The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
Before the Court is petitioner Kedren Broadus' Pro Se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody (Document No. 64). After careful consideration of petitioner's motion, the government's response thereto, and the entire record in the case, including notes of testimony of petitioner's guilty plea colloquy and sentence hearing, the Court will deny petitioner's motion for relief pursuant to 28 U.S.C. § 2255.
Petitioner was indicted on March 2, 2005 and charged with one count of possession with intent to distribute fifty (50) grams or more of cocaine base on or about February 10, 2005 in the Western District of Pennsylvania, in the form known as "crack," a Schedule 2 controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii). Petitioner faced the following statutory and mandatory maximum and minimum sentences: a term of imprisonment of not less than ten years to a maximum of life; a fine not to exceed $4 million; a term of supervised release of at least five years and a special assessment of $100, provided this was petitioner's first felony drug conviction. 21 U.S.C. § 84(b)(1)(A).
On October 25, 2005, petitioner pled guilty without a plea agreement following a thorough Rule 11 colloquy before this Court, and on February 10, 2006 (not February 23, 2006 as stated in petitioner's motion to vacate), petitioner was sentenced to a term of imprisonment of 120 months, at the low end of the applicable guideline ranges, to be followed by five years of supervised release.
The following are the facts as found by the Court, and recorded in the transcript of the suppression proceedings held on July 22, 2005. Document No. 39. Petitioner was arrested on February 10, 2005 when Police Officers Kavals and Pires initiated a traffic stop of the vehicle in which petitioner was a passenger. The vehicle had failed to stop at a posted stop sign. Upon confirmation of the expired registration of the vehicle, the officers approached the vehicle and Officer Kavals observed the petitioner place two clear plastic sandwich bags holding crack cocaine, into a red McDonald's french fry container. Shortly after Officers Kavals and Pires had stopped the vehicle, Sergeant Jason Snyder and Detectives Edward Fallert and Joseph Lewis arrived on the scene. Petitioner was asked to step out of the vehicle, at which time he was placed under arrest and handcuffed. Detective Lewis searched petitioner and found 1.716 grams of crack cocaine on his person along with two cellular phones and a black digital scale with 0.051 grams of crack cocaine residue. Sergeant Synder opened the McDonald's bag with the french fry container to reveal two bags containing crack cocaine, one with 27.6 grams and the other with 21.38 grams. An additional plastic bag in the McDonald's bag revealed 18.12 grams of powder cocaine. Petitioner was then transported to the Allegheny County Jail, where 25.4 grams of crack cocaine were found inside petitioner's right front jacket pocket.
Petitioner was arraigned on March 14, 2005, at which time the United States Magistrate granted the Government's request for detention due to the dodgy history of Broadus' past appearances at scheduled court hearings. (Transcript of Proceedings held on March 14, 2005, Document. No. 29, p. 32). Petitioner filed a motion for release from custody which this Court denied after conducting an independent de novo review of the Magistrate Judge's order, including a full evidentiary hearing and review of the transcript of proceedings. Petitioner filed a motion to suppress physical evidence retrieved from the vehicle and petitioner's person which this Court denied because the searches and seizures were constitutionally permissible (pursuant to the automobile exception and a search incident to arrest).
On October 25, 2005, petitioner changed his plea from not guilty to guilty (Document No. 48), and he was sentenced on February 10, 2006. He appealed to the United States Third Circuit Court of Appeals for the order denying his motion to suppress physical evidence, challenging the validity of the traffic stop and the legitimacy of the vehicle search. The Court of Appeals dismissed the appeal on petitioner's motion to withdraw the appeal. (Document. No. 65). There were no further appeals. On February 2, 2007, petitioner timely filed his section 2255 motion before this Court to vacate, set aside, or correct the 120-month sentence.
Petitioner's section 2255 motion argues that his counsel provided ineffective assistance because he failed to advise him of the 120-month statutory minimum under 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii); that this Court erred by ruling that it could not sentence him to a term below the guidelines range for cocaine base offenses based on the 100 to 1 crack to powder ratio built into the guidelines; that there was a miscalculation of his criminal history due to the state probation officer's failure to notify him of probation violations and hearings; and that the disparity between sentences for crack and powder cocaine is unconstitutional as it leads to longer sentences for crack offenses.
Petitioner raises the following four claims:
A. Ground one: Ineffective Assistance of Counsel
On October 19, 2005, the attorney for the defendant . . . sent a memorandum to the defendant convincing me it would be wise to accept the plea agreement and forgo my upcoming trial. He stated that "the defendant would probably be sentenced to no less than 5 years but not more than 9 years" . . . Also counsel recommended not to pursue the appeal of the suppression hearing citing it could affect the 2255 outcome. He told the judge he wanted to withdraw as counsel if the defendant decided to pursue the appeal. See Motion to Vacate, p. 3.
B. Ground two: The District Court Erred in Ruling That it Could not Impose a Sentence Below Guidelines Range for Offenses Involving Cocaine Base
The defendant argued during sentencing that he should get a sentence below the mandatory range. Judge Schwab specifically stated that he had to adhere to the guidelines and sentenced the defendant to 120 months, in effect the defendant argues that the Court treated the guidelines as mandatory, not advisory [sic] since I was sentenced the Third Circuit ruled, that post-Booker a sentencing court errs when it believes it has no discrection [sic] to consider the crack/powder differential incorporated in the Guidelines as advisory at step three of post-Booker sentencing factors. SeeMotion to Vacate, p. 5.
C. Ground three: Defendant Objects to the Criminal History Category of II
The defendant was arrested twice for summary vehicle violations, before the term of probation ended, however I reported to my probation officer upon being released in June 2004 and he never notified me of a violation and signed me off of probation eventually. Also defendant was never notified of any violation or present for hearings. Therefore two point addition should not be assesed [sic] because gov'ment [sic] didn't prove defendant was on probation and does not accurately reflect seriousness of defendant's criminal history. SeeMotion to Vacate, p. 7.
D. Defendant Argues the 120 Month Statutory Sentence Creates Unjustifiable Disparity Creating Longer Sentences for Crack Offenses
81.4% of people convicted for crack offenses are black whereas 30% sentenced for powder are black. The 100:1 ration requires a mandatory sentence of 120 months whereas the same offense involving powder cocaine could warrant less than 60 months. The codification of this disparity in the guidelines produces a cruel irony in light of the fact that one of the founding mandates of the guidlines [sic] noted in the sentencing reform act was to avoid unwarranted ...