The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
Petitioner Jose Diaz ("Diaz" or the "Petitioner") moved on June 4, 2009 to vacate the sentence imposed by this Court on June 11, 2008 based on Diaz's plea of guilty to a one count information charging Diaz with conspiracy to distribute five kilograms and more of cocaine in violation of Title 21 United States Code Section 846 (the "Petition"). For the reasons discussed herein, Diaz's motion is denied.
The charge to which Petitioner pled guilty was based on Petitioner's participation in a gang that committed close to one hundred robberies and kidnappings, mostly of drug dealers between 2002 and June 2006. (Presentence Report ("PSR") ¶ 14.) In these robberies, Petitioner and others obtained narcotics proceeds and narcotics which they subsequently resold. (PSR ¶¶ 14-17, 20, 22.) Firearms were frequently possessed in furtherance of these robberies. (PSR ¶ 22.)
Prior to entering his guilty plea, Petitioner and his counsel entered into a plea agreement with the government dated January 29, 2008 (the "Plea Agreement"). In the Plea Agreement, the parties stipulated that the Petitioner was subject to a 10 year mandatory minimum sentence and that his total offense level was 33 and Criminal History Category was I. (Plea Agreement at 1, 2.) More specifically, the parties agreed to a total offense level of 34 because the conspiracy charged involved at least 15 but not more than 50 kilograms of cocaine and that a two level enhancement was warranted because "a firearm was possessed by the defendant and others in connection with the offense" and that a three level reduction was warranted because of Mr. Diaz's acceptance of responsibility. (Id. at 2.) Petitioner further agreed that "neither a downward nor an upward departure from the Stipulated Guidelines Range set forth above is warranted" and that "neither party will seek such a departure or seek any adjustment not set forth herein." (Id.)
The parties also agreed that "defendant will not file a direct appeal, nor litigate under Title 28, United States Code, Section 2255 and/or Section 2241, any sentence within or below the Stipulated Guideline Range set forth above (135 to 168 months' incarceration)...." (Id. at 3.)
Petitioner pled guilty on March 6, 2008. During the plea allocution, Petitioner confirmed his understanding that in the Plea Agreement, he "agreed not to file a direct appeal or to litigate post-judgment any sentence that is within the stipulated guideline range of 135 months to 168 months of incarceration." (Transcript of March 6, 2008 Plea Hearing ("Plea. Tr.") at 13.)*fn1
At sentencing, the Court sentenced the Petitioner to 135 months, the bottom of the Stipulated Guidelines Range.
Petitioner argues that his attorney was ineffective because he failed to:
a) argue for relief from the mandatory minimum sentence of 10 years and an adjustment to his guideline level pursuant to U.S.S.G. § 5C1.2;
b) argue against the firearm enhancement pursuant to U.S.S.G. § 2D1.1(b)(1);
c) argue for a downward adjustment for minimal or minor role in the offense pursuant to U.S.S.G. § 3B1.2;
d) argue that a mandatory minimum sentence violated the due process clause of the Constitution;
e) argue for a lower base offense level because a smaller amount of cocaine was ...