MEMORANDUM OPINION AND ORDER
On June 7, 2006, Petitioner Miguel Aquino ("Petitioner") was sentenced, after a guilty plea before this Court, principally to 87 months imprisonment, to be followed by five years of supervised release. The judgment was appealed and affirmed, the mandate was issued by the United States Court of Appeals for the Second Circuit on October 15, 2007, and Aquino's petition to the Supreme Court of the United States for a writ of ceriorari was denied. In light of the amendments to the provisions of the Sentencing Guidelines concerning crack cocaine, the Court thereafter reduced Petitioner's sentence of imprisonment to 70 months, pursuant to 18 U.S.C. § 3582(c)(2).*fn1
On August 19, 2008, Petitioner filed this petition for relief pursuant to 28 U.S.C. § 2255, requesting that the Court conduct an evidentiary hearing to resolve disputed facts, vacate his sentence and resentence him on the basis that his trial counsel rendered ineffective assistance by: 1) failing to argue in connection with sentencing that Petitioner's offenses only involved 130 grams of cocaine base, not 220 grams of cocaine base as indicated in the Presentence Report ("PSR"), resulting in a higher base offense level under the Sentencing Guidelines; 2) failing to argue pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny that a jury was required to find beyond a reasonable doubt that 220 grams of cocaine base was involved; and 3) failing to argue that Petitioner was improperly found guilty on two counts (Counts Two and Five), in that both charged Petitioner with the same conduct: a single transaction of cocaine base on April 15, 2004.
The Court has considered thoroughly the parties' submissions as well as the underlying record, familiarity with which is presumed. For the following reasons, the petition is denied in its entirety.*fn2
In order to prevail under 28 U.S.C. § 2255, a petitioner must show that 1) his sentence was imposed in violation of the Constitution or laws of the United States; 2) the court was without jurisdiction to impose the sentence; 3) the sentence was in excess of the maximum authorized by law; or 4) the sentence is otherwise subject to collateral attack. A claim that is raised in a § 2255 petition but was not presented on direct appeal is procedurally barred from consideration by the district court reviewing the § 2255 petition unless the petitioner establishes cause for failure to raise the issue on direct appeal and actual prejudice arising from the alleged violation or, in the alternative, actual innocence. See Zhang v. United States, 506 F.3d 162, 166 (2d Cir. 2007). This rule, however, does not apply to ineffective assistance of counsel claims. See id.
A claim of ineffective assistance of counsel under the Sixth Amendment must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668 (1984). A petitioner must show: first, that counsel's performance fell below an objectively reasonable standard of performance, and second, that the deficient performance prejudiced the outcome of the proceeding. See United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990). Regarding the first prong, the Court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Bell v. Miller, 500 F.3d 149, 156 (2d Cir. 2007). The Court must also bear in mind that "there are countless ways to provide effective assistance in any given case." Aguirre, 912 F.2d at 560 (citing Strickland, 466 U.S. at 689). With respect to the second prong, prejudice is shown if, but for the deficient performance, there was a "reasonable probability" that the outcome of the proceeding would have been different. A reasonable probability is a probability "sufficient to undermine confidence in the outcome." See Mayo v. Henderson, 13 F.3d 528, 534 (2d Cir. 1994) (quoting Strickland, 466 U.S. at 694). A court need not address both prongs if a petitioner fails to make a sufficient showing on one. See Ordenes v. United States, No. 05 Civ. 8968(HB), 2007 WL 1766772, *10 (S.D.N.Y. June 9, 2007).
