The opinion of the court was delivered by: Joy Flowers Conti United States District Judge
Pending before the court is a motion to vacate or set aside judgment of conviction by a person in federal custody pursuant to 28 U.S.C. § 2255 ("motion to vacate") (Criminal No. 03-151, Docket No. 249; Criminal No. 05-42, Docket No. 73) filed by defendant Mark Hopson ("defendant" or "Hopson"). Upon reviewing defendant‟s motion and reply (Crim. No. 03-151, Docket No. 254; Crim. No. 05-42, Docket No. 78), and the government‟s opposition to defendant‟s motion to vacate pursuant to 28 U.S.C. § 2255 (Crim. No. 03-151, Docket No. 253; Crim. No. 05-42, Docket No. 77), the court will DENY petitioner‟s motion for the reasons set forth herein.
On May 19, 2003, a federal grand jury returned an indictment charging petitioner with seven counts of criminal acts, based upon conduct occurring between 1998 and 2002. (Docket No. 1.) The charges stemmed from Hopson‟s dealing in crack cocaine during that period. In count one, Hopson was charged with conspiracy to distribute and conspiracy to possess with intent to distribute 50 or more grams of crack cocaine from 1998 through 2002, in violation of 21 U.S.C. § 846. In counts two through six, defendant was charged (along with his mother, co-defendant Sarah Hopson) with conducting transactions with the proceeds of the illegal drug trafficking. Specifically, count two charged a violation of 18 U.S.C. § 1956(h) (money laundering conspiracy), involving a $16,000 down payment on a 2001 GMC Yukon Denali motor vehicle, a $12,000 child support payment to the Mercer County Court of Common Pleas, and various purchases of household goods in an amount in excess of $100,000. Count three charged a violation of 18 U.S.C. § 1956(a)(1)(B)(i) and 18 U.S.C. § 2 regarding the payment of $12,000 in child support, and count four charged a violation of 18 U.S.C. § 1957(a) regarding that payment. Count five charged a violation of 18 U.S.C. § 1956(a)(1)(B)(i) regarding the purchase of the GMC Yukon Denali motor vehicle. Count six charged violations of both 18 U.S.C. § 1957(a) and 18 U.S.C. § 2 regarding the down payment of $16,000 toward the purchase of the vehicle. In count seven, defendant was charged with a violation of 18 U.S.C. § 922(g)(1) for possessing a firearm while having previously been convicted of a crime punishable by imprisonment for a term exceeding one year.
A jury trial on those charges was set for April 2005. Prior to the scheduled trial on October 5, 2004, the government filed a notice of information pursuant to 21 U.S.C. § 851 noting two prior drug felony offenses for which Hopson had been convicted. (Docket No. 106.) On February 7, 2005, the government filed a complaint against Hopson charging him with a violation of 18 U.S.C. § 1512(a)(2)(B)(i), for tampering with a witness for the upcoming trial by the use of physical force. (Crim. No. 05-42, Docket No. 1.) A grand jury indicted Hopson on this charge on March 1, 2005. (Crim. No. 05-42, Docket No. 12.) The government petitioned for an arrest warrant for Hopson at Criminal No. 03-151, and it was issued. Hopson‟s bond was subsequently revoked. (Docket No. 112.)
On the eve of trial on April 8, 2005, the parties reached a plea agreement, and Hopson changed his plea from not guilty to guilty as to counts one and two of the indictment at Criminal No. 03-151. (Docket Nos. 138 and 139.) As part of the agreement, the government agreed to dismiss the other charges at Criminal No. 03-151 and filed an amended information charging Hopson with only one prior drug felony conviction, as opposed to two. (Docket No. 137.) The court ordered that a presentence investigation report be prepared. (Crim. No. 03-151, Docket No. 140.) The court issued its Tentative Findings and Rulings Concerning Disputed Facts or Factors on March 8, 2006, noting Hopson was a career offender by reason of his two prior felony convictions. (Crim. No. 03-151, Docket No. 176.)
Defendant responded to a number of questions asked by the court during the April 8, 2005 hearing for defendant‟s change of plea at Criminal No. 03-151. Defendant under oath stated that he was thirty-four years old, had graduated from high school and received his diploma and had no problems communicating in English, or with his counsel, Vandy Jamison, Jr. ("Jamison") (Crim. No. 03-151, Docket No. 147 at 2-3.) Defendant testified that he did not ingest any drugs, medication or alcohol in the twenty-four hours prior to his plea hearing. (Id. at 3.) Defendant confirmed at his plea hearing that he had not "recently been under the care of a physician or a psychiatrist." (Id.) Prior to his plea hearing, defendant had not recently been hospitalized or treated for narcotic addiction. (Id.) Defendant stated that he understood what was happening in the courtroom and the court found him competent to plead. (Id. at 3-4.)
During the hearing defendant acknowledged that he was a drug dealer and a money launderer. (Id. at 9-10.) Defendant stated he discussed with his counsel his intention to plead guilty to certain of the charges that he was facing and how the U.S. SENTENCING GUIDELINES MANUAL (the "Guidelines" or "Sentencing Guidelines") might apply in his case. (Id.) Defendant acknowledged that if his counsel miscalculated or misunderstood defendant‟s potential Sentencing Guidelines range, that mistake "would not be grounds for [defendant] to be able to withdraw [his] plea; [defendant] would still be bound by [his] guilty plea and would have no right to withdraw it." (Id. at 11.) The court asked defendant if he understood "that if the sentence imposed is more severe than you expected, you will still be bound by your plea and will have no right to withdraw it?" (Id.) The defendant answered, "Yes." (Id.)
