The opinion of the court was delivered by: Padova, J.
Curti has filed a Motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence. He asks that we vacate his sentence on the ground that his attorney was ineffective in connection with his sentencing. The Government has filed a Motion to Dismiss Curti's § 2255 Motion on the ground that he waived his right to appeal or collaterally attack his judgment of conviction and sentence. For the following reasons, the Government's Motion to Dismiss is granted and Curti's Section 2255 Motion is dismissed.
On April 18, 2007, before the Honorable Thomas N. O'Neill, Jr., Curti waived indictment and pled guilty to Information No. 07-161, which charged him with one Count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). During the April 18, 2007 Hearing, Curti admitted the truth of the following facts regarding his offense. Between January 10 and January 20, 2006, investigators with the United States Attorney's Office for the District of New Jersey and agents of United States Immigration and Customs Enforcement ("ICE") intercepted e-mails between Curti and a website called "Illegal CP." (4/18/07 Hr'g Tr. at 19.) Illegal CP contains graphic images of children engaged in sexual acts with adults and with other children. (Id.) The intercepted e-mails all confirmed that Curti had been granted access to Illegal CP. (Id.) Further investigation by ICE agents revealed that Curti's e-mail address had accessed numerous images of child pornography from the Illegal CP website and that Illegal CP had billed his JP Morgan Chase credit card $79.99 on January 13, 2006. (Id. at 20.) A subsequent forensic examination of Curti's computer revealed over 7,000 images of child pornography.*fn1 (Id.)
As part of Curti's Guilty Plea Agreement with the Government, he agreed and stipulated to the following facts to be used in the calculation of his United States Sentencing Guidelines range: (1) that he "possessed more than 600 images, [and] therefore his Guideline range should be calculated based on this pursuant to USSG § 2G2.2(b)(7)(A)[;]"*fn2 (2) that his "possession of child pornography involved the use of a computer making [his] offense level increase by 2 levels under USSG § 2G2.2(b)(6)[;]" (3) that his computer contained "images depicting material involving the sexual exploitation of . . . prepubescent minors who had not attained the age of twelve (i.e. toddlers), making the defendant's offense level increase by 2 levels under USSG § 2G2.2(b)(2)[;]" and (4) that the images on his computer "portrayed sadistic, masochistic and other depictions of violence, making the defendant's offense level increase by 4 levels under USSG § 2G2.2(b)(4)." (Guilty Plea Agreement ¶¶ 6(a), (b), (c), (d).) He also "voluntarily and expressly waive[d] all rights to appeal or collaterally attack [his] conviction, or any other matter relating to [his] prosecution . . . ." (Guilty Plea Agreement ¶ 7.)
We sentenced Curti on November 7, 2007. Prior to sentencing, the probation officer calculated that Curti had a Total Offense Level of 28 and a Criminal History Category of I. (Presentence Investigation Report ("PSI") ¶¶ 23, 35, 38.) The calculation of Curti's Total Offense Level proceeded from a Base Offense Level of 18, pursuant to U.S.S.G. § 2G2.2. (PSI ¶ 24.) The Base Offense Level was increased by two levels because the pornographic images involved a prepubescent minor pursuant to U.S.S.G. § 2B2.2(b)(2); by four levels because the offense involved material that portrayed sadistic or masochistic conduct or other depictions of violence pursuant to U.S.S.G. § 2G2.2(b)(4); by two levels because the offense involved a computer pursuant to U.S.S.G. § 2G2.2(b)(6); and by an additional five levels because the offense involved 600 or more images pursuant to U.S.S.G. § 2G2.2(b)(7)(D). (PSI ¶¶ 25-28.) The resulting Adjusted Offense Level of 31 was reduced by three levels for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a) and (b), resulting in Curti's Total Offense Level of 28. (PSI ¶¶32-35.) The Sentencing Range provided by the United States Sentencing Guidelines for a Total Offense Level of 28 and Criminal History Category of I is 78 to 97 months. U.S.S.G. Ch. 5, pt. A.
In preparation for Curti's sentencing, his attorney submitted a sentencing memorandum in which he detailed Curti's medical issues, which include prostate cancer, arterial fibrillation, and Deplasti Nevi. He also submitted the reports of two psychologists, Steven E. Samuel, Ph.D., Curti's treating psychologist, and Timothy P. Foley, Ph.D, who conducted a psycho-sexual evaluation of Curti at the request of the probation officer. Curti's attorney also asked the Court to grant Curti a variance from the Sentencing Range provided by the Sentencing Guidelines based on Curti's cooperation with law enforcement (in addition to admitting his conduct, Curti provided the Government with the codes for an encryption program he used to conceal the pornographic images on his computer); his voluntary treatment with Dr. Samuels; and his voluntary enrollment in the Sexual Trauma and Recovery ("STAR") program, a treatment program for non-violent sex offenders. Curti's attorney also submitted letters written on Curti's behalf by Curti; Curti's sister, step-son, and wife; and by other relatives, friends, and business colleagues.
