The opinion of the court was delivered by: Slomsky, J.
Before the Court is Defendant Richard Creamer's ("Defendant") pro se Motion to Vacate, Set Aside, or Correct [a] Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255. (Doc. No. 131.) Defendant was convicted of one count of conspiring to manufacture 1,000 or more marijuana plants, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A), and one count of maintaining a place for the manufacture of controlled substances, in violation of 21 U.S.C. § 856(a)(2). In his Motion, Defendant challenges his sentence of 60 months incarceration, alleging that his counsel rendered ineffective assistance in violation of the Sixth Amendment to the United States Constitution. (Id.) He also challenges the part of his sentence requiring him to pay restitution in the amount of $91,943.08, claiming that this condition violates procedural due process under the Fifth Amendment to the United States Constitution. (Id.)
For reasons that follow, Defendant's Motion will be denied.*fn1
From March 2009 to July 16, 2009, Defendant Richard Creamer conspired with others to grow or manufacture at least 1,664 marijuana plants inside a warehouse located in Philadelphia, Pennsylvania, and to divide and distribute the marijuana. (Doc. No. 138 at 12.) An investigation by the Drug Enforcement Administration ("DEA") and testimony by fellow conspirators revealed the scope of the conspiracy as well as Defendant's role as a "share partner." (Id. at 11; Presentence Investigation Report ("PSR") at 7.)
The conspiracy was comprised of at least 10 individuals, each with a specific role or task. (Doc. No. 138 at 3-10; PSR at 5-6.) In October 2007, Defendant Creamer assisted in purchasing a warehouse located at 2310 North American Street in Philadelphia. (Doc. No. 138 at 11; PSR at 16.) The warehouse was then renovated to conduct an indoor marijuana grow operation. (Doc. No. 1.) At some point before May 15, 2009, unmetered power lines were fed into the warehouse in order to provide electricity for the lighting and cooling machinery necessary to grow and harvest the marijuana. (Doc. No. 138 at 4; PSR at 7-9.) On a monthly basis, the marijuana was harvested and prepared for distribution. (PSR at 14.)
Defendant's role in the conspiracy was at the managerial level. (See Doc. No. 130 at 20-21.) As a licensed attorney before the instant conviction, Defendant created a business entity, 2306 American LLC, and opened a checking account in its name. (PSR at 16.) Through 2306 American LLC, Defendant managed the warehouse. (See id.) He was "a 50% share partner with [the owner and leader of the marijuana growing operation] in the purchase of the warehouse" and "received a 30%-35% share of the marijuana regularly harvested." (Doc. No. 138 at 11; PSR at 16.) The conspiracy ended on July 16, 2009, when agents of the DEA raided the warehouse and subsequently searched the premises and seized the marijuana and paraphernalia used in the grow operation.
On July 28, 2010, a grand jury in the Eastern District of Pennsylvania returned a six-Count Indictment charging Defendant and other conspirators with: conspiracy to manufacture 1,000 or more marijuana plants, in violation of 21 U.S.C. § 846 (Count One); manufacture of 1,000 or more marijuana plants and aiding and abetting, in violation of 21 U.S.C. § 841(b)(1)(A) and 18 U.S.C. § 2 (Count Two); manufacture of 1,000 or more marijuana plants within 1,000 feet of a school and aiding and abetting, in violation of 21 U.S.C. § 860(a) and 18 U.S.C. § 2 (Count Three); possession with intent to distribute 1,000 or more marijuana plants, in violation of 21 U.S.C. § 841(b)(1)(A) and 18 U.S.C. § 2 (Count Four); possession with intent to distribute 1,000 or more marijuana plants within 1,000 feet of a school and aiding and abetting, in violation of 21 U.S.C. § 860(a) and 18 U.S.C. § 2 (Count Five); and maintaining a place for manufacture of controlled substances, in violation of 21 U.S.C. § 856(a)(2) (Count Six). (PSR at 4.)
On July 29, 2010, before the Honorable David R. Strawbridge, a United States Magistrate Judge for the Eastern District of Pennsylvania, Defendant entered a plea of not guilty to all Counts. (Tr. of Arraignment, Doc. No. 9 at 6-7.) The record reveals the following exchange:
Courtroom Deputy: Richard K. Creamer, you have been charged in Criminal Indictment Number 10-478, defendant number one, charging you in Count One with conspiracy to manufacture a thousand or more marijuana plants; charging you in Count Two with manufacture of a thousand or more marijuana plants and aiding and abetting; that's also for Count Three; charging you in Count Four with possession with intent to distribute a thousand or more marijuana plants within a thousand feet of a school and aiding and abetting; that's also Count Five; and Count Six, charging you with maintaining a place for manufacture of controlled substances. How say you to the charges in this indictment, guilty or not guilty?
