The opinion of the court was delivered by: Donetta W. Ambrose Chief Judge, U.S. District Court
OPINION AND ORDER OF COURT
In this action, a jury found Defendant guilty of conspiracy to distribute and possession with intent to distribute 100 kilograms or more of marijuana, in violation of 21 U.S.C. § 846. On April 7, 2006, he was sentenced to 121 months in prison. Before the Court is Defendant's Motion pursuant to 28 U.S.C. 2255, asserting that his counsel was ineffective for failing to properly deal with inaccurate information, possessed by the Court, regarding his alien status; and with the drug quantity attributed to him for sentencing.
For the following reasons, the previously scheduled hearing in this matter will be cancelled; Defendant's Motion will be denied; and no certificate of appealability shall issue.
At Defendant's sentencing hearing, the following colloquy occurred after Defendant was sworn:
COURT: Mr. Wilder, have you read the presentence report prepared by the United States Probation Office? And you can be seated, sir.
DEFENDANT: Yes, ma'am. Yes, sir.
DEFENDANT: Yes, Your Honor.
COURT: And did you review it with your attorney?
DEFENDANT: Yes, Your Honor.
COURT: And is there anything in that report that you believe is incorrect? Or anything that wasn't in the report that you think should have been in the report?
Subsequently, the Court expressly found that the facts set forth in the Pre-sentence Report ("PSR") were the final facts of the case. Those facts included evidence, proffered at trial, that a witness received from Defendant packages totaling, at the low end, 2,000 pounds of marijuana. The PSR also recounted that on March 12, 1999, an immigration judge ordered Defendant removed from the United States, and that a warrant for deportation was issued on October 6, 2000. This information, as stated in the PSR, was obtained from Defendant during a pre-sentence interview, and verified in part by immigration authorities.*fn1 The Government has presently submitted a copy of the deportation order and related papers.
Ultimately, the Court heard argument from defense counsel. In urging a five-year sentence for his client, counsel argued that Defendant would not be entitled to certain benefits -- such as rehabilitation or vocational training -- due to his alien status. The Court's reference to Defendant's immigration status, in this context, was made in response to defense counsel's argument. The Court rejected that argument, stating as follows:
COURT: Now, I listened carefully to Mr. Cohen talking about things that you will or will not be eligible for within the federal correctional system, but all of those things really are directly attributable to the fact that you are in this country illegally and that you certainly knew that. You knew that you had been convicted of a very serious crime, an aggravated felony, and that you re-entered the country after being ordered specifically that you were not allowed to do so.
In determining the appropriate sentence, the Court also expressly considereddeterrence, protection of the public, ...