The opinion of the court was delivered by: John Gleeson, United States District Judge
Gordon Morgan moves pursuant to 28 U.S.C. § 2255 to set aside his conviction. For the reasons set forth below, the motion is denied.
Morgan was the leader of a marijuana distribution organization that shipped wholesale quantities of marijuana from California to New York City in 2000 and 2001. Morgan and his employees shipped the marijuana via UPS in packages that listed "Appliance World," a fictitious business, as the sender and "Liberty Images," Morgan's front business in Manhattan, as the recipient. Once the packages arrived in Manhattan, Morgan's employees transported them to an apartment in Brooklyn for distribution to the organization's customers. Investigators recovered more than 100 kilograms of Morgan's marijuana during the course of the investigation.
Morgan was arrested together with his wife, Simone Morgan, on April 11, 2001, at their California home. Following the arrest, Simone Morgan admitted that she and her husband had been involved "intermittently" in with shipping and selling marijuana since 1993 or 1994. She stated that her husband would buy the marijuana in California for $650 per pound and sell it in New York for $1,000 per pound. Simone further stated that Morgan had arranged to ship between eight to ten packages of marijuana, two or three times each week. Investigators had intercepted several of these parcels, and each contained between 18 and 46 pounds of marijuana. Simone Morgan was arrested and indicted along with her husband, but following her arrest she became a fugitive.
Morgan was charged in a two-count superseding indictment alleging conspiracy to distribute and to possess with intent to distribute marijuana and distribution of marijuana. The charges tracked the statutory language, and did not allege a specific quantity of marijuana. Neither charge carried a mandatory minimum or an enhanced maximum sentence.
Morgan entered into a written plea agreement permitting him to plead guilty to the conspiracy charge in satisfaction of both counts. Under paragraph two of the agreement, Morgan stipulated to the government's Guidelines estimate, which included a base offense level based on a drug quantity of between 700 and 1,000 kilograms of marijuana. Paragraph two further stated as follows:
2.... The Office estimates the likely adjusted offense level under the Sentencing Guidelines to be level 28, which is predicated on the following Guidelines calculation:
Base Offense Level (2D1.1(c)(5)) 30 Plus: Aggravating Role (3B1.1(a)) 2 Less: Acceptance of Responsibility (3E1.1(b)) - 3 Less: Global Disposition - 1 = Adjusted Offense Level 28*fn1
This level carries a range of imprisonment of 97 to 121 months, assuming that the defendant falls within Criminal History Category III. The defendant agrees to this Guidelines calculation and agrees not to dispute or seek a Fatico hearing with respect to the above-listed stipulation Guidelines. (Plea Agreement ¶ 2) (emphasis added).
The agreement also contained a waiver provision, set forth in paragraph 4:
4. The defendant will not (a) challenge the findings contained in the laboratory report or (b) file an appeal or otherwise challenge the conviction or sentence in the event that the Court imposes a sentence of imprisonment of 121 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.
Id. at ¶ 4 (emphasis added).
On June 26, 2002, Morgan pled guilty to Count One pursuant to the plea agreement before United States Magistrate Judge Steven M. Gold. Morgan acknowledged that he had read the agreement and signed it, and that he had no questions about it. Tr. June 26, 2002 at 36. Judge Gold advised Morgan of the possible penalties authorized for the charge, including a prison sentence of up to 20 years. Id. at 38. Judge Gold then turned to the stipulated Guidelines range set forth in the plea agreement:
THE COURT: Then I want to turn your attention to what we call the sentencing commission guidelines which are rules that Judge Gleeson would be required to consider and apply where within the zero to twenty year range authorized by statute your specific sentence, Mr Morgan, should be set. Have you had a chance to talk to your attorney, Mr. Leemon, about the guidelines and how Judge Gleeson is likely to apply them to you?
THE COURT: The prosecutor's estimate of the guideline range is 97 to 121 months. That does not bind Judge Gleeson. He could conclude that an even longer guideline range could be ...