The opinion of the court was delivered by: Denise Cote, District Judge:
Jose Reyes Sanchez has filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2255. Sanchez pleaded guilty to narcotics charges in 2009, and did not appeal his sentence. While Sanchez does not seek to withdraw his plea, he does seek a resentencing and has offered materials in support of a reduced sentence. For the following reasons, the petition is denied.
Sanchez was arrested on September 4, 2008, pursuant to a complaint which charged him along with two co-defendants with a narcotics conspiracy in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846. One of the co-defendants was Aurelio Berber Magana ("Berber"). On September 17, Sanchez was indicted with five others for conspiring to distribute a kilogram or more of heroin for a four month period in 2008. On February 25, 2009, the defendants were named in a superceding indictment, which added a charge that Sanchez and Berber conspired to launder money in violation of 18 U.S.C. § 1956(h). On September 24, 2008, trial had been scheduled for June 1, 2009.
The Government's evidence against Sanchez included the following. Berber received heroin from Mexico and distributed it in New Jersey and elsewhere. Sanchez helped process the drugs and deliver the heroin to Berber's customers. Among hundreds of recorded conversations, were conversations in which Sanchez discussed the heroin distribution enterprise. A seized drug ledger reflected distribution of multi-kilogram quantities of heroin. Sanchez also helped Berber deliver the proceeds of the narcotics transactions to Mexican suppliers by wire transfers. Sanchez delivered the cash to the businesses that wired the money to Mexico and he provided false names for the wire transfers.
In March 2009, or approximately six months following his arrest, Sanchez began his effort to cooperate with the Government. On May 1, Sanchez entered a plea of guilty pursuant to a cooperation agreement with the Government. During his allocution, Sanchez explained that he had worked with others in 2008 to distribute over one kilogram of heroin and to launder money. In connection with the money laundering activities, Sanchez explained that he concealed the narcotics proceeds in his apartment and then sent it to Mexico by Western Union wire transfers by making numerous small transfers and using false names for the transfers.
The Pre-Sentence Report ("PSR") calculated Sanchez's sentencing guidelines range as 108 to 135 months' imprisonment, and recommended a 60 month sentence in light of the defendant's cooperation. Sanchez was sentenced on March 12, 2010, at which time the Government moved for a departure pursuant to U.S.S.G. § 5K1.1 for Sanchez's substantial assistance. The Court sentenced Sanchez principally to 54 months' imprisonment. Sanchez was advised of his right to appeal, but did not file any appeal.
Sanchez filed this timely petition on July 8, 2010, asserting essentially three grounds for relief. He first asserts that his attorney pressured him to plead guilty to the money laundering charge when he had not engaged in money laundering, failed to advise him properly of his rights and the consequences of a plea of guilty, and failed to obtain for him sufficient benefit from his cooperation. Sanchez also contends that the Court erred at sentence by treating the sentencing guidelines as mandatory, by failing to consider his status as a deportable alien, and by failing to give him sufficient credit for his cooperation. Finally, he excuses his failure to file an appeal by asserting essentially, but erroneously, that his plea agreement with the Government contained a waiver of his right to appeal.
This petition was largely written by a person who did not understand the critical facts surrounding Sanchez's plea and sentence. As a consequence, there are references to legal issues that have little or no connection to Sanchez's prosecution and there is very little factual development to support the petition's claims. With this background, Sanchez's claims are addressed below.
I. Representation by Counsel The petition's complaints about the quality of Sanchez's representation at the time of his plea can be swiftly rejected. A guilty plea may be withdrawn only if "the defendant can show a fair and just reason for requesting the withdrawal." Fed. R. Crim. P. 11(d)(2)(B). A court may "rely on defendant's in-court sworn statements that he understood the consequences of his plea, had discussed the plea with his attorney, and knew that he could not withdraw the plea." United States v. Carreto, 583 F.3d 152, 157 (2d Cir. 2009) (citation omitted). "Where a motion to withdraw a plea is premised on involuntariness, the defendant must raise a significant question about the voluntariness of the original plea. A defendant's bald statements that simply contradict what he said at his plea allocation are not sufficient grounds to withdraw the guilty plea." United States v. Doe, 537 F.3d 204, 211 (2d Cir. 2008) (citation omitted).
The defendant's plea allocution undermines the assertions regarding his plea that Sanchez now makes against his appointed counsel. Sanchez was under oath during his plea allocution and warned that he could be prosecuted for perjury if he testified falsely. During the allocution, Sanchez asserted that he had had a sufficient opportunity to discuss his case with his attorney, including any defenses to the charges and the consequences of entering a plea. He told the Court that he was satisfied with his attorney's representation. He was carefully advised of each of his constitutional and legal rights, as required by Rule 11, Fed. R. Crim. P. He was advised of the elements of each of the charges against him and the penalties for those charges. He admitted that he had discussed the issues concerning sentencing with his attorney. He denied that anyone had threatened him or forced him "in any way" to plead guilty. When he identified the cooperation agreement he had executed with the Government, he acknowledged understanding that it was up to the Court alone to decide what credit to give him for his cooperation in the event the Government wrote a 5K1.1 letter acknowledging his substantial assistance. He admitted that no one had promised him what sentence he would receive.
The allocution also showed there was "a factual basis for the plea." Fed. R. Crim. P. 11(f). When asked to describe in his own words what he had done to make him believe he was guilty, he confessed that he had distributed heroin and laundered money in 2008. As for the money laundering, he explained that he kept the drug money in his apartment and sent it to Mexico by Western Union, hiding it in "minimal quantities of wire transfers."*fn1 He admitted that he was hoping to make money from doing all of this, and knew he was doing something wrong and violating the law.
Thus, the record at the time of the plea undermines any claim that Sanchez's counsel was inadequate in any way that affected his decision to plead guilty. Without a more detailed and specific allegation explaining in precisely what way his attorney failed him, the plea allocution establishes that his plea was knowing and voluntary. It should be noted as well, that Sanchez does not actually seek to revoke his plea ...