The opinion of the court was delivered by: Hurley, Senior District Judge
Petitioner Sam Cooper ("Cooper") moves pursuant to 28 U.S.C. §2255 to vacate, set aside or correct his sentence arising from his 2004 conviction in this Court. In addition, Cooper has moved (1) for appointment of counsel and (2) pursuant to Fed. R. App. P. 4(a)(5) and (6) to reopen the appeal time period for his criminal conviction. For the reasons set forth below, all three motions are DENIED.
On February 11, 2003, pursuant to an information which charged Cooper with drug distribution from on or about August 7, 2002 to September 3, 2002, Cooper pled guilty before Magistrate Judge Arlene R. Lindsay to cocaine distribution. There was no plea agreement. At the plea, Cooper was advised, inter alia, of his right to a grand jury presentation and his right to a trial by jury wherein he would be presumed innocent, the government would have the burden of establishing his guilt beyond a reasonable doubt and he would have the right to cross-examine witnesses and object to evidence that the government might offer. In addition he was advised that "[t]he maximum possible penalty that the Court can impose is 20 years. The minimum, of course, is zero. In addition, be aware that there is a maximum fine of $1 million under this count and that you would have to pay a $100 special assessment to the Court and that the Court could order restitution if it decided that it would be appropriate to do so in an amount that would be fixed by the Court." Cooper was also advised as follows:
Now, I don't know if you've been given estimates of what the guidelines range is in this case but I want you to know one thing about estimates. They're not binding on the Court. So, whatever your attorney or the government might have told you about what they believe the guidelines range may be, that's just their estimate or best guess based on their experience in this court. But it is only Judge Hurley who can determine what the guideline range is and what you need to know is if Judge Hurley decides that the guideline range is different than what you were told by your lawyer or the government, either it was more or less, you cannot withdraw your plea.
In his allocution, Cooper admitted that on two occasions he sold crack cocaine to an undercover agent. He could not recall, however, the exact dates of the transactions or the quantity of drugs he sold on either occasion. According to the government, the "estimate" of the amount sold was "approximately 4.3 grams."
Subsequent to the plea, the United States Probation Department prepared a pre-sentence report. Cooper's offense level was calculated based on a total narcotics weight of 6.6 grams consisting of 4.3 grams from multiple dates in August 2003 and 2.3 grams on September 18, 2003. Counsel for Cooper initially objected, by letter, to the inclusion of the amount from the September 18 sale:
We believe that this offense involved no more than 4.3 grams of cocaine base. The source of this belief is the government. The government provided me with two laboratory reports - one indicating 1.1 grams of net weight of cocaine base obtained on August 7, 2002 and the second indicating 3.2 grams net weight of cocaine base obtained on August 23 and 30, 2002. AUSA King told me that there were only two lab reports for a total of 4.3 grams of cocaine base not 6.6 grams. As you know a plea was taken on October 6, 2003 pursuant to a plea agreement prepared by the government. In that agreement the government estimates an offense level based on information "known to the Office at this time." That information was 4.3 grams of cocaine base not 6.6 grams. An additional 2.3 grams must be a mistake. The base offense level and adjusted offense level should be 24. The total offense level should be 21.
Thereafter, counsel for Cooper wrote to the Court withdrawing the objection:
We have researched this issue further and regretfully submit that in this situation, there is no form of estoppel against the government which would prohibit your Honor from imposing a sentence based on 6.6 grams of cocaine base. . . . [I]n our case, the Government did not know about the additional 2.3 grams and there is no plea agreement. It appears, however, that even if there were a plea agreement the defendant would either be entitled to withdraw his plea or the government would not be permitted to advocate an increase in the sentencing range. The Court, however, would still not be bound by the terms of a plea agreement.
Sentencing was held on June 18, 2004. The Court discussed with counsel the initial objection and its withdrawal concerning the amount of cocaine in the pre-sentence report. In response to the Court's query whether there was any application to set aside the plea, Cooper's counsel responded that she had discussed the matter with her client and they were not going to pursue that avenue. The following colloquy then took place:
The Court: Mr Cooper, do you understand this discussion that we've had?
The Court: And originally the government was of the belief that the amount of drugs was 4.3 grams and it turns out its 6.6 grams. One possibility that could be looked at would be to see if it would be appropriate for you to withdraw your plea or make an application to withdraw your plea. And that may or may not be granted. Ms. Gaffey has explained to me that she had reviewed that with you and that the defense's position is we should proceed with ...