JUAN R. SNCHEZ, District Judge.
Defendant Thomas Robertson, a federal prisoner, has filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, raising claims of ineffective assistance of counsel and alleging the Government breached the terms of his plea agreement by seeking a two-level enhancement under the Federal Sentencing Guidelines to which the parties had not stipulated. The Government has filed a motion to dismiss Robertson's § 2255 motion based on the waiver of collateral review rights contained in his plea agreement. For the reasons set forth below, this Court concludes all of Robertson's claims are waived and/or fail on the merits. Therefore, the Government's motion will be granted, and Robertson's § 2255 motion will be dismissed.
In November 2010, Robertson was charged in a 40-count Indictment with one count of conspiracy, 12 counts of bank fraud, 23 counts of making false statements to obtain a loan, one count of aggravated identity theft, and one count of using a fraudulent passport, all arising out of his orchestration of a fraudulent scheme to obtain loans from numerous credit unions. On March 10, 2011, Robertson pleaded guilty to all counts except the aggravated identity theft charge pursuant to a written guilty plea agreement. As part of the plea agreement, the Government agreed to move to dismiss the aggravated identity theft charge, which carried a two-year mandatory consecutive sentence, at sentencing. Guilty Plea Agreement ¶ 5(a).
In paragraph 8 of the plea agreement, the parties agreed to a number of stipulations under the Sentencing Guidelines. The parties stipulated to a base offense level of seven pursuant to U.S.S.G. § 2B1.1(a); a loss amount of $1, 495, 117, corresponding to a 16-level increase in base offense level pursuant to U.S.S.G. § 2B1.1(b)(1)(I); a two-level increase in offense level pursuant to U.S.S.G. § 2B1.1(b)(2)(A) because the offense involved 10 or more victims; and Robertson's eligibility, as of the date of the plea agreement, for a two-level downward adjustment for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a) and a one-level downward adjustment for timely notifying the Government of his intention to plead guilty pursuant to U.S.S.G. § 3E1.1(b). Id. ¶ 8(a)-(c), (e)-(f). Paragraph 8 also memorialized the parties' agreement to disagree as to the applicability of an aggravating role enhancement pursuant to U.S.S.G. § 3B1.1(c), and noted the Government's intention to "argue the applicability of that factor at the sentencing hearing." Id. ¶ 8(d). Notwithstanding the parties' agreement on these points, paragraph 8 also reflected their understanding and agreement that:
(1) the parties are free to argue the applicability of any other provision of the Sentencing Guidelines, including offense conduct, offense characteristics, criminal history, adjustments and departures; (2) these stipulations are not binding upon either the Probation Department or the Court; and (3) the Court may make factual and legal determinations that differ from these stipulations and that may result in an increase or decrease in the Sentencing Guidelines range and the sentence that may be imposed.
Id. ¶ 8 (emphasis added).
The plea agreement did not bind the Government to any particular position on the appropriate sentence, but provided the Government would "[m]ake whatever recommendation as to imprisonment... the government deems appropriate." Id. ¶ 5(b). The agreement further specified Robertson would not be permitted to withdraw his plea in the event the Court "decline[d] to follow any recommendation, motion or stipulation by the parties to this agreement, " and that "[n]o one ha[d] promised or guaranteed to [Robertson] what sentence the Court [would] impose." Id. ¶ 7.
