The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge
Petitioner Joseph Burns, represented by counsel, has petitioned pursuant to 28 U.S.C. § 2255 to vacate his sentence of 180 months imprisonment. (07 Civ. 7870,*fn1 Dkt. No. 1: Pet. at ¶ 2.) Burns claims that he was denied effective assistance of counsel because: (1) his first attorney, Alan Seidler, "advised Petitioner to attend proffer sessions with the government without first debriefing him and explaining any risks; in particular, . . . that the disclosures made during the proffer sessions might both increase Petitioner's adjusted base offense level and preclude him from getting a downward departure on the basis of the 'safety valve'" (Dkt. No. 90: Burns § 2255 Br. at 2);*fn2 and (2) Burns' second attorney, Robert Feldman, failed at sentencing to "address the statutory factors set forth in 18 U.S.C. § 3553(a)" and urge Judge Mukasey to consider Burns' attempt at cooperating with the government even though the government refused to submit a 5K1 letter (Burns § 2255 Br. at 2, 16).
The parties have consented to decision of Burns' § 2255 petition by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (See 07 Civ. 7870, Dkt. No. 8.)
For the reasons set forth below, Burns' petition is DENIED.
On October 19, 2004, a grand jury indicted Burns and other co-conspirators. (Dkt. No. 96: Gov't Letter Br. at 1.) Four counts of the indictment pertained to Burns. (Gov't Letter Br. at 1.) Count one charged Burns with conspiring to distribute fifty grams or more of methamphetamine in violation of 21 U.S.C. § 846; count four charged Burns with distributing and possessing with intent to distribute five grams or more of methamphetamine in violation of 21 U.S.C. §§ 812, 841(a)(1) and (b)(1)(B); count six charged Burns with distributing and possessing with intent to distribute, multi-gallon quantities of gamma butyrolactone ("GBL") in violation of 21 U.S.C. §§ 802(32)(A), 812, 841(a)(1) and (b)(1)(C); and count seven charged Burns with structuring approximately $150,440 in cash transactions in violation of 31 U.S.C. § 5324(a)(3). (Gov't Letter Br. at 2; see generally Dkt. No. 90: Neuman Aff. ¶ 2; Dkt. No. 90: Burns Aff. ¶ 2.)
Burns' Proffer Sessions with the Government
Burns attended four proffer sessions with the government: three with his first attorney, Alan Seidler, and the last one with his second attorney, Robert Feldman. (Dkt. No. 96: Gov't Letter Br. at 2.) Prior to attending the proffer sessions, Burns and his first attorney, Alan Seidler, and A.U.S.A. Steven Feldman signed a proffer agreement stating:
(2) In any prosecution brought against [Burns] by this Office, except as provided below the Government will not offer in evidence on its case-in-chief, or in connection with any sentencing proceeding for the purpose of determining an appropriate sentence, any statements made by [Burns] at the meeting, . . . .
(3) Notwithstanding item (2) above: . . . (c) the Government may also use statements made by [Burns] at the meeting to rebut any evidence or arguments offered by or on behalf of [Burns] (including arguments made or issues raised sua sponte by the District Court) at any stage of the criminal prosecution (including . . . sentencing) in any prosecution brought against [Burns]. (4) [Burns] understands and agrees that in the event [Burns] seeks to qualify for a reduction in sentence under Title 18, United States Code, Section 3553(f) or United States Sentencing Guidelines, Sections 2D1.1(b) (6) or 5C1.2, the Office may offer in evidence, in connection with the sentencing, statements made by [Burns] at the meeting and all evidence obtained directly or indirectly therefrom. . . . .
(9) [Burns] and Attorney acknowledge that they have fully discussed and understand every paragraph and clause in this Agreement and the consequences thereof. (Gov't Letter Br. Ex. E: Proffer Agreement ¶¶ 2-4, 9.)
