The opinion of the court was delivered by: Norma L. Shapiro, J.
Presently before the court for disposition is the motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody filed by petitioner, Michael DelBuono (paper no. 186), to which the government has responded in opposition (paper no. 192). For the reasons discussed below, this court will deny the § 2255 motion without holding an evidentiary hearing.
In October 2007, Michael DelBuono was indicted by a federal grand jury. The indictment charged him on three counts involving heroin: (1) conspiracy to distribute heroin in violation of 21 U.S.C. §§ 846 and 841 (b) (1) (c); (2) distribution of heroin in violation of 21 U.S.C. § 841 (a) (1); and (3) distribution, aiding and abetting the distribution, of heroin in violation of 21 U.S.C. § 842 and 18 U.S.C. §841 (a) (1). On March 31, 2008, DelBuono plead guilty before the court. This was an "open plea", i.e., not pursuant to any written agreement with the Government. The final Pre-Sentence Report, issued by the assigned United States Probation Officer, concluded that the advisory Guidelines range was 188 to 235 months incarceration. There were no objections to the Pre-Sentence Report by either DelBuono or the Government. At that time, the Government submitted a Sentencing Memorandum that asked the court to impose a sentence within the advisory guideline range. Two days prior to sentencing, DelBuono's sentencing memorandum requested a sentence at the bottom of the range; through counsel, he submitted numerous letters of support. Upon examination, the Government concluded that at least some of these letters were fraudulently created by DelBuono's sister. This was determined in part from recordings of DelBuono's telephone conversations at the Federal Detention Center in Philadelphia. The recorded conversations revealed that Michael DelBuono was not only fully aware of the fraud, but encouraged his sister's creation and submission of the fraudulent letters. The Government then prepared a Motion for Upward Variance, which it filed immediately prior to the sentencing hearing. The court asked the Government and DelBuono whether either wanted a continuance to prepare a response, but DelBuono and counsel stated that they were prepared to proceed. Although the Government later withdrew its Motion for Upward Variance, it argued for a sentence at the high end of the Guidelines range based in part on the submission of the fraudulent letters. The court specifically stated that it would ignore the content of the allegedly fabricated letters, but would take into consideration DelBuono's apparent approval and encouragement of their creation.
At sentencing, the court discussed all factors under § 3553(a) before sentencing DelBuono to 230 months incarceration, followed by six years of supervised release. The court stated that it had intended to sentence DelBuono at the low end of the Guidelines range, but in light of the presentation of false letters with DelBuono's encouragement, it would sentence him at the high end of the range. DelBuono appealed his sentence on the grounds that the court abused its discretion in considering the relevant sentencing factors under 18 U.S.C. § 3553(a) and that, in any event, his sentence was unreasonable. On January 11, 2010, the Court of Appeals for the Third Circuit affirmed the judgment and held that there was no abuse of discretion. On May 10, 2010, DelBuono filed the motion now before the court: "Motion to Vacate, Correct, or Set Aside Sentence Pursuant to 28 U.S.C. § 2255."
This is a timely petition for habeas corpus following a federal conviction.DelBuono challenges his conviction and sentence on the following grounds: (i) defense counsel was ineffective for failing to challenge the application of the Career Offender Provision in calculating the advisory Guideline range; and (ii) defense counsel was ineffective for declining a continuance to investigate and prepare for sentencing upon receiving the Government's motion for an upward variance. These arguments present a constitutional issuefor collateral review.
Rule 8(a) of the Rules Governing § 2255 Proceedings, requires the court first to determine whether an evidentiary hearing is required. "When a motion is made under § 2255, the question of whether to order a hearing is committed to the sound discretion of the district court." United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992). Only when the files and records of the case are inconclusive on the issue will a district court's failure to grant an evidentiary hearing constitute an abuse of discretion. United States v. McCoy, 410 F.3d 124, 131 (3d. Cir. 2005). Here, an evidentiary hearing is not required because there is no issue of fact to be determined.
To succeed on a Sixth Amendment claim of ineffective assistance of counsel, a defendant must show that there is a "reasonable probability" that, but for counsel's unprofessional errors, result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668 (1984). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694. Under Strickland, a defendant must show first that counsel's representation "fell below an objective standard of reasonableness," id. at 688, and, second, that the deficient performance prejudiced the defense by depriving him of a fair trial, id. at 694. Unless a defendant makes both showings, the conviction has not resulted from a breakdown in the adversary process that renders the result unreliable. Id. Even under de novo review, the standard for judging counsel's representation is a most deferential one. Harrington v. Richter, 131 S. Ct. 770 (2011).
1. Ineffective Assistance of Counsel for Failing to Challenge the Mandatory Application of the Career Offender Provision.
DelBuono argues that sentencing counsel, Joseph Santaguida, Esq. ("Santaguida") , by failing to challenge the mandatory application of the Career Offender Provision, was ineffective in violation of the Sixth Amendment. He asserts that but for counsel's errors his sentence could have been in the 51-63 month range.
DelBuono argues on the mistaken understanding that the calculation of the Guidelines is at the discretion of the court. Although the Guidelines, themselves, are advisory, United States v. Booker, 543 U.S. 220, (2005), the correct calculation of the Guidelines is not. Our post-Booker precedent instructs a district court to conduct a three-step sentencing process:
(1) The court must continue to calculate a defendant's Guidelines sentence precisely as before Booker.
(2) In doing so, it must formally rule on the motions of both parties and state on the record whether she is granting a departure and how that departure affects the Guidelines calculation, and take into account ...