The opinion of the court was delivered by: William M. Skretny United States District Judge
Presently before this Court is pro se Petitioner Lindsay I. Harrison's Motion to Vacate, Set Aside or Correct his Sentence and Conviction pursuant to 28 U.S.C. § 2255. For the reasons discussed below, Petitioner's motion is denied.
On January 22, 2004, Petitioner appeared before this Court and pled guilty to Count 1 of the Indictment, which charged him with Possession of a Firearm by a Convicted Felon in violation of 18 U.S.C. § 922(g)(1). The charge carried a maximum sentence of 10 years imprisonment, a $250,000 fine, or both. (Docket No. 22, ¶ 1.*fn1
Under the terms of the plea agreement, Petitioner and the Government agreed that the total offense level, including a reduction for Petitioner's acceptance of responsibility, was either 13 or 17, depending on whether this Court applied U.S.S.G. § 2K2.1(b)(5), which provides for a 4-level enhancement if the firearm is possessed in connection with another felony offense. (Docket No. 22, ¶¶ 8-10.) Each party reserved its right to argue its position on the application of this enhancement. (Docket No. 22, ¶ 8.) Petitioner and the Government further agreed that Petitioner's criminal history category was V. (Docket No. 22, ¶ 12.) Accordingly, the parties agreed that if Petitioner was sentenced at a total offense level of 13, criminal history category V, his Guideline range would be 30-37 months, and if he was sentenced at total offense level 17, criminal history V, his Guideline range would be 46-57 months. (Docket No. 22, ¶ 13.)
Included in the plea agreement is Petitioner's acknowledgment that he understands that he has no right to withdraw the plea of guilty based upon the Court's determination of the defendant's criminal history category; understands that the Probation Office will make an independent determination of the defendant's total offense level and criminal history category and that the Court will ultimately determine the appropriate total offense level and criminal history category. The defendant will not be entitled to withdraw the plea of guilty because of the Court's failure to adopt any Sentencing Guidelines calculations set forth in this agreement or because of an upward departure made by the Court [understands] [t]his plea agreement represents the total agreement between the defendant, LINDSAY I. HARRISON, and the government. There are no promises made by anyone other than those contained in this agreement. This agreement supersedes any other prior agreements, written or oral, entered into between the government and the defendant.
(Docket No. 22, ¶¶ 12, 14, 26.)
On September 13, 2004, after applying the 4-level U.S.S.G. § 2K2.1(b)(5) enhancement, determining that Petitioner's youthful offender conviction counted toward his sentencing calculations, and granting a 4-level downward departure motion under United States v. Lauerson, this Court sentenced Petitioner at a total offense level of 19 and a criminal history category VI, which resulted in a range of 63-78 months. 362 F.3d 160 (2d Cir. 2004). This Court then imposed, inter alia, a 63-month term of imprisonment and a 3-year term of supervised release. The Clerk of the Court filed the sentencing judgment on September 23, 2004. (See Docket No. 39.) Petitioner did not appeal his conviction or sentence.
On April 19, 2006, Petitioner filed the instant Motion to Vacate, Set Aside or Correct his Sentence and Conviction pursuant to 28 U.S.C. § 2255. Respondent filed a response in opposition on June 2, 2006.
Twenty-eight U.S.C. § 2255 allows federal prisoners to challenge the constitutionality of their sentences.That section provides, in pertinent part, that:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to ...