The opinion of the court was delivered by: A. Richard Caputo United States District Judge
Presently before the Court is Petitioner Phitsamy Senesouck's Petition Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (Doc. 90.) For the reasons stated below, Petitioner's petition will be dismissed.A certificate of appealability pursuant to 28 U.S.C. § 2253(c)(2) will not be issued.
Petitioner is a legal resident alien. On April 30, 2002, a federal grand jury returned an indictment charging Petitioner with two (2) counts alleging that he distributed cocaine in violation of 21 U.S.C. § 841(a)(1). On May 30, 2002, Petitioner was arraigned before United States Magistrate Judge Thomas M. Blewitt and entered a plea of not guilty. Following his arraignment, on April 1, 2003, Petitioner pled guilty to the indictment, admitting that he distributed cocaine on November 27, 2001 and January 24, 2002.
A pre-sentence report was completed by the United States Probation Office. Therein, Petitioner was found responsible for distributing between four hundred grams (400g) and five hundred grams (500g) of cocaine in relation to the instant offenses, and that he had at least two (2) prior felony drug convictions. Specifically, Petitioner had been convicted of possession of cocaine with intent to deliver in 1993 and then again in 1996. The pre-sentence report concluded that Petitioner qualified as a "career offender" under United States Sentencing Guideline ("U.S.S.G.") § 4B1.1. Petitioner was assigned an aggregate offense level of twenty-nine (29), and a criminal history category of VI. This resulted in a guideline range of one hundred fifty-one (151) to one hundred eighty-eight (188) months in prison.
On July 7, 2003, Petitioner filed a motion for a downward departure from the guidelines pursuant to U.S.S.G. §§ 4A1.3 and 5K2.0. Petitioner claimed that he was entitled to a downward departure because his criminal history category VI "significantly over-represent[ed] the seriousness of his prior criminal record," and because of "the challenge of assimilation into a new culture." Petitioner also asserted that he was entitled to a downward departure because, as a deportable alien, his actual sentence would be lengthened because of the inevitable incarceration that results from awaiting deportation.
On January 15, 2004, the Court conducted Petitioner's sentencing hearing. At the hearing, Petitioner formally withdrew his motion based on assimilation grounds. The Court, in its discretion, denied Petitioner's remaining motions for downward departure. The Court sentenced Petitioner to one hundred fifty-one (151) months. Petitioner timely appealed. In October of 2004, Petitioner's appeal was dismissed by the United States Court of Appeals for the Third Circuit for lack of appellate jurisdiction.
On June 14, 2005, Petitioner filed the instant section 2255 petition. Petitioner appended a memorandum of law to his petition. This petition is now ripe for disposition.
I. Habeas Relief Under 28 U.S.C. § 2255
Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts instructs that if "it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion." In such instances, an evidentiary hearing is not required. Government of Virgin Islands v. Nicholas, 759 F.2d 1073, 1075 (3d Cir. 1985).
"Habeas relief pursuant to § 2255 is available to 'prisoner[s] in custody under sentence of a court established by Act of Congress' when (1) the sentence was imposed in violation of the Constitution or the laws of the United States, (2) the court did not have jurisdiction to impose the sentence, (3) the sentence was greater than the maximum authorized by law, or (4) the sentence is otherwise subject to collateral attack." United States v. Colon, No. CRIM. 102-0261-04, 2005 WL 1138391, at *2 (M.D. Pa. Apr. 25, 2005) (Rambo, J.) (citing 28 U.S.C. § 2255). ...