The Defendant: Not guilty. (Id.)*fn2
On December 16, 2010, Defendant was found guilty by a jury on Counts One and Six, charging him with conspiring to manufacture, manufacturing, and possessing with intent to distribute 1,000 or more marijuana plants, and with maintaining a place for the manufacture of controlled substances, respectively. (Doc. No. 74; PSR at 4.) He was found not guilty on Counts Two to Five. (Doc. No. 74.)
On June 1, 2011, a sentencing hearing was held. (Doc. No. 130.) Defendant faced a mandatory minimum sentence of 120 months on the Count One conspiracy conviction, but the Court found that the Federal Sentencing Guidelines' safety-valve provision, U.S.S.G. § 5C1.2, applied in this case, thereby permitting a sentence to be imposed without regard to any statutory minimum sentence. (Id. at 23-25.) After considering the evidence in the record and presented at sentencing, including 9 character letters and the testimony of 14 character witnesses through a proffer from counsel (id. at 4, 35-36, 58), the Court sentenced Defendant to serve a 60-month period of incarceration on each Count, to run concurrently, to serve a period of supervised release, and to pay a fine and to make restitution to PECO (the utility company from which the conspirators stole electricity in order to grow the marijuana) in the amount of $91,943.08. (Id. at 66-68.)
Thereafter, in a letter to the Court dated June 6, 2011, Defendant noted that his counsel failed to forward 39 additional character letters for the Court to consider in crafting an appropriate sentence. (Doc. No. 114.) Defendant attached those additional letters to his June 6, 2011 letter which sought a reconsideration of the sentence imposed. (Id.)
On February 24, 2012, Defendant filed the instant Motion to Vacate, Set Aside, or Correct [a] Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255. (Doc. No. 131.) The Motion raises four issues that Defendant claims entitle him to relief. First, Defendant argues that trial counsel was ineffective by failing: (1) to inform him of the option to enter an open guilty plea; (2) to object to the Court's finding that 1,664 marijuana plants placed Defendant in the 100 kilogram to 400 kilogram weight category under the Federal Sentencing Guidelines; and (3) to forward 39 character letters to the Court.*fn3 (Id.) Defendant also argues that his right to procedural due process was violated because the Government did not present evidence to support the amount of restitution ordered to be paid. (Id.)
Defendant alleges that his trial counsel was constitutionally ineffective and requests that the Court vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.*fn4 Section 2255 states that:
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 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. Relief under § 2255 requires an error of law or fact constituting a "'fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Eakman, 378 F.3d 294, 298 (3d Cir. 2004) (quoting United States v. Addonizio, 442 U.S. 178, 185 (1979)). In reviewing a § 2255 motion, a court applies a more exacting standard than the plain-error standard applied in reviewing a direct appeal. United States v. Frady, 456 U.S. 152, 165-66, 166 n.15 (1982).
A district court has discretion in determining whether to hold an evidentiary hearing on a § 2255 motion. United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005); Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989). In exercising that discretion, a district court "'must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record.'" Booth, 432 F.3d at 545 (quoting Forte, 865 F.2d at 62). A district court may summarily dismiss a § 2255 motion, rather than hold an evidentiary hearing, only when "the motion, files, and records 'show conclusively that the movant is not entitled to relief.'" United States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994) (quoting United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992)); see also Booth, 432 F.3d at 545-46; Rule Governing § 2255 Proceedings for the U.S. District Courts 4(b) ("If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the [§ 2255] motion . . . ."). In contrast to the standard of review in considering the merits of a § 2255 motion, "'[t]he standard governing . . . requests [for evidentiary hearings] establishes a reasonably low threshold for habeas petitioners to meet.'" United States v. McCoy, 410 F.3d 124, 134 (3d Cir. 2005) (quoting Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir. 2001)); Booth, 432 F.3d at 546. Moreover, a prisoner's pro se pleading is construed liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Huertas v. Galaxy Asset Management, 641 F.3d 28, 32 (3d Cir. 2011).
A. Ineffective Assistance of Counsel
The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. "[A] habeas petitioner claiming a deprivation of his or her Sixth Amendment right to effective assistance of counsel must show that: (1) counsel's performance was deficient; and (2) counsel's deficient performance caused the petitioner prejudice." Ross v. District Attorney of the County of Allegheny, 672 F.3d 198, 209-10 (3d Cir. 2012) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). A defendant faces a high bar in bringing an ineffective assistance of counsel claim. Padilla v. Kentucky, 130 S. Ct. 1473, 1485 (2010).
To prove deficient performance, a defendant "'must show that counsel's representation fell below an objective standard of reasonableness . . . . The challenger's burden is to show that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.'" Ross, 672 F.3d at 210 (quoting Harrington v. Richter, 131 S. Ct. 770, 787 (2011)). In analyzing whether counsel comported with professional standards, a court should be "highly deferential," "'indulg[ing] a strong presumption that counsel's ...