Petitioner faults trial counsel for failing to argue in connection with sentencing that Petitioner's offenses only involved 130 grams of cocaine base, not 220 grams of cocaine base as indicated in the Presentence Report ("PSR"), which, Petitioner contends, caused the Court to assign a higher base offense level under the Sentencing Guidelines than was proper. Petitioner proffers as evidence a "Report of Drug Property Collected, Purchased or Seized" dated May 5, 2004, which indicated that cocaine base had been seized at Petitioner's arrest, and that the "gross weight" was 172.6 grams, while the "net weight" was 130.8 grams. The Government concedes that the PSR's reference to "220 grams of cocaine base" was incorrect. The Government asserts, however, that the "gross weight" of 172.6 grams indicated in the drug report represents the total weight of the drug mixture or substance seized at Petitioner's arrest, while the "net weight" of 130.8 grams represents the weight of the cocaine base itself, which was only part of the mixture or substance that was seized. Petitioner does not dispute this assertion, but argues that the Court's adoption of the PSR's position as to quantity resulted in a base offense level that was two levels higher, under Section 2D1.1(c) of the Sentencing Guidelines, than the base offense level that would have been assigned if Petitioner's counsel had demonstrated that only 130.8 grams of actual cocaine base were involved.*fn3
Petitioner's argument misapprehends the application of Section 2D1.1(c) of the Sentencing Guidelines. Subsection A of the "Notes to Drug Quantity Table," which follows the table of base offense levels in Section 2D1.1(c) of the Sentencing Guidelines, provides, "Unless otherwise specified, the weight of a controlled substance set forth in the table refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance."*fn4
Therefore, it is the weight of the mixture or substance containing a detectable amount of cocaine base that is relevant in determining the proper base offense level under Section 2D1.1(c) of the Sentencing Guidelines, rather than the weight of the cocaine base itself within that mixture or substance. This application is consistent with the corresponding statute, which sets forth penalties dependent in part on the weight of the entire mixture or substance containing a detectable amount of the narcotic at issue, rather than the weight of the narcotic itself. See generally 21 U.S.C. § 841(b)(1). Accordingly, the failure of Petitioner's counsel to argue that the weight of the cocaine base itself was only 130 grams was not unreasonable and would not, in any event, have affected the proper application of the Guidelines based on the undisputed fact that the mixture and substance containing the cocaine base weighed between 150 and 500 grams. Petitioner has therefore failed to demonstrate ineffective assistance or prejudice on that basis.
Petitioner's counsel was also not ineffective for failing to pursue an Apprendi argument relating to the application of the Guidelines. The Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466 (2000) that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490. "The Apprendi rule applies to the resolution of any fact that would substitute an increased sentencing range for the one otherwise applicable to the case." See United States v. Gonzalez, 420 F.3d 111, 129 (2d Cir. 2005). Petitioner pled guilty to conspiring to distribute or possess with intent to distribute at least 50 grams of a mixture or substance containing a detectable amount of cocaine base (Count Two), and distributing or possessing with intent to distribute at least 50 grams of a mixture or substance containing a detectable amount of cocaine base (Count Five). Although the Court's finding, for purposes of calculating the proper base offense level under the Guidelines, that the weight of the drug involved in the relevant offenses was between 150 grams and 500 grams subjected Petitioner to a Guidelines range higher than that which would have applied had Petitioner's offenses only involved 50 grams, the sentencing ranges proposed by the Guidelines are not mandatory, as the Supreme Court held in Booker v. United States, 543 U.S. 220 (2005). In accordance with Booker and 18 U.S.C. § 3553(a), the Court did not construe the sentencing range proposed by the Guidelines to be mandatory, but applied its discretion by considering the advisory sentencing range as one of many factors set forth in 18 U.S.C. § 3553(a). (See Sentencing Tr. at 13.) Therefore, the Court's finding of drug weight did not subject Petitioner to a higher mandatory sentencing range, such that a jury finding would have been required under Apprendi. Nor did the Court's finding of drug weight subject Petitioner to maximum penalties higher than those provided by statute by virtue of his admission at the plea allocution that the drug at issue weighed at least 50 grams. See 21 U.S.C. § 841(b)(1)(A). Accordingly, Petitioner's counsel was not ineffective for failing to raise an Apprendi argument.
Petitioner lastly contends that his counsel was ineffective for failing to argue that Petitioner was improperly charged with, or found guilty of, multiple counts (Counts Two and Five) when the underlying offense conduct involved a single transaction of cocaine base on April 15, 2004.*fn5 "An indictment is multiplicitous if it charges the same crime in two counts. The primary problem is that the jury can convict on both counts, resulting in two punishments for the same crime in violation of the Double Jeopardy Clause of the Fifth Amendment." United States v. Ansaldi, 372 F.3d 118, 124 (2d Cir. 2004) (citing cases). "When the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 229, 304 (1932). Count Two charged Petitioner with conspiring, that is, agreeing with another person, to distribute or possess with intent to distribute at least 50 grams of a mixture or substance containing a detectable amount of cocaine base, see 21 U.S.C. § 846, while Count Five charged Petitioner with actually distributing or possessing with intent to distribute at least 50 grams of a mixture or substance containing a detectable amount of cocaine base. See 21 U.S.C. § 841(a)(1).*fn6 Count Two requires proof of a fact (the agreement with another person) that Count Five does not and thus, Counts Two and Five were not improperly multiplicitous. Accordingly, Petitioner's counsel was not ineffective for failing to assert that argument.
The Court has considered throughly all of Petitioner's remaining arguments and finds them to be without merit.
For the foregoing reasons, Petitioner's petition for relief pursuant to 28 U.S.C. § 2255 is denied. Because Petitioner has not made a substantial showing of the denial of a constitutional ...