The counsel for the government reviewed the terms of the plea agreement in front of the court and defendant. (Id. at 17-23.) Paragraph A-2 of the plea agreement provided that defendant will plead guilty to counts one and two of the indictment at Criminal No. 03-151, and that "he acknowledges his responsibility for the conduct charged in Counts 3, 4, 5, 6 and 7 of the indictment" at Criminal No. 03-151. Counsel made clear on the record, however, that defendant reserved the right to challenge the calculation of the applicable advisory guideline range based upon conduct underlying the charges in counts three though seven:
[MR. RIVETTI:] And I spoke about [paragraph A-2] with Mr. Jamison as we were getting ready for today‟s proceeding, and he wanted me to put on the record, to emphasize that it says that it may be considered by the Probation Office and the Court. It does not require that the conduct at those counts be relevant conduct. It‟s just a possibility, and that will be a determination that‟s ruled upon at sentencing.
MR. JAMISON: Your Honor, that comports with my understanding regarding my earlier conversation with Mr. Rivetti. The point to be made at that juncture is that we are not acknowledging possession of a weapon that‟s mentioned in Count No. 7 or any of the other relevant conduct. Mr. Rivetti‟s recitation of our earlier understanding should control in terms of paragraph A-2.
THE COURT: So this may be considered by the probation officer; and whether it is or it isn‟t, if there‟s an issue about that, that will be brought to the Court‟s attention at the time of sentencing for a determination by the Court.
MR. JAMISON: That is correct, Your Honor.
MR. RIVETTI: Exactly, Your Honor. For example, Count 7 is the felon in possession of a firearm charge. The Defendant is not pleading guilty to that charge today. During the factual recitation, the Government will put on the record that there was a firearm seized on August 30, 2002, during a search warrant; and I don‟t think they‟re disputing the fact that a firearm was seized. They‟re not agreeing he possessed it and is criminally culpable.
MR. JAMISON: That is correct, Your Honor.
THE COURT: Thank you. (Id. at 18-20.)
The government noted that under the plea agreement, defendant waived his right to appeal his conviction and to attack collaterally his sentence, subject to limited exceptions; specifically the government stated that: "Mr. Hopson also waives the right to file a motion to vacate his sentence under 28 U.S.C. § 2255 attacking his conviction or sentence and the right to file any other kind of collateral attack on his conviction or sentence." (Id. at 20-21.) Defendant stated that he understood that the related case at Criminal No. 05-42, if it was consolidated for sentencing purposes under the Guidelines with Criminal No. 03-151, would not affect his guideline sentence:
[MR. RIVETTI]: But in any event, I have discussed with Mr. Jamison the possible effect that that other case could have on his sentence here before this Court. And Mr. Jamison has indicated to me he would intend to continue the sentence on this matter until that related case is resolved as well.
Mr. Hopson is going to be held in custody, and that would be fine from the Government‟s -- for the sentencing to be continued so that they could be consolidated perhaps for sentencing.
But in any event, if that related case were to be consolidated with this case for sentencing purposes, under the guidelines, the offense level for the drug count that Mr. Hopson is pleading guilty today is more than nine levels higher than the offense level for the witness tampering count, and so the witness tampering count, were he to be convicted or plead, would not have an effect on the sentencing. That‟s if they were consolidated.
And so that‟s what we discussed.
MR. JAMISON: That comports with my understanding of the conversation, Your Honor.
MR. RIVETTI: Mr. Jamison will need to discuss with counsel on the other matter, but I do think it‟s still important for the Defendant to acknowledge the plea letter as explained, and this other discussion, that he understands those, and this is the complete agreement.
Now, Mr. Jamison, do you agree that the terms of the plea agreement have been correctly stated?
THE COURT: Okay. Mr. Hopson, have you heard the terms of the plea agreement as reviewed to you by Mr. Rivetti?
THE COURT: And you‟ve heard the other discussion on the record in terms of the other criminal proceeding against you and how it may affect your sentencing in this case and the other matters that were discussed by Mr. Rivetti and Mr. Jamison.
THE COURT: Do you understand the matters that they were discussing?
THE COURT: And do you understand how the other matter might affect your sentence in this case or your sentence in this case might affect the other criminal case that is pending against you?
THE DEFENDANT: Yes. (Id. at 24-27.)
The attorneys for the government, defendant, and defendant‟s counsel each initialed changes to the plea agreement relating to the maximum penalties. (Id. at 22-23.) Defendant and his counsel told the court at the hearing that the government correctly stated the terms of the agreement and the discussions and understandings between counsel. (Id. at 23, 26-27.) The last page of the plea agreement, above Hopson‟s signature, reads:
I have received this letter from my attorney, Vandy Jamison, Jr., Esquire, have read it and discussed it with him, and I hereby accept it and acknowledge that it fully sets forth my agreement with the Office of the United States Attorney for the Western District of Pennsylvania. I affirm that there have been no additional promises or representations made to me by any agents or officials of the United States in connection with this matter. (Crim. No. 03-151, Docket No. 138, Gov‟t Ex. 1 at 5.)
On June 13, 2006, Hopson, represented by Mr. R. Damien Schorr ("Schorr"), changed his plea at Criminal No. 05-42 from not guilty to guilty. Hopson did not enter a plea agreement with respect to Criminal No. 05-42. (Tr. of 6/13/2006 Hr‟g at 18.) Defendant understood the maximum penalties for the offense at Criminal No. 05-42 and that his sentence might be more severe than he expected:
THE COURT: Do you understand that if the sentence imposed is more severe, meaning more time is part of the sentence or the other conditions are more severe than you expected, you will still be bound by your guilty plea and will have no right to withdraw it?
THE COURT: Do you understand that the maximum penalty to Count One is a term of not more than 20 years imprisonment, a term of supervised release of not more than three years and a ...