The Government's Pimentel Letter
On November 4, 2004, the government provided Burns with a Pimentel letter, informing Burns of the government's view that Burns' base offense level was 38 and that his offense level should be increased by two levels based on Burns' role as an organizer, leader, manager or supervisor. (Dkt. No. 90: Gov't Letter Br. at 2; see Dkt. No. 90: Neuman Aff. ¶ 6.) The government, however, conceded that Burns would be entitled to a three level reduction if Burns clearly accepted responsibility during his plea allocution. (Gov't Letter Br. at 2.) The government concluded that Burns' Sentencing Guidelines range was 235 to 293 months imprisonment. (Govt' Letter Br. at 2; Neuman Aff. ¶ 6.)
The Guilty Plea Proceeding
On November 22, 2004, represented by his second attorney, Robert Feldman, Burns pleaded guilty before Judge Mukasey to counts one, four, six and seven of the indictment. (Dkt. No. 39: 11/22/04 Guilty Plea ("P.") 2, 11-15, 28-31.) Before allocuting, Burns acknowledged that he had adequately conferred with his defense counsel and was "satisfied with [defense counsel's] representation." (P. 8.) Burns stated that he understood the charges to which he was pleading guilty, the rights he was waiving, and the maximum sentence he faced. (P. 9-20.) Burns stated that he understood that if he pleaded guilty, the government would have to prove the amount of drugs involved to Judge Mukasey, rather than to a jury. (P. 15-17.) Judge Mukasey explained that the case was governed by the Sentencing Guidelines, after which the following colloquy occurred:
THE COURT: However, even if I determine that there was a basis for going below the low end of the range, in no event could I go below 120 months, that's ten years. Do you understand that?
THE DEFENDANT: Yes, your Honor. Not even with safety valve?
THE COURT: Good question. If you qualify for a safety valve adjustment, then I can go below -- in other words, if the safety valve changes your guidelines range, so that it comes out below 120 months, then I could go below 120 months. Also, if you qualify for a safety valve adjustment and there is a reason for going below what would otherwise be the minimum under the guidelines, even if it's more than 120 months, if you qualify for a safety valve, I can go below 120 months if there was a reason to depart downward. But if I did that, the government would have the right -- that is, if I depart downward on any basis other than cooperation, the government would have the right to appeal.
THE DEFENDANT: Yes. [A.U.S.A.]
MEDING: Your Honor, may I note for the record that at this time the government does not believe that the defendant is eligible for the safety valve, both because of his criminal history category and also because it is the government's position that he is an organizer or a manager.
[DEFENSE COUNSEL] FELDMAN: We do not concede any of that.
THE COURT: I understand. You can haggle with the government about that if you need to, and if you need to haggle with me, you can haggle with me.
If the outcome is that you qualify, then you qualify. But there is no guarantee. The government is taking the position now that you do not.
THE DEFENDANT: Yes, your Honor. . . . .
THE COURT: Has anyone at all, Mr. Burns, made any kind of promise or inducement to you in order to get your to plead guilty?
THE DEFENDANT: Prior to this Pimentel offering that came to me, there was a prosecutor . . . Steven Feldman who was on the case, and I had gone and had three proffer meetings with him, and my lawyer at the time was Alan Seidler, and Mr. Feldman made it very clear that if I lied about anything in those proffer hearings that he would take away my safety valve and use everything against me. So I told him everything of my involvement, all of the responsibility that I had. . . . I am bringing it up, sir, because at one of my proffer hearings I was told -- I was promised 87 months. I had asked, How can I get out of the MDC detention center and get on with this process because I wanted to get my time over with. He said you can just sign for 87 months. And he looked at my lawyer Alan Seidler at the time and said, with safety valve and the three points for acceptance of responsibility, at my base level 32, would bring me down to 87 months. So in my mind I was thinking that was the worst that I could get was 87 months. Then all of a sudden we have new assistant . . . U.S. attorneys on the case, and it seems like everything that when I went to proffer has been taken away from me. What [A.U.S.A.] Feldman promised me is not coming to be at all. . . . There would be no reason for me to go to the proffer meeting other than trying to get the safety valve, and, also, in addition, in hopes to work into a further cooperation agreement with the government. I was told if I didn't lie about anything, which I didn't lie about anything at all, within my proffer meetings, that I would get the safety valve. That was the whole reason for me going there because obviously I am in a load of trouble here.
