The opinion of the court was delivered by: Padova, J.
Defendant Giacamo Randazzo has filed a Motion to Vacate Sentence pursuant to 28 U.S.C. § 2255, in which he asks that we vacate his December 2007 sentence and restructure the sentence in a way that will not result in his mandatory deportation as an aggravated felon. The Government argues that Randazzo's Motion should be denied because he waived his right to collaterally challenge his conviction and sentence, his Motion is untimely, and/or the claims are meritless. We held an evidentiary hearing on March 29, 2011, and April 7, 2011, after which the parties submitted proposed findings of fact and conclusions of law. For the following reasons, we deny now Randazzo's Motion.
Randazzo was charged in a six-count Indictment with one count of conspiracy to commit interstate transportation of stolen property in violation of 18 U.S.C. § 371, and five counts of receipt and possession of a stolen motor vehicle in violation of 18 U.S.C. § 2314. The charges arose out of Randazzo's participation in a conspiracy which lasted from November 1998 to September 2004, and involved the theft and transport of at least twenty pieces of heavy equipment, motor vehicles and/or trailers from businesses in Pennsylvania, New Jersey and Maryland.
On February 26, 2007, Randazzo entered a guilty plea to all six counts of the Indictment. In his Guilty Plea Agreement, Randazzo agreed that, with limited exceptions, he would neither appeal nor collaterally challenge his conviction or sentence. (Plea Agrmt. ¶ 10)
We held a change of plea hearing on February 26, 2007. At that hearing, we questioned Randazzo regarding his willingness to enter into, and understanding of, the Guilty Plea Agreement, and found that he was competent to plead, that his guilty plea was voluntary, and that there was a factual basis for the guilty plea. (N.T. 2/26/07 at 20-21.) Before the entry of the plea, the Assistant United States Attorney also asked that we "point out that there is a possible collateral consequence here regarding [Randazzo's] immigration status, deportation, which is something that is unrelated to what the Government's charged here, but it is a possible consequence that he could suffer from entering a plea." (Id. at 18-19). In response to that request, we advised Randazzo that "[t]here is a possible consequence that would or could affect your immigration status here in this country, that would follow from a conviction or from a guilty plea in this case." (Id. at 19.) We then asked Randazzo if he understood that instruction, and Randazzo responded "yes." (Id.)
We sentenced Randazzo on November 27, 2007. Prior to the sentencing hearing, Randazzo obtained new defense counsel, and the new counsel represented him at sentencing. As set forth in the Presentence Report, Randazzo had a total offense level of 22 and a Criminal History Category of I, which gave rise to an Advisory Guideline Range of 41-51 months.*fn1 Defense counsel stated the following on the record regarding the prospect of deportation:
I first and foremost like to state that my client, regardless of whatever sentence your Honor imposes, will suffer in ways that are not contemplated by individuals who commit crimes, not contemplated by the guidelines, and although they may be called collateral or administrative penalties, they are nevertheless penalties that will be suffered by my client. And the first and most important, I think, is the fact that he more likely, almost definitely will be deported as a result of his guilty plea, and the sentence that your Honor imposes and he will thereby lose the affections, and daily support, and contact with, and physical contact with all of the people in this room. (N.T. 11/27/07 at 76.) We asked the Government to comment, and the Government stated:
He's a legal permanent resident. He's been in the country for -- over 20 years.*fn2 It is questionable whether he will be deported or not. That is certainly not within [the purview of] the Department of Justice, it is with the immigration authorities but there is some question I understand. So but that's not something that we take part in. And it's not automatic, I would say to the Court from what I have learned. (Id. at 80-81 (footnote added).)
Although Randazzo's counsel asked that we vary downward and impose a below-Guidelines sentence, we imposed a sentence of 41 months' imprisonment on each of the six Counts of the Indictment, to be served concurrently. The judgment was entered on December 4, 2007. Defendant did not appeal his conviction and sentence, and the judgment became final on December 18, 2007. More than three years later, on January 27, 2011, when he was nearing the end of his federal sentence, Defendant filed the instant Motion to Vacate Sentence pursuant to 28 U.S.C. § 2255. Approximately one month later, on March 1, 2011, Randazzo's federal sentence expired. Randazzo was transferred to the custody of Immigration and Customs Enforcement ("ICE"), based on a Notice to Appear, which asserted that he was subject to mandatory deportation, because he qualified as an aggravated felon. To date, Randazzo remains in ICE custody at the Seneca County jail in Tiffin, Ohio.
In the meantime, on March 15, 2011, the Government filed its response to Randazzo's § 2255 Motion, and Randazzo filed a reply brief on March 21, 2011. We held hearings on the Motion on March 29, 2011, and April 7, 2011, and the parties filed post-hearing submissions on April 22, 2011.
Randazzo has moved for relief pursuant to 28 U.S.C. § 2255, which provides as follows:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. 28 U.S.C. § 2255(a). "In order to prevail on a Section 2255 motion, the movant's claimed errors of law must be constitutional, jurisdictional, 'a fundamental defect which inherently results in a complete miscarriage of justice,' or 'an omission inconsistent with the rudimentary demands of fair procedure.'" United States v. Perkins, Crim. A. No. 03-303, 2008 WL 399336, at *1 (E.D. Pa. Feb. 14, 2008) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).
The United States Court of Appeals for the Third Circuit has held that a waiver of appellate or collateral rights is enforceable provided that (1) it was entered into knowingly and voluntarily; (2) no specific exception set forth in the agreement applies; and (3) enforcement of the waiver would not work a miscarriage of justice. United States v. Goodson, 544 F.3d 529, 536 (3d Cir. 2008) (citing United States v. Jackson, 523 F.3d 234, 243-44 (3d Cir. 2008)); see also United States v. Khattak, 273 F.3d 557, 562-63 (3d Cir. 2001); United States v. Shedrick, 493 F.3d 292, 297-98 (3d Cir. 2007). To evaluate whether enforcement of a waiver would result in a miscarriage of justice, the Third Circuit has suggested a number of factors that may be considered, including: "'the clarity of the error, its gravity, its character . . . , the impact of the error on the ...