At sentencing, Curti's attorney called Dr. Samuel as a witness. Dr. Samuel testified regarding Curti's diagnosis, treatment, remorse, and participation in the STAR program, and his low risk for sexual contact offenses. (11/7/07 Hr'g Tr. at 8-15.) Curti's attorney also filled the courtroom with Curti's family members, friends, and professional colleagues. (Id. at 28-29.) Curti's attorney argued that Curti was entitled to a downward variance from the Guidelines Sentencing Range based on his substantial cooperation with the Government about his own criminal actions, his provision of the encryption codes to the Government,*fn3 his post-offense rehabilitation (including his voluntary participation in private psychotherapy and his participation in the STAR program); and his age and health problems. (Id. at 28-36.) Curti also made a statement at sentencing, during which he expressed his deep remorse for his conduct and apologized to his family and to the victims. (Id. at 36-37.)
We rejected Curti's request for a variance from the advisory Guidelines Sentencing Range. (Id. at 51-52.) We found, based on the grievous nature and circumstances of Curti's misconduct in this case, that Curti's cooperation, post-offense rehabilitation, medical issues, and age did not warrant a sentence below the advisory Sentencing Guidelines range. (Id. at 51-55.) We sentenced Curti to 78 months imprisonment (the bottom of the Guidelines Sentencing Range for his Total Offense Level and Criminal History), three years of supervised release, a fine of $12,500, and a special assessment of $100. (Id. at 55-58.)
C. Post-Sentencing Procedural History
Even though Curti waived his rights to appeal and to collaterally attack his sentence in his plea agreement, he filed several attacks on his sentence, the first less than a week after sentencing. On November 13, 2007, Curti filed a Motion to Correct Sentence for Clear Error pursuant to Rule 35(a) of the Federal Rules of Criminal Procedure. In his Rule 35 Motion, Curti argued that the Court erred by sentencing him to 78 months of imprisonment. Specifically, Curti averred that the advisory Sentencing Guidelines Sentencing Range was improperly based on a Total Offense Level of 28, which would only be appropriate if the offense involved 600 or more images pursuant to U.S.S.G. § 2G2.2(b)(7)(D) and, in fact, the Government had found fewer than 150 images, which should have resulted in a Total Offense Level of 26 pursuant to U.S.S.G. § 2G2.2(b)(7)(B). Curti's argument clearly ignored both his admission that his offense involved more than 7,000 images of child pornography (4/18/07 Hr'g Tr. 20), and his stipulation in his Guilty Plea Agreement that "he possessed more than 600 images, therefore his Guideline range should be calculated based on this . . . ." (Guilty Plea Agreement ¶ 6(a).) We denied Curti's Rule 35 Motion because he was "not asking us to correct an obvious error or mistake, but to reopen an issue previously decided at sentencing and to reconsider [his] request for a variance from the application [of] U.S.S.G. § 2G2.2(b)(7)(D) in the calculation of his Total Offense Level," which was beyond our authority pursuant to Rule 35(a). (1/7/08 Order at 2.)
On February 6, 2008, Curti filed a pro se appeal of our Order denying his Rule 35 Motion. On January 27, 2009, the United States Court of Appeals for the Third Circuit dismissed the appeal as untimely to the extent it sought review of his judgment of conviction and sentence and remanded to this Court "to consider whether Appellant's notice of appeal should be treated as a motion to vacate his sentence under 28 U.S.C. § 2255." United States v. Curti, No. 08-1425, order (3d Cir. Jan. 27, 2009).
On November 6, 2008, Curti, assisted by new counsel, filed a Motion for Nunc Pro Tunc Sentencing on the ground that his prior attorney had failed to file a timely notice of appeal on his behalf and Curti wanted his appellate rights to be restored. A Hearing was held on that Motion on December 17, 2008, and we informed Curti that a Section 2255 Motion was the appropriate avenue for challenging his sentence on this basis. We continued the Hearing for 60 days so that Curti could file a Section 2255 Motion. (12/17/2008 Order.)
On February 13, 2009, Curti filed a Section 2255 Motion, seeking to have his sentence vacated on the grounds of ineffective assistance of counsel, stating that his prior counsel did not file a timely notice of appeal despite his request and that he was improperly advised of his appellate rights. Curti also argued that his prior counsel was ineffective in connection with his sentencing in that he failed to object to inaccuracies and misstatements in the PSI; failed to present relevant evidence of mitigation and remorse; and failed to present his character witnesses during the sentencing hearing. We held a Hearing on Curti's Section 2255 Motion on April 28, 2009, and granted the Motion only insofar as it sought to vacate his sentence on the ground that his prior attorney failed to file a timely notice of appeal. We agreed to hold a resentencing hearing, in order to restore Curti's appellate rights, and dismissed Curti's remaining claims of ineffective assistance of counsel without ...