The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge*fn1
Angel Garcia ("Petitioner") petitions this Court, pursuant to 28 U.S.C. 2255, to vacate, set aside or correct his sentence. Petitioner claims that (1) he was denied effective assistance of counsel in violation of the Sixth Amendment; (2) he did not commit the offense of using, carrying or possessing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c); (3) he did not commit a Hobbs Act Violation as Charged under 18 U.S.C. § 1951; (4) it was improper to have imposed on him a special assessment of $400.00 under 18 U.S.C. § 3013; and (5) his plea of guilty was not knowing, intelligent or voluntary because the trial court failed to advise him of the mandatory restitution under 18 U.S.C. 3663(a). For the following reasons, the petition is denied.
On June 24, 2004, Petitioner waived his indictment and the Government filed a three-count information, 03 Cr. 1098 (HB) (the "Information"), which charged Petitioner in Counts One and Two with two Bronx robberies that took place on September 3, 2003, and in Count Three with using and brandishing a firearm during the robbery charged in Count One, in violation of 18 U.S.C. § 924(c). The two robberies in the Bronx alleged that Petitioner and his co-conspirators dressed up as police officers and robbed two merchants. One of the robberies took place in an apartment out of which clothing was sold, and the other robbery took place in a warehouse out of which compact discs were sold. During the robbery, Petitioner and his co-conspirators are alleged to have posed as police officers and at least some of them were alleged to have carried unconcealed firearms.
Also on June 24, 2004, Petitioner executed a plea agreement with the Government ("First Plea Agreement") in which he agreed to plead guilty to the three counts of the Information. (First Plea Agreement ¶¶ 1-5.) That same day, the defendant allocuted and was found competent to plead guilty, and his plea was accepted. (First Plea Tr. 9). The Government explained the statutory minimums and maximum sentence for each of the counts, as well as that "the Court must order restitution to any victims of the offense." (Id.)
During the first plea hearing, this Court confirmed that Petitioner was "pleading guilty voluntarily and of [his] own free will and because [he was] in fact guilty." (Id. 10.) Petitioner explained that on September 3, 2003, he and his co-conspirators committed two robberies, during which they impersonated police officers and stole clothing from one merchant and compact discs from the other merchant. (Id. 16-17.) The Government then proffered that it could establish that both the stolen clothing and compact discs had traveled in interstate commerce. (Id. 19.) The Court accepted Petitioner's first plea agreement.
On November 29, 2004, Petitioner filed a motion to withdraw his guilty plea solely as to Count Three of the Information, on the grounds that this Court and his lawyer failed to adequately advise him of the charge. Garcia's counsel stated that she "failed to fully research the required elements under the third count of the superseding information before having encouraged defendant to plead guilty." See United States v. Garcia, No. 03 Cr. 1098, 5 (Dec. 29, 2004). After a full hearing, on December 29, 2004, this Court granted Petitioner's motion to withdraw his guilty plea as to Count Three.
On February 15, 2005, a grand jury issued a superseding indictment, S3 03 Cr. 1098 (HB) (the "Indictment"), charging Petitioner with eleven counts. In pertinent part, Count One charged Petitioner with Hobbs Act robbery conspiracy, in violation of 18 U.S.C. § 1941, and Count Nine charged Petitioner with using a firearm during and in relation to the robberies, in violation of 18 U.S.C. § 924(c).
On June 27, 2005, Petitioner pled guilty to Count One and Count Nine of the Indictment, pursuant to a plea agreement with the Government executed in advance of a second plea hearing ("Second Plea Agreement"). (Second Plea Agreement 1-5.) The Second Plea Agreement advised Petitioner of the maximum and minimum sentences for the charges and advised him that restitution with respect to Count One was mandatory. (Id. 1.)
During the second plea proceeding, this Court confirmed that Petitioner was competent to plead guilty. (Second Plea Tr. 4-6.) Next, this Court confirmed that Petitioner was satisfied with the representation he received from his counsel.*fn2 (Id. 7.) After advising Petitioner of the maximum and minimum terms of incarceration and informing him that he would waive his right to a trial if he pled guilty, this Court asked Petitioner to explain his participation in the charged offenses, and he complied. (Id. 19-20.) The Government proffered that it could prove that the stolen goods had traveled through interstate commerce, and this Court accepted Petitioner's guilty plea. (Id. 21-22.)
On July 7, 2005, this Court conducted a sentencing hearing. (Sentencing Tr. 1-50.) After hearing the Petitioner's factual objections to the Presentence Investigation Report ("Presentence Report"), this Court calculated the Sentencing Guidelines Range for Count One to be 70 to 78 months' imprisonment. This Court calculated the Sentencing Guideline for Count Nine -- the Section 924(c) charge -- to be 84 months, to run consecutive to the sentence on Count One. Relying on the factors enumerated in 18 U.S.C. § 3553(a), including Petitioner's history and personal characteristics, the Court reduced the sentence on Count One to 58 months, which resulted in a total sentence of incarceration of 142 months, to be followed by three years of supervised release. The Court also imposed a special assessment of $400, which covered both Counts One and Nine of the Indictment and the two counts of the Information to which he had pled guilty prior to withdrawing his plea to the Section 924(c) charge. (Id. 46-47, 49.)
Although the Probation Office did not recommend restitution, the Government noted that the victim impact section of the Presentence Report stated that Petitioner and his co-conspirators had stolen $4,750 from the victims of the warehouse that was robbed on September 3, 2003. (Id. 28, 47.) Thus, the Court found that Petitioner was jointly and severally liable for $4,750, and ordered him to pay restitution to the victim of the warehouse robbery. (Id. 47.)
On July 15, 2005, Petitioner timely filed a notice of appeal. On appeal, Petitioner argued that his counsel was ineffective in advising him to withdraw his guilty plea to Count Three of the Information, the Section 924(c) charge. Petitioner complained that his counsel's advice resulted in the Government bringing additional charges and, ultimately, his receipt of a higher sentence. Petitioner also asserted that his conviction should be vacated because his guilty plea did not comply with Rule 11 of the Federal Rules of Criminal Procedure, based on this Court's alleged failure to advise him that, as a result of the guilty plea, he would be required to pay restitution.
On October 4, 2007, the Court of Appeals for the Second Circuit issued an order dismissing both of the Petitioner's claims with prejudice. See United States v. Garcia, 2007 WL 2914853 (2d Cir. 2007). Specifically, the Circuit Court found that Petitioner's attorney's advice to withdraw his plea to § 924(c) charge was voluntary because he was ...