The opinion of the court was delivered by: TO The Honorable Richard M. Berman, United States District Judge
REPORT and RECOMMENDATION
KEVIN NATHANIEL FOX UNITED STATES MAGISTRATE JUDGE
Julio Ramirez ("Ramirez"), proceeding pro se, has made an application, pursuant to 28 U.S.C. § 2255, that his sentence be vacated or modified because of ineffective assistance Ramirez alleges he received from his counsel. Specifically, the petitioner contends his counsel failed to object to your Honor's imposition of a sentence of imprisonment that exceeded the stipulated sentence range identified in the plea agreement Ramirez reached with the prosecution. The petitioner also seeks a sentence reduction, pursuant to Fed. R. Crim. P. 35, based on his allegation that the government breached a cooperation agreement, through which Ramirez's brother was to assist the government and, in return, Ramirez would receive consideration for a more lenient sentence. In addition, Ramirez maintains his sentence should be adjusted by the court, based upon United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005), because he was never informed that the actual amount of the controlled substance involved in his case was an element of the offense that had to be proved by the prosecution.
The respondent opposes Ramirez's application. It contends that: (1) by signing a plea agreement with the government, Ramirez waived his right to make the instant application; and (2) Ramirez's claims are substantively without merit.
On June 13, 2000, Ramirez was charged, through Indictment No. 00 Crim. 656, with conspiring with others to distribute a controlled substance, in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846. Thereafter, Ramirez and his attorney, Roy R. Kulscar, Esq. ("Kulscar"), entered into negotiations with representatives from the government that resulted in a written plea agreement. Ramirez, his counsel and representatives from the government signed that plea agreement ("the agreement").
In the agreement, the parties stipulated, based upon calculations they made premised on applicable provisions of the United States Sentencing Commission Guidelines (the "Guidelines"), that upon Ramirez's tender of a plea of guilty, he would be exposed to a period of incarceration within the range of 108 to 135 months. The parties also agreed that Ramirez would neither appeal from nor attack collaterally, pursuant to 28 U.S.C. § 2255, any sentence imposed by the court "within or below the stipulated Sentencing Guidelines range of 108 to 135 months . . . ."
Ramirez appeared before your Honor on May 24, 2001, to tender a plea of guilty to count one of the indictment. Before doing so, Ramirez took an oath through which he swore to give true answers to the questions put to him during that proceeding. Your Honor quizzed Ramirez on a multiplicity of matters, among them: (1) his understanding of the charge made against him in count one of the indictment; (2) the rights he would give up by pleading guilty; and (3) the voluntariness of his tender of a plea of guilty. Ramirez assured the court that he had discussed the plea agreement with his attorney and understood the terms and conditions of that agreement. Ramirez also acknowledged that, under the terms and conditions of the agreement, he would not be allowed to appeal or attack collaterally, via a 28 U.S.C. § 2255 motion, any sentence equal to or less than 135 months imprisonment. Ramirez also acknowledged that he was aware that the agreement was between him and the government and was not binding on the court.
After pleading guilty, but before his sentencing proceeding was held, Ramirez obtained new counsel, B. Alan Seidler, Esq. ("Seidler"). Ramirez then made a motion "to withdraw his guilty plea pursuant to the agreement, and plead guilty without such an agreement." Ramirez made the motion so that he could make arguments at his sentencing proceeding which he believed could not be made under the terms and conditions of the plea agreement. Ramirez alleged he signed the plea agreement because Kulscar had made representations to him that a more lenient sentence might be obtained if, after Ramirez pleaded guilty pursuant to the plea agreement, Ramirez's brother cooperated with the government on Ramirez's behalf.
Your Honor held a two-day evidentiary hearing in connection with Ramirez's motion. At the conclusion of the hearing, your Honor found that Ramirez failed to meet his burden of establishing a "fair and just reason" to withdraw his guilty plea. Ramirez was then sentenced to 108 months in prison and 60 months of post-incarceration supervised release, the mandatory minimum period for such post-release supervision.
Ramirez appealed from the judgment of conviction, arguing that the court erred in not allowing him to withdraw his guilty plea so that he could plead guilty without a plea agreement. The Second Circuit Court of Appeals affirmed Ramirez's conviction and sentence. See United States v. Lopez, 385 F.3d 245 (2d Cir. 2004).*fn1
After the Supreme Court issued its decision in Booker, supra, explaining that the Guidelines are advisory and not mandatory, Ramirez asked the Second Circuit to remand his case to your Honor, under United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). The Second Circuit denied Ramirez's request, relying on United States v. Morgan, 406 F.3d 135 (2d Cir. 2005), a case in which it found that an appeal-waiver provision contained in a plea agreement is enforceable and forecloses a criminal defendant from mounting an appeal under Booker and United States v. Fanfan, 543 U.S. 220, 125 S.Ct. 738 (2005), when the defendant who is seeking relief from his sentence, has failed to seek relief from the underlying guilty plea in a timely fashion. See United States v. Lopez, No. 02-1412, slip op. at 2 (2d Cir. May 3, 2005). The Second Circuit found that Ramirez had entered into a valid and enforceable plea agreement, which included an appeal-waiver provision and, consequently, he could not have his sentence reviewed on the basis of the Supreme Court's decision in Booker/Fanfan. Id. Thereafter, Ramirez filed the instant petition.
28 U.S.C. § 2255 allows a convicted person held in federal custody to petition the sentencing court to vacate, set aside or correct a sentence. A properly filed motion under section 2255 must allege that: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255. Accordingly, collateral relief under section 2255 is available "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 ...