THE COURT: Obviously, there is going to be some litigation about this later on, but understand, if it turns out that either that promise was not made or that it's not enforceable, I am not going to let you withdraw your plea, even if it turns out that you're not going to get the 87 months and even if it turns out you're going to get the heavier sentence that's in the Pimentel letter or something even heavier than that.
THE DEFENDANT: I understand that, you Honor. . . . .
THE COURT: If we have to have a hearing on this, we will have a hearing on it, and we will figure out, or I will figure out what happened. But even if it comes out after I hear the evidence that I don't rule the way you want me to rule, and the sentence turns out to be higher than you want it to be, I am not going to let you withdraw your plea.
THE DEFENDANT: Yes, your Honor. . . .
(P. 21-26.) Burns allocuted and pleaded guilty to the four counts of the indictment that pertained to him, but allocuted only to the statutory amounts of drugs. (P. 28-31.) Judge Mukasey accepted Burns' guilty plea. (P. 32.)
On September 9, 2005, the Probation Office issued a Presentence Investigation Report (the "Report" or the "PSR"), which calculated that Burns' highest base offense level was 38 because the offense "involved in excess of 1.5 kilograms of methamphetamine (actual) and approximately 100 gallons of gamma butyrolactone (GBL) . . . [which] when converted to their equivalent weights in marijuana, are equal to approximately 30,000 kilograms of marijuana." (Dkt. No. 96: Gov't Letter Br. Ex. A: Presentence Investigation Report ¶ 85.) The Report advised a two level increase to 40 because Burns "acted as a[n] organizer or leader of the criminal activity." (PSR ¶ 88.) Based on Burns' plea allocution acceptance of responsibility, a 3-level downward adjustment was appropriate, leading to an adjusted offense level of 37. (PSR ¶¶ 104-05.) The PSR also stated that Burns had two criminal history points, for "a Criminal History Category of II." (PSR ¶¶ 109-16.) Based upon the calculations of Burns' offense level and criminal history category, the PSR concluded that Burns' Sentencing Guidelines range was 235 to 293 months. (PSR ¶ 153.)
Defense Counsel's Sentencing Letters to Judge Mukasey
On September 27, 2005, defense counsel Robert Feldman wrote a letter to Judge Mukasey disputing the Report's calculation of Burns' offense level and criminal history category and moving for a downward departure based on Burns' "[d]iminished [c]apacity." (Dkt. No. 67: Burns 9/27/05 Letter at 1; accord, Dkt. No. 90: Neuman Aff. Ex. B: Burns 8/25/05 Letter.) Specifically, defense counsel argued that Burns' base offense level was 32, pursuant to Section 2D1.1(c)(4), because Burns only pleaded guilty to possessing with intent to distribute fifty grams of crystal methamphetamine rather than 1.5 kilograms. (Burns 9/27/05 Letter at 1.) Defense counsel also disputed the two level increase because Burns never admitted to "acting as a leader or organizer." (Burns 9/27/05 Letter at 1.) Defense counsel concluded that Burns' offense level should be 29 after reducing the base offense level by three points for Burns' acceptance of responsibility. (Burns 9/27/05 Letter at 1.)
Regarding Burns' criminal history category, defense counsel "urge[d]" Judge Mukasey to "discount" Burns' April 7, 1993 Criminal Trespass and Simple Assault conviction pursuant to Section 4A1.2(e)(1) because, "[b]y liberal measure and giving [Burns] the benefit of the doubt," it occurred more than ten years before the instant offense. (Burns 9/27/05 Letter at 1.) Defense counsel concluded that Burns should only receive one criminal history point and, therefore, the guidelines range was between 97-121 months. (Burns 9/27/05 Letter at 2.)
