touger, made a motion to suppress the crack cocaine, claiming it was the fruit of an illegal search. On May 5, 2003, the Court held a hearing on the motion to suppress, and on May 14, 2003, denied the motion.
On May 21, 2003, Contreras entered an unconditional guilty plea without a plea agreement to both counts of the indictment. The Government, in accord with United States v. Pimentel, 932 F.2d 1029 (2d Cir. 1991), provided Contreras with a letter stating how the United States Sentencing Guidelines (the "Guidelines" or "U.S.S.G.") should be applied. The letter explained that under U.S.S.G. § 2D1.1(a)(3), Contreras' offense level was 34. Under U.S.S.G. §§ 3E1.1(a)-(b), Contreras would be entitled to a total reduction of 3 levels for accepting responsibility for his crimes. Contreras' Criminal History Category was I. The reduced offense level, 31, and Criminal History Category I, correlated to a Guidelines range of between 108 and 135 months.
However, the government stated that Contreras did not qualify for relief from the statutory mandatory minimum sentence under 21 U.S.C. §§ 841(a)(1)-(b)(1)(A) of 120 months imprisonment.
During the plea proceedings, the Court asked Contreras if he understood the charges against him, if he understood that the statutory minimum applied to his case, if he was satisfied with his attorney's performance, and if he was offering to plead guilty of his own free will. Contreras answered all of the above questions in the affirmative. The Court also explained to Contreras that by pleading guilty he waived certain constitutional rights, including the right to have the government prove his guilt beyond a reasonable doubt. "Do you understand that?" the Court asked. Contreras answered, "Yes." (Tr. 7.) When asked if in October of 2002 he had a "deal with at least one other person to sell . . . 50 grams and more of crack," Contreras replied, "Yes." (Tr. 13-14.)
The Probation Office's pre-sentencing report agreed with the Government's Pimentel letter that Contreras' Guidlelines range was 108-134 months, and that the statutory minimum of 10 years applied, making the applicable Guidelines range 120-134 months. On November 25, 2003, the Court sentenced Contreras to the bottom of the range, 120 months imprisonment.
Contreras, through Mr. Touger, filed a timely notice of appeal to the Second Circuit. The appeal focused on the Court's denial of the motion to suppress the crack cocaine. On September 9, 2004, the Second Circuit issued a summary order dismissing Contreras' appeal on the grounds that he had entered an unconditional guilty plea, meaning he forfeited the right to appeal any non-jurisdictional defect that occurred prior to the ...