The opinion of the court was delivered by: Gerard E. Lynch, District Judge
On June 18, 2004, this Court sentenced defendant Alberto Gonzalez to 235 months of imprisonment, to be served concurrently with a state sentence of seven years to life he was already serving, following his plea of guilty to conspiring to import and distribute large quantities of heroin and cocaine. Gonzalez now petitions to vacate the sentence, arguing that his plea was not entered knowingly and intelligently, that he was denied effective assistance of counsel, that he was unlawfully sentenced according to the then-mandatory sentencing guidelines, and that his fine was excessive. The motion is without merit and will be denied.
Gonzalez claims that his plea was invalid because he was suffering from a brain tumor that interfered with his capacity to enter a knowing and intelligent plea. The record establishes that Gonzalez was fully competent to enter a plea, and did so voluntarily and with a full understanding of his rights and of the consequences of his plea.
The medical records of the Bureau of Prisons do not contain any indication that Gonzalez suffers from a brain tumor (Resp. Letter at 6, n.2), and Gonzalez offers no evidence other than his own assertion that he suffers, or has ever suffered, from such a malady. It is unnecessary to resolve any dispute about the details of Gonzalez's medical condition at the time of his plea, since any tumor Gonzalez may have had had no effect on his ability to enter a knowing and voluntary, and intelligent plea.
At the time of his plea Gonzales stated that he had a tumor "under my brain outside my brains." (5/2/03 Tr. 4.) He stated, however, that this condition did not affect his "ability to understand or to make decisions," only his "vision and memory." (Id.) Defense counsel stated that he had no doubt of defendant's competence to plead, and the Court found it "very clear . . . from his demeanor and his answer to my questions that Mr. Gonzalez is thoughtful, intelligent and  aware of what is going on." (Id. 5-6.)
Before accepting Gonzalez's plea, the Court fully explained to the defendant his constitutional rights (which had already been presented in a written document that defendant read and signed) (id. 7-10), the charges in the indictment, the elements of those charges, and the sentencing consequences of each and all (id. 10-16); and the sentencing terms of the plea agreement Gonzalez had entered with the Government (id. 16-18). Gonzalez affirmatively stated that he understood each item, and does not now contend that he did not.
The parties had signed a plea agreement which expressly stipulated that the applicable guidelines-sentencing range was 188 to 235 months of imprisonment, that neither a downward nor an upward departure from that range was warranted, and that defendant waived any right to appeal a sentence within or below that range. (Plea Agreement at 4-5.) Gonzalez affirmed under oath that he had read this agreement and discussed it with his attorney before signing it, and that he believed he understood its terms. (5/2/03 Tr. 16-17.) Nevertheless, the Court carefully explained the sentencing terms of the agreement, and Gonzalez specifically affirmed his understanding of each key sentencing provision. (Id. 17-18.) The Court explained, moreover, that while the agreement limited the rights of the Government and the defendant, it did not bind the Court, which was "required to make [its] own independent calculation under the sentencing guidelines." (Id.) Having previously advised defendant that the maximum sentence was life imprisonment (id. 12), the Court emphasized that "no one . . . can be sure what your sentence will be" until the sentencing date, when the Court had "decided, first, what is the correct calculation of the sentencing guidelines and, second, whether there is any basis for departing up or down from that range." (Id. 15-16.) The Court warned defendant, and he acknowledged that he understood, "even if your sentence is different from what your attorney or anyone else has predicted, [and] even if it is different from what you expect, once you [have] pleaded guilty, you will not be allowed to withdraw your plea." (Id. 16.)
In addition to explaining the terms of the written plea agreement, the Court specifically asked Gonzalez whether the written agreement constituted "the entire agreement between you and the government concerning your plea and sentence," to which Gonzalez unhesitatingly answered, "yes." To be certain that the response was not simply acquiescence in a leading question, the Court rephrased the question in another way, asking, "is there any agreement between you and the government that has been left out of the writing or any side deal or promise where somebody says here is the real deal but we didn't put it in writing." (Id. 17.) Gonzalez equally firmly answered, "no," denying that there was "anything like that." (Id.)
Gonzalez now claims that there was indeed, "[some]thing like that." He claims that "he was promised a sentence of 14 years maximum before any reductions and [due] to temporary loss of memory resulting from the brain tumor, [he] was unable to remember this promise at the time of the sentencing when being questioned by the Court." (Traverse at 5.)
Gonzalez's fanciful claims are refuted not only by his own sworn testimony at the allocution, but also by the affidavits of his attorneys, which were solicited by the Court in connection with Gonzalez's claims of ineffective assistance of counsel. See Cox v. Donnelly, 387 F.3d 193 (2d Cir. 2004) (holding that habeas court must give trial counsel an opportunity to explain allegedly deficient performance, by live testimony, affidavits, or otherwise, before granting habeas for ineffective assistance).
Sanford N. Talkin, Esq., Gonzalez's original attorney, avers that the plea negotiations were primarily addressed to Gonzalez's unsuccessful efforts to cooperate with the Government. (Talkin. Aff. ¶¶ 4-8.) He refers to no "original deal of 14 [ ] years," as claimed by Gonzalez. (Pet. Mem. at 14.) Instead, he simply relates that, after the failure of Gonzalez's efforts to cooperate, he "negotiated a plea agreement with the government" that called for "a sentencing range of 188-235 months." (Talkin Aff. ¶ 9.) Talkin further states that, despite being advised by Gonzalez of his claim to have a brain tumor, he "never viewed any documentation" of such a problem and "never observed any health problem" on Gonzalez's part "that [a]ffected his ability to comprehend his case, options, or circumstances." (Id. ¶ 13.)
Talkin's successor, Barry E. Schulman, Esq., met with Gonzalez "several times" after his plea in connection with Gonzalez's desire to retain Schulman to represent him at sentencing (Schulman Aff. ¶ 4):
During these meetings Mr. Gonzalez and I discussed at length the nature of the case and the plea agreement which he had signed. At all times it appeared to counsel that Mr. Gonzalez comprehended the exposure that the plea agreement contemplated. At no time did Mr. Gonzalez ever refer to a promise of fourteen years[,] and nothing in the plea ...