The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
MEMORANDUM AND ORDER OF COURT
In this criminal action, Petitioner, Douglas Curry, who previously pled guilty to one count of a four-count indictment, and was sentenced on February 20, 2009 to a term of 120 months of imprisonment, has filed a pro se Motion to Vacate, Set Aside, or Correct a Sentence pursuant to 28 U.S.C. § 2255. The bases for Petitioner's § 2255 Petition are as follows:
(1) under the recently amended Fair Sentencing Act ("FSA of 2010") he was sentenced in excess of the maximum authorized by law; (2) assuming the applicability of the FSA of 2010, under 18 U.S.C. § 3582, he is entitled to a downward departure; (3) he is entitled to a reduction of sentence for his acceptance of responsibility; and (4) under 18 U.S.C. § 3553 the Court must consider the sentence it would have imposed had the FSA of 2010 been in effect at the time he was sentenced.
I. Factual and Procedural Background
On November 14, 2006, Petitioner was indicted by a federal grand jury sitting in the Western District of Pennsylvania. Doc. No. 6. The Indictment charged Petitioner with four offenses: Counts One through Three charged him with possession with the intent to distribute and distribution of 5 grams or more of cocaine base in the form more commonly known as crack, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii); and Count Four charged him with possession with intent to distribute 50 grams or more of a mixture and substance containing a detectable amount of cocaine base, in the form more commonly known as crack, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii). Doc. No. 6.
On November 7, 2008, this Court held a change of plea hearing. Doc. No. 63. During this hearing, a plea agreement was proffered by the parties and Petitioner pled guilty to Count Four of the Indictment. Doc. Nos. 64-65.
In the plea agreement, Petitioner acknowledged responsibility for the conduct charged in Counts One through Three, and waived his 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 collateral proceeding attacking his conviction or sentence. Doc. No. 65.
The plea agreement specifically indicated that at the time of sentencing, the United States would move to dismiss the remaining counts of the Indictment (Counts One through Three). Doc. no. 65, p. 3. In addition to the motion to dismiss Counts One through Three, the plea agreement further indicated that the United States Attorney would move this Court to reduce the offense level by three levels for acceptance of responsibility. Id.
The plea agreement also indicated:
[Petitioner] and the United States Attorney further understand and agree to the following:
1. The penalty that may be imposed upon [Petitioner] is:
(a) A term of imprisonment of not less than 10 years to a ...