The opinion of the court was delivered by: Ausa Hurley, Senior District Judge.
Petitioner Edwin J. Papetti, Jr. ("petitioner" or "Papetti") moves pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence arising from a 2008 conviction in this Court. For the reasons set forth below, the motion isdenied.
Petitioner was the owner and operator of DVD World Picture Corporation ("DVD World"), an online vendor that sold, inter alia, DVDs, music, and computer games. On March 27, 2008, pursuant to a written plea agreement, petitioner pled guilty to an information charging him with knowingly and intentionally using and possessing with intent to use forged and counterfeited postage meter stamps in violation of 18 U.S.C. § 501.
The written plea agreement set forth, inter alia, that the count charged in the information carried a maximum term of imprisonment of five years, no minimum term of imprisonment, a maximum fine of $250,000 or twice the value of the gross gain or loss, whichever is greater, and restitution to be determined by the court. (Plea Agreement at 1-2.) It further advised that the United States Sentencing Guidelines were not mandatory but advisory and that the government estimated that the likely adjusted offense level for Petitioner was 17, calculated as follows:
Base Offense Level (2B5.1(a)) 9 Plus: Loss more that $70,000 (2B5.1(b)(1)(B) and (2B1.1(b)(1)(E)) Plus: Custody or Control over a Counterfeiting Devise or Materials (2B5.1(b)(2)(A)) Less: Acceptance of Responsibility (3E1.1(a)) -2 17 (Plea Agreement at 2-3.) Assuming no prior convictions, the plea agreement advised that this level carried a range of imprisonment of 25 to 30 months. (Id.) Further, if Petitioner pled guilty before March 28, 2008, the government would move for an additional one point reduction, resulting in an offense level of 16 and carrying a range of imprisonment of 21-27 months, assuming no prior convictions. (Id.) The plea agreement further advised that the estimate was not binding, inter alia, on the Court and "if the Guideline calculation of the Court is different from the Guideline estimate set forth [above], [Petitioner] would not be entitled to withdraw the guilty plea." (Id.)
Under the plea agreement, Petitioner waived his right to "appeal or otherwise challenge, by petition pursuant to 28 U.S.C. § 2255 or any other provision, the conviction or sentence in the event that the Court imposes a term of imprisonment of 30 months or below." (Plea Agreement at 3.)
Petitioner pled guilty before Magistrate Judge A. Kathleen Tomlinson. Prior to accepting the plea, Judge Tomlinson advised Petitioner, inter alia, that he had the right to plead not guilty and that by pleading guilty there will be "no right to appeal or collaterally attack at any time or question whether you are guilty or not." Mar. 27, 2008 Tr. at 8. Petitioner was further advised that under the plea agreement he was waiving his right to appeal or otherwise challenge his conviction of sentence if the term of imprisonment were 30 months or below and Petitioner stated that he understood that waiver. (Id. at 10-11.). Also, the following colloquy took place:
The Court: [A]re you aware that the maximum term of imprisonment on this charge is five years incarceration?
The Court: And do you also understand that the minimum term of imprisonment here is zero?
The Defendant: Yes. . . .
The Court: Do you understand, as well, Mr. Papetti, that the Court may order restitution if it so directs?
The Court: And, sir, do you also realize that if any jail time is imposed, a period of three years of supervised release, must be imposed, as well?
The Court: Do you also understand that the maximum fine that may be imposed here is $250,000 or twice the value of the gross gain or loss, whichever is greater?
The Court. Now, Mr. Papetti, have you discussed the sentencing guidelines with your attorney?
The Court: And are you aware of the fact that based on certain recent Supreme Court decisions, the sentencing guidelines are ...