The opinion of the court was delivered by: William M. Skretny United States District Judge
Presently before this Court is pro se Petitioner Jacob DeJesus' Motion to Vacate, Set Aside or Correct his Sentence and Conviction pursuant to 28 U.S.C. § 2255. For the reasons discussed below, Petitioner's motion is denied.
On May 3, 2004, Petitioner appeared before this Court, executed a Waiver of Indictment, and pled guilty to a one-count Information charging him with possession with intent to distribute and distribution of cocaine in violation of 21 U.S.C. § 841(a)(1). That charge carried a possible maximum sentence of 20 years imprisonment, a $1,000,000 fine, or both. (Docket No. 11, ¶ 1.*fn1
Under the terms of the plea agreement, Petitioner and the Government agreed that the total offense level, including a reduction for Petitioner's acceptance of responsibility, was 15, and that Petitioner's criminal history category was II, which resulted in a Guidelines sentencing range of 21 to 27 months, a fine of $4,000 to $1,000,000, and a period of supervised release of 3 years. (Docket No. 11, ¶¶ 7-11.)
Included in the plea agreement is Petitioner's acknowledgment that he knowingly waives the right to appeal, modify pursuant to Title 18, United States Code, Section 3582(c)(2), and collaterally attack any sentence imposed by the Court which falls within or is less than the sentencing range for imprisonment, a fine and supervised release set forth in Section II, above, notwithstanding the fact that the Court may reach the sentence by a Guidelines analysis different from that set forth in this agreement.
On September 3, 2004, this Court sentenced Petitioner to a 23-month term of imprisonment, a 2-year term of supervised release, and declined to impose a fine. This Court also recommended that Petitioner be designated to the Intensive Confinement Center Program ("ICCP"). The Clerk of the Court filed the sentencing judgment on September 14, 2004. (See Docket No. 14.) Petitioner did not appeal his conviction or sentence.
On September 15, 2005, Petitioner filed the instant Motion to Vacate, Set Aside or Correct his Sentence and Conviction pursuant to 28 U.S.C. § 2255. Respondent filed an Answer and Memorandum of Law on November 10, 2005. Petitioner filed a reply on November 28, 2005.
Twenty-eight U.S.C. § 2255 allows federal prisoners to challenge the constitutionality of their sentences.That section provides, in pertinent part, that:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to ...