The opinion of the court was delivered by: Yohn, J.
Micah Solomon pleaded guilty to a nine count superceding information. At sentencing, the court sentenced Solomon to a total of ninety-five months' imprisonment to be followed by five years' supervised release. The court also ordered Solomon to pay $1,028,955.84 in restitution and a $900 special assessment, and the court entered a forfeiture money judgment against Solomon in the amount of $2,639,474.78. Defendant moves to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. The court will deny his motion in large part, but order supplemental briefing on the issues of restitution and forfeiture.
I. FACTS AND PROCEDURAL HISTORY
Solomon engaged in fraudulent purchases of real property and luxury automobiles. On January 8, 2007, Solomon pleaded guilty to a superceding information charging five counts of giving false statements on loan applications in violation of 18 U.S.C. § 1014 (counts I-V); two counts of mail fraud in violation of 18 U.S.C. § 1341 (counts VI-VII); one count of bank fraud in violation of 18 U.S.C. § 1344 (count VIII); and one count of aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1) (count IX).*fn1 Under the guilty plea agreement, Solomon waived several rights. Solomon "voluntarily and expressly waive[d] all rights to appeal or collaterally attack [his] conviction, sentence, or any other matter relating to [his] prosecution, whether such a right to appeal or collateral attack arises under . . . 28 U.S.C. § 2255 or any other provision of law." (Guilty Plea Agreement ¶ 8.) Additionally, Solomon agreed "not to contest forfeiture as set forth in the notice of forfeiture . . . ." (Id. ¶ 1.) Solomon also acknowledged in the agreement that he was "satisfied with the legal representation provided" by his attorney, (id. ¶ 9), and confirmed that his plea agreement did not contain "additional promises, agreements or understandings other than those set forth" in the plea agreement, (id. ¶ 10).
On January 8, 2007, the court held a guilty plea hearing to determine whether Solomon's decision to plead guilty was knowing and voluntary. The government summarized the plea agreement in open court, (Tr. Guilty Plea Hr'g 20:16-23:5), after which the court confirmed: (1) that Solomon agreed to the accuracy of the summary, (2) that Solomon understood that the written plea agreement, not the summary, constituted the actual plea agreement, (3) that Solomon read and understood the plea agreement, (4) that Solomon had time to discuss the agreement with his attorney and to decide to plead guilty under the agreement, and (5) that Solomon signed, understood, and agreed to the agreement, (id. 23:7-25:5). Next, the government summarized the essential elements of each charge, (id. 25:24-27:12), after which the court confirmed that Solomon knew and understood the elements of the charges he faced. (Id. 27:14-16). The court also explained to Solomon the many rights he was waiving by signing the agreement, including his collateral attack rights. (Id. 20:3-9.) Solomon confirmed that he wished to waive these rights. (Id. 20:11-15.) Finally, Solomon stated that no person forced or threatened him to plead guilty and that no person made promises to him in exchange for pleading guilty, other than those set forth in the written plea agreement. (Id. 25:6-12.) After conducting this colloquy, the court found Solomon competent to plead guilty and found that his plea was free and voluntary and not the result of any force or threats or any promises apart from those contained in the written plea agreement.*fn2 (Id. 33:13-16.)
On November 7, 2007, the court sentenced Solomon to ninety-five months' imprisonment, consisting of seventy-one months on counts I-VIII and twenty-four months on count IX to be served consecutively. The court also sentenced Solomon to serve five years of supervised release for counts I-V and VIII, three years of supervised release for counts VI-VII, and one year of supervised release for count IX, each to be served concurrently. In addition, the court ordered Solomon to pay $1,028,955.84 in restitution and a $900 special assessment. The court also entered a forfeiture money judgment against Solomon in the amount of $2,639,474.78. Defendant filed an appeal to the Third Circuit. The government filed a motion to enforce the defendant's appellate waiver and for summary affirmance. On March 19, 2008, the Third Circuit entered an order granting the government's motion. Defendant's petition for en banc rehearing was denied on July 14, 2008.
On September 11, 2008, Solomon filed a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b), which the court later permitted Solomon to re- characterize as a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. In his motion, Solomon raises three claims: (1) the court exceeded its statutory and constitutional authority by approving the forfeiture money judgment and entering an erroneous restitution order; (2) Solomon's appointed counsel was constitutionally ineffective; and (3) 28 U.S.C. § 1028A, the subject of count IX, is unconstitutionally vague. The parties have fully briefed the motion.
If a defendant, as part of a plea bargain, waives his right to appeal or collaterally attack a judgment, that waiver is "generally permissible" and will be upheld "if entered into knowingly and voluntarily," unless enforcing the waiver works "a miscarriage of justice." United States v. Khattak, 273 F.3d 557, 558 (3d Cir. 2001); see United States v. Mabry, 536 F.3d 231, 237 (3d Cir. 2008). Regarding whether enforcement of a waiver would work a miscarriage of justice, the Third Circuit, in Khattak, 273 F.3d at 563, and Mabry, 536 F.3d at 242-43, endorsed the First Circuit's approach in United States v. Teeter, 257 F.3d 14, 25-26 (1st Cir. 2001). The Teeter court recognized that: the term "miscarriage of justice" is more a concept than a constant. Nevertheless, some of the considerations come readily to mind: the clarity of the error, its gravity, its character (e.g., whether it concerns a fact issue, a sentencing guideline, or a statutory maximum), the impact of the error on the defendant, the impact of correcting the error on the government, and the extent to which the defendant acquiesced in the result. Other considerations doubtless will suggest themselves in specific cases.
A. Knowing and Voluntary Waiver
The court begins with the "threshold issue" of whether the waiver of collateral attack rights in Solomon's "plea agreement was knowing and voluntary." Mabry, 536 F.3d at 237. As I did during the guilty plea hearing, I find that Solomon knowingly and voluntarily entered into a plea agreement that included a provision waiving his right to collaterally attack his conviction and sentence using § 2255. The agreement provided that "the defendant voluntarily and expressly waives all rights to appeal or collaterally attack the defendant's conviction, sentence, or any other matter relating to this prosecution, whether such a right to appeal or collateral attack arises under . . . 28 U.S.C. § 2255, or any other provision of law." (Guilty Plea Agreement ¶ 8.) The court's colloquy with defendant confirms that his waiver of collateral attack rights was knowing and voluntary.*fn3
Based on the plain language of the guilty plea agreement and Solomon's own statements to the court, the court concludes that Solomon's plea was knowing and voluntary.*fn4
Accordingly, Solomon is barred from collaterally attacking his conviction unless enforcing his waiver would ...