The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
Now before the Court is the pro se petitioner's application to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the application is denied.
Section 2255 provides, in relevant part, as follows:
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 collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255. "[A] collateral attack on a final judgment in a federal criminal case is generally available under § 2255 only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect which inherently results in a complete miscarriage of justice." U.S. v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (citation omitted). The Court may dismiss a section 2255 petition without conducting a hearing if the petition and the record "conclusively show" that petitioner is not entitled to relief. 28 U.S.C. § 2255. As will be seen below, petitioner's arguments and submissions do not merit an evidentiary hearing.
The facts of this case were accurately set forth in Respondent's Response [#138] in this action, and need not be repeated in their entirety. For purposes of the instant Decision and Order, it is sufficient to note the following facts. Petitioner was indicted in case number 98-CR-6024 for, inter alia, violating 18 U.S.C. § 152 (bankruptcy fraud), 18 U.S.C. § 1957(a) (illegal monetary transactions), and 18 U.S.C. § 1956(a)(1)(B)(i) (money laundering). Significantly, the crimes charged in the indictment occurred in 1993 and 1994. Petitioner's trial was scheduled to begin on March 13, 2000, however, he fled the jurisdiction. Petitioner was captured in April 2002, when he was found living in Florida under an assumed name. Petitioner was subsequently indicted in case number 02-CR-6040 with violating 18 U.S.C. § 3146 (bail jumping), and was also charged by way of information with violating 18 U.S.C. § 922(g)(2) (fugitive in possession of a firearm).
On May 10, 2002, petitioner and the Government entered into a Plea Agreement, in which petitioner agreed to plead guilty to the aforementioned charges. The parties agreed that petitioner's combined adjusted offense level was 29 and that his criminal history category was II, which would result in a sentencing range of 97-121 months under the United States Sentencing Guidelines ("guidelines"). However, in exchange for petitioner's agreement to plead guilty, the Government agreed not to oppose any recommendation by the Probation Department that petitioner receive a 2-level downward adjustment for acceptance of responsibility as to the bail jumping and firearms violations. The parties further agreed that, if petitioner were to receive a two-level downward for acceptance of responsibility, that his offense level would be 27, which would result in a sentencing range for a term of imprisonment of 78-97 months. Nonetheless, petitioner acknowledged that the Court would ultimately determine the appropriate offense level and criminal history category, and that he would not be entitled to withdraw his plea if the Court failed to adopt the sentencing calculations in the agreement. Petitioner also agreed that the amount of monetary loss resulting from his bankruptcy fraud and money laundering crimes was $556,144.00. (Plea Agreement ¶ 7). The Plea Agreement was executed in open court, following an extensive plea colloquy. (See, 46-page Transcript [#138-3]. During the colloquy, petitioner indicated that he fully understood the consequences of pleading guilty and that he was satisfied with the performance of his attorney.
Prior to sentencing, petitioner moved for a downward departure, since the Pre- Sentence Investigation Report recommended against a downward adjustment for acceptance of responsibility. At sentencing, the Court denied the request, stating:
Obviously, your conduct in absconding just before trial, your conduct in living and working under the name of Salvatore Cianciola -- obviously your cousin's last name -- . . . in Palm Bay, Florida, you did that by opening a bank account, obtaining a Florida driver's license, securing a passport under this false name; further, your conduct following your arrest in Florida of contacting a friend from jail on or about April 24th, 2002, and asking him to clean out the apartment you were living in, specifically requesting that all valuables, papers, two wallets containing identification in your real name and false name and a handgun with ammunition be removed. As you are aware, your friend notified the FBI in Florida. He located 200 rounds of ammunition in different locations in the house and garage, and your friend cooperated with the FBI and turned over all items to the FBI. That firearm, which is a Titan .25 caliber semi-automatic, was in fact possessed in the Middle District of Florida while you were a fugitive from justice.
All this conduct to I think anyone who looks at it -- and I certainly look at it -- would appear to be obviously obstructive and without acceptance of responsibility; and therefore, the Court declines to find that you have accepted responsibility. In fact, this Court finds by a preponderance of evidence that you have not accepted responsibility.
(Sentencing Transcript 11-12).
The Court then determined that, with an offense level of 29, petitioner's sentencing range under the guidelines was 97-121 months. The Court sentenced petitioner to, inter alia, 97 months in prison. (See, Sentencing Transcript [#125). In calculating the offense level for the bankruptcy fraud charges, the Court imposed a "14-level increase pursuant to Guideline Section 2B1.1(b)(1)(H), since the amount fraudulently discharged at bankruptcy exceeded [$]400,000." (Id. at 24). The Court similarly imposed a 14-level upward adjustment in calculating the offense level for the illegal money transaction and money laundering charges, "because the loss exceeded [$]400,000." (Id. at 25). The Court also imposed a 4-level upward adjustment pursuant to guideline section 2K2.1(b)(5) as to the charge of possession of a firearm by a ...