The opinion of the court was delivered by: Seybert, District Judge
On November 29, 2005, Petitioner Albert E. Isernio ("Petitioner") filed this Petition to vacate and correct his custodial sentence pursuant to 28 U.S.C. § 2255. Petitioner essentially challenges his sentence as unconstitutional and in excess of the maximum authorized by law. For the reasons below, the Court DENIES the Petition.
On January 27, 2004, after a jury trial, Petitioner entered into a plea agreement with the United States, pleading guilty to one count of conspiracy to commit bribery and mail fraud and one count of conspiracy to commit money laundering. According to the plea agreement, these offenses constituted a "group of closely related counts" for sentencing guideline purposes.
The plea agreement provided that the money laundering conspiracy count was subject to a total adjusted sentencing level of 29. Subsequently, Petitioner and the Government agreed that the total adjusted level was three levels too high; the Petitioner, Government, and the Court adjusted the overall level from 29 to 26. The bribery and fraud conspiracy was subject to a total adjusted sentencing level of 24.
Prior to sentencing, the Government asked that the Court apply two new enhancements based upon (1) Petitioner's role in the offense and (2) unrelated offense non-grouping. These two enhancements raised the sentencing level on the bribery and fraud conspiracy count from Level 24 to Level 29. On the money laundering conspiracy count, the enhancements raised the sentencing level from 26 to 28. Petitioner objected to these enhancements.
The Court ultimately sentenced Petitioner to 87 months of incarceration on the money laundering conspiracy count. This length of time was at the lower end of the range of imprisonment the Court could have imposed for a Level 29 sentence, which carries a range of imprisonment from 87-108 months. The Court sentenced Petitioner to a 60-month concurrent term for the bribery and fraud conspiracy count. This was below the range for a Level 26 sentence, which carries an imprisonment range of 63-78 months.
Petitioner moved to vacate his sentence on November 29, 2005. Petitioner's arguments are summarized as follows. First, Petitioner argues that the Court imposed an unconstitutional sentence because it contained enhancements that were neither elements of the offense found by a jury nor admitted by Petitioner. Second, the ex post facto and due process clauses prohibit this Court from imposing a sentence greater than the guideline range for a level 26 offense. Any sentence should be calculated only on the basis of facts proven to a jury beyond a reasonable doubt or admitted by a defendant. Third, Petitioner claims that the Government breached the plea agreement, and thus re-sentencing is required. Further, the breach of the plea agreement released Petitioner from any obligation to refrain from challenging his sentence. Fourth, Petitioner claims that he is entitled to re-sentencing for the same reasons his co-defendant, Mike Blake ("Blake"), received re-sentencing. Lastly, the Court should resentence Petitioner at the low end of Level 26 due to Petitioner's exceptional personal history and the unfair sentencing disparities between Petitioner and his co-defendants.
The Government opposes the Petition to vacate the sentence. First, the Government contends that the petition is procedurally infirm: Petitioner waived his right to challenge the conviction and Petitioner never raised these arguments on appeal.
Second, the law does not prohibit enhancements of a sentence; the law at the time of Petitioner's sentencing prohibited only factors that increased the statutory maximum. Lastly, the Government argues it did not breach the plea agreement, but even if it did, Petitioner would have received the same sentence, and thus any breach is inconsequential.
I. Petitioner Did Not Default Or Waive His Rights To Challenge
Before the Court can reach the merits of Petitioner's arguments, the Court must first determine whether Petitioner's waiver of his right to challenge his sentence in the plea agreement binds Petitioner. The waiver in the plea agreement stated the following:
The defendant will not file an appeal or otherwise challenge the conviction or sentence in the event that the Court imposes a term of imprisonment of 108 months or below. This waiver is binding on the defendant even if the Court employs a Guidelines analysis different from that set forth in paragraph 2 as long as the Court imposes a term of imprisonment of 108 months or below.
(Pet.'s Mot. Ex. A, ¶ 4.)
The Court ultimately sentenced Petitioner to 87 months of imprisonment. Clearly, this falls below a term of 108 months. Thus, according to the plain terms of the plea agreement, Petitioner appears to have waived his right to challenge his sentence. Petitioner, however, argues that the waiver does not bind Petitioner because the Government had breached the plea agreement.
"In general, a defendant's knowing and voluntary waiver of his right to appeal a sentence within an agreed guideline range is enforceable." United States v. Rosa, 123 F.3d 94, 97 (2d Cir. 1997). Waivers will not bind defendants, however, in certain circumstances: for instance, "if the Government breaches the terms of the plea agreement" or if a sentencing court bases the sentence upon a "constitutionally impermissible factor." Id. (citations omitted).
But before this Court analyzes whether the Government breached the plea agreement, the Court addresses one more issue: whether Petitioner should have raised any of these issues on appeal rather than in a motion to vacate pursuant to 28 U.S.C. § 2255. The Government argues that Petitioner failed to raise his claims on appeal, and such appellate default precludes his claims on a 2255 motion. (Opp. 13.) However, the Government also acknowledges that when a Petitioner claims that the Government breached the plea agreement, the Second Circuit has permitted 2255 motions despite the absence of an appeal. (Id. 17.) See United States v. Corsentino, 685 F.2d 48 (2d Cir. 1982); Paradiso v. United States, 689 F.2d 28, 30 (2d Cir. 1982) (per curiam); Urbaez v. United States, 92-CV-0791, 1992 U.S. Dist. LEXIS 12588 (E.D.N.Y. Aug. 13, 1992) (district court entertaining 2255 motion to vacate sentence based on breach of plea agreement despite lack of appeal). In light of the Second Circuit's case law and the Government's acknowledgment of it, ...