The opinion of the court was delivered by: : (Judge Conner)
Presently before the court is defendant's pro se motion (Doc. 146) to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.*fn1 Defendant Cremne Branche ("Branche")*fn2 asserts multiple theories to support his motion to vacate. Specifically, Branche contends that: (1) his waiver of the right to appeal in his plea agreement was not entered knowingly and intelligently; (2) he received ineffective assistance of counsel in violation of his Sixth Amendment rights; and (3) the court committed sentencing errors.*fn3 For the reasons that follow, Branche's motion (Doc. 146) will be denied.
I. Statement of Facts & Procedural History
On April 13, 2005, a grand jury indicted Branch on three counts: (1) possession with intent to distribute cocaine base, see 21 U.S.C. § 841(a)(1); (2) possession of a firearm in furtherance of drug trafficking, see 18 U.S.C. § 924(c); and
(3) possession of a firearm by a felon, see 18 U.S.C. § 922(g). (Doc. 1). Branche pled not guilty to the indictment on May 17, 2005. (Doc. 17). A four-count superseding indictment was filed on August 17, 2005 (Doc. 38), followed by a five-count second superseding indictment on November 30, 2005. (Doc. 76). On February 24, 2006, a one-count information was filed charging Branch with possession with intent to distribute cocaine base, see 21 U.S.C. § 841(a)(1). (Doc. 109). Branche entered into a plea agreement, and on March 1, 2006 he pled guilty to the one-count information. (Doc. 115). As part of Branche's plea agreement, he waived his right to appeal. (See Doc. 110 ¶ 28).
The court sentenced Branche on July 12, 2006 to 210 months incarceration, fines and fees of $1,500, and three years of supervised release. (Doc. 131). Branche appealed his sentence to the Third Circuit Court of Appeals on July 24, 2006. (Doc. 133). The Third Circuit affirmed the judgment of conviction and sentence on December 31, 2008. See United States v. Branch, 304 Fed. Appx. 995 (3d Cir. 2008). A mandate issued on February 23, 2009, and on March 16, 2009 Branche filed a Petition for Writ of Certiorari. The Supreme Court denied the petition on April 20, 2009. On April 13, 2010, Branche timely filed the instant motion (Doc. 146) to vacate, set aside, or correct his sentence pursuant to28 U.S.C. § 2255. The motion has been fully briefed and is ripe for disposition.
Branche alleges that he waived his right to appeal in the plea agreement unknowingly and involuntarily, that he received ineffective assistance of counsel, and that the court committed sentencing errors in sentencing him as a career offender and not departing downward from the crack-to-powder cocaine sentencing ratio. (See Doc. 154). The government contends that Branche waived his right to appeal his sentence under the terms of his plea agreement. As this is a threshold issue, the court will first address whether Branche waived his right to proceed under 28 U.S.C. § 2255.
It is well-settled that "[c]riminal defendants may waive both constitutional and statutory rights, provided they do so voluntarily and with knowledge of the nature and consequences of the waiver." United States v. Mabry, 536 F.3d 231, 236 (3d Cir. 2008). The right to appeal-a statutorily created right, see 18 U.S.C. § 3742- is among those rights which may be waived. Mabry, 536 F.3d at 236 (citing Jones v. Barnes, 463 U.S. 745, 751 (1983); see also United States v. Khattak, 273 F.3d 557, 561 (3d Cir. 2001). Such waiver of rights is enforceable if entered knowingly and voluntarily and enforcement does not effect a miscarriage of justice. See Mabry, 536 F.3d at 237.
In the instant matter, Branche alleges that waiver of his appellate rights was involuntary and unknowing. Branche claims that his counsel was ineffective for "fail[ing] to explain the true meaning and consequences of the waivers," (Doc. 154, at 29), and that he was under the impression that if something "major" went wrong with his sentence, he could appeal. (Doc. 147 ¶ 5). The court must, therefore, specifically examine whether the waiver was knowing and voluntary, based upon what occurred and what Branche contends, and whether enforcement would cause a miscarriage of justice. Id.; see also United States v. Khattak, 273 F.3d 557, 563 (3d Cir. 2001) ("Waivers of appeal, if entered into knowingly and voluntarily, are valid, unless they work a miscarriage of justice.").
The record is replete with evidence contradictory to Branche's claims that the appeal waiver was involuntary and unknowing, including Branche's own statements. The court first turns to the written guilty plea agreement. See United States v. Gwinnett, 483 F.3d 200, 203-04 (3d Cir. 2007) (examining written plea agreement). Paragraph thirty six of Branche's guilty plea agreement states:
Appeal Waiver. The defendant is aware that Title 18, United States Code, Section 3742 affords a defendant the right to appeal the conviction and sentence imposed. Acknowledging all of this, the defendant knowingly waives the right to appeal any conviction and sentence, including a sentence imposed within the statutory maximum, on any and all grounds set forth in Title 18, United States Code, Section 3742 or any other grounds, constitutional or non-constitutional, including the manner in which that sentence was determined in light of United States v. Booker, 125 S. Ct. 738 (2005). The defendant also waives his right to challenge any conviction or sentence or the manner in which the sentence was determined in any collateral proceeding, including but not limited to a motion brought under Title 28, United States Code, Section 2255. The defendant further acknowledges that this appeal waiver is binding only upon the defendant, and that the United States retains its right to appeal in this case.
(Doc. 110 ¶ 36). The language of the written plea agreement is straightforward. The waiver agreement, broad in scope, clearly indicates that Branche waived his right to appeal any conviction and sentence on any grounds, constitutional or statutory. Indeed, the plea agreement expressly delineates Branche's waiver of the right to challenge his conviction in a collateral proceeding, includingthrough "a motion brought under Title 28, United States Code, Section 2255" (Doc. 110 ¶ 36), the very motion Branche brings before the court in the instant matter. Additionally, Branche signed the agreement indicating that he fully understood it and voluntarily agreed to it.
The court next turns to Branche's change of plea hearing. During the hearing, the court addressed in detail with Branche the provisions of paragraph thirty six of the plea agreement to ascertain his understanding of the provision. (See Doc. 157, at 16-17). The court explained to Branche that "this plea agreement severely limits your right to appeal and prevents you from using later proceedings like a collateral attack and habeas corpus to challenge your conviction, sentence, or any other matter." (Id. at 16). The court then directed Branche to refer to Paragraph thirty six of the plea agreement before indicating whether he understood the ...