Defendant, Albert Castro, has filed a pro se motion under 28 U.S.C. § 2255 challenging his conviction and sentence. He makes the following claims. First, his guilty plea was not knowing and intelligent because his lawyer led him to believe that he was not pleading guilty to a drug offense of any kind. Second, his lawyer was ineffective in not moving to dismiss the 18 U.S.C. § 924(c) charge as Defendant did not meet all the elements of that offense. Third, counsel refused to take an appeal. Fourth, the government violated the terms of Defendant's proffer agreement by allowing the probation office to use admissions he made at his guilty-plea hearing and proffer interview to increase his sentence.
On December 15, 2008, a hearing was held on the motion, where Defendant was represented by counsel.
On April 12, 2007, Defendant executed a written plea agreement, agreeing to plead guilty to counts I, XIV, and XVI of the second superseding indictment.*fn1 Count I of that indictment charged him with a violation of 18 U.S.C. § 922(a)(6), making false written statements to obtain firearms in that he falsely represented that he was the true purchaser of the firearms when he was actually purchasing them for someone else. Count XIV charged him with a violation of 18 U.S.C. § 924(c), possessing numerous firearms in relation to a drug-trafficking crime for which he may be prosecuted in a court of the United States, namely, possession with intent to distribute crack cocaine. Count XVI charged him with a violation of 18 U.S.C. § 922(a)(5), transferring a firearm to a person out of state.
These offenses were described in paragraph 1 of the plea agreement, with count XIV being described as charging Defendant with "possessing firearms in furtherance of drug trafficking." (Doc. 75 ¶ 1). The plea agreement also described the maximum sentence for each offense, ten years for count I, life imprisonment for count XIV, and ten years for count XVI, (id.), for a total sentence of life plus twenty years. (Id., ¶ 4).
Defendant acknowledged that the court was not a party to the agreement and was not bound by any recommendation that he or the government might make concerning the sentence to be imposed. (Id., ¶ 21). "Thus, the Court [was] free to impose upon the defendant any sentence up to and including the maximum sentence of imprisonment for life . . . ." (Id.). Furthermore, Defendant agreed that he could not withdraw his guilty plea if he was dissatisfied with the court's sentence or if it declined to follow any of the parties' recommendations as to sentencing. (Id., ¶ 22).
The plea agreement also provided the following. The government would move for a three-level reduction in Defendant's offense level if Defendant adequately demonstrated acceptance of responsibility. (¶ 11). Defendant would cooperate, and the government would move for a downward departure under U.S.S.G. § 5K1.1 if he provided substantial assistance. (¶ 13). The government would not use against Defendant self-incriminating information he provided while he was cooperating "in determining the applicable guideline range except to the extent provided in this agreement." (¶ 14). The government would not use "any statements made by the defendant during the cooperation phase of this agreement . . . against the defendant in any subsequent prosecutions unless and until there is a determination by the Court that the defendant has breached this agreement. However, the United States will be free to use at sentencing in this case any of the statements and evidence provided by the defendant during the cooperation phase of the agreement." (¶ 20).
The defendant signed the agreement under a paragraph stating: "I have read this agreement and carefully reviewed every part of it with my attorney. I fully understand it and I voluntarily agree to it." His attorney also signed it under a paragraph stating: "I am the defendant's counsel. I have carefully reviewed every part of this agreement with the defendant. To my knowledge my client's decision to enter into this agreement is an informed and voluntary one."
In May 2007, a change-of-plea hearing was held. The prosecutor noted that Defendant had agreed to plead guilty to counts I, XIV, and XVI of the second superseding indictment. (Doc. 143, transcript of change-of-plea hearing, pp. 2-3).*fn2 She described the count XIV offense as "possessing firearms in furtherance of drug trafficking." (Id., p. 3). She also mentioned the maximum terms of imprisonment for each offense and that count XIV had a minimum term of five years. (Id., pp. 2-3).
The prosecutor also estimated that Defendant's guideline range would be "somewhere around nine years." (Id., p. 3). In connection with Defendant's sentence, the court advised him:
You heard [the prosecutor] recite the maximum penalties for each of the three offenses. Your sentence will be determined following the preparation of a pre-sentence report when the court will be aware of all the facts that go into determining the appropriate sentence. It's the government's estimation at this time that you could be facing a sentence in the range of nine years, but there's no assurance of that at this point. Do you understand that, Sir? (Id., pp. 6-7). Defendant replied, "Yes." (Id., p.7 ).
The prosecutor outlined the government's case that would have been presented at trial. In regard to count XIV, she stated that "the defendant possessed firearms while he was distributing crack cocaine and in furtherance of this distribution of crack cocaine." (Id., p. 8). The court asked ...