Defense counsel requested a downward departure, maintaining that when Burns committed the instant offense, he was taking methamphetamine as a substitute for Adderall, which he had been prescribed to combat his Attention Deficit and Hyperactivity Disorder ("ADHD" or "ADD"), because his insurance had lapsed and he could not afford to purchase Adderall. (Burns 9/27/05 Letter at 2.) Defense counsel argued:
When [Burns] lost his health insurance, he was unable to procure the Adderall and was compelled to self medicate with illegal methamphetamine to substitute for the legally prescribed amphetamine based Adderall. . . . In that sense [Burns'] crystal meth use was not voluntary. In Dr. Kaplan's [the psychologist hired by Burns] unchallenged profession opinion "that [Burns] was compelled to 'self medicate' and therefore his drug use was not completely voluntary" pursuant to Section 5K2.13(par 2). In short, in order for [Burns] to function and work and earn a living, he needed the meth to focus his wandering ADHD inflicted mind.
(Burns 9/27/05 Letter at 2-3.) Defense counsel further argued that Burns' post-traumatic stress disorder, stemming from sexual abuse during childhood, and two prior concussions exacerbated the negative affects arising from his addiction to methamphetamine. (Burns 9/27/05 Letter at 2-3.)
Defense counsel "anticipate[d] that the government will point out that diminished capacity cannot result from or should not result from the voluntary ingestion of illegal drugs or other intoxicants. . . . [B]y the time the offense was committed, the question of whether the ingestion of drugs was voluntary or not, even in the light most favorable to the government, is at best open and debatable." (Burns 9/27/05 Letter at 3.)
On November 16, 2005, defense counsel supplemented his initial letter with a second letter, which clarified why Burns' April 7, 1993 conviction should not be counted towards his criminal history. (See Dkt. No. 69: Burns 11/16/05 Letter at 1-2.) Defense counsel also argued that the government acted in "bad faith" by not submitting a 5K1.1 letter and thus, "[a]t the very least, [Burns] should have the benefit of the 5C1.2 safety valve limit on the Statutory Minimum." (Burns 11/16/05 Letter at 2.) Defense counsel reiterated his argument for a downward departure. (Burns 11/16/05 Letter at 2-4.)
The Government's Sentencing Response Letter
On November 28, 2005, the government responded, arguing that the Probation Department accurately calculated Burns' guidelines range. (Dkt. No. 70: Gov't 11/28/05 Letter at 6.) Specifically, the government argued that 38 was the appropriate guidelines offense level because: Burns told Dr. Seigel that he purchased approximately 12 pounds (5,443 gm) of crystal methamphetamine. Even assuming the crystal methamphetamine was only 50% pure (a very low level of purity), this would still total approximately 2.72 kg of methamphetamine (actual). Level 38 applies to any amount of drug in excess of 1.5 kg of methamphetamine (actual). The guidelines also provide that 1 gm of methamphetamine (actual) is equal to 20 kg of marijuana. 2,721 gm of methamphetamine (actual) is equivalent to 54,420 kg of marijuana.
In addition, based on the GBL seized from the Harlem basement, Burns was involved with more than approximately 100 gallons of GBL. The Sentencing Guidelines provide that .5 gm of GBL constitute one "unit." Accordingly, Burns possessed with intent to distribute approximately 757,000 units of GBL. See U.S.S.G. § 2D1.1, Note (F) to the drug quantity table. 757,000 units of GBL is equivalent to 757 kg of marijuana.
In total, Burns is responsible for in excess of 55,177 kg of marijuana. Level 38 applies to an amount of marijuana in excess of 30,000 kg. Accordingly, level 38 applies. (Gov't 11/28/05 Letter at 11.) The government also argued that Burns "failed to present evidence that he was suffering from a significantly reduced mental capacity at the time he committed the offenses of conviction, or that his ...