The opinion of the court was delivered by: William M. Skretny United States District Judge
Petitioner Peter McIntosh appeared before this Court on October 4, 2004, executed a Waiver of Indictment, and pled guilty to a one-count Information charging him with attempting to re-enter the United States, in violation of 8 U.S.C. §1326, after previously having been deported following conviction for an aggravated felony. This Court accepted McIntosh's guilty plea and, on January 10, 2005, sentenced him to 41 months' imprisonment. McIntosh's judgment of conviction became final on February 4, 2005.*fn1
On August 26, 2005, McIntosh filed a motion to amend or correct his sentence, "seek[ing] redress to this sentencing issue through a 28 U.S.C. § 2255 proceeding."*fn2 (Docket No. 14 at 1, 2.) McIntosh alleges that the Government breached a term of his plea agreement and he is seeking the remedy of specific performance. On February 21, 2006, McIntosh filed an "addendum motion," raising United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed. 2d 621 (2005), and requesting that his sentence be corrected. For the reasons stated below, McIntosh's § 2255 motion, as amended, is denied.
McIntosh's October 4, 2004 guilty plea was made pursuant to a written plea agreement. The plea agreement's preamble states as follows:
The defendant, PETER MCINTOSH, and the Uniteds 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. (Docket No. 16, Ex. A.)
The provision McIntosh claims was breached is found at paragraph 16:
16. To the extent that the defendant applies for a transfer from the United States to Canada while he is in the custody of the Bureau of Prisons pursuant to Title 18, United States Code, Section 4100, et seq., the government agrees not to oppose such an application.
As part of his plea, McIntosh agreed that he:
[K]nowingly 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 that is within or less than the sentencing range for imprisonment, fine, and supervised release set forth in Section II of this agreement . . . . The defendant understands that by agreeing to not collaterally attack the sentence, the defendant is waiving the right to challenge the sentence in the event that in the future the defendant becomes aware of previously unknown facts or a change in the law which the defendant believes would justify a decrease in the defendant's sentence. Id. ¶ 21.
McIntosh did apply for a transfer to Canada and, on May 20, 2005, the United States Attorney for the Western District of New York received from the United States Department of Justice, Criminal Division, Office of Enforcement Operations ("OEO"), a document titled "Recommendation Request." The OEO sought a "recommendation as to whether McINTOSH, PETER should participate in the international prisoner transfer program." (Id., Ex. B.) The United States Attorney for the Western District of New York responded on the same day, stating that "[p]aragraph 16 of the Plea Agreement provides that government would not oppose request for transfer." (Id.; Docket No. 14, attach. 1.)
One month later, by letter dated June 20, 2005, the OEO advised Caroline Turcotte, Manager, International Transfers, Correctional Service of Canada, that it had denied McIntosh's request for transfer to Canada based on "his prior state felony conviction for drug trafficking and his earlier deportation by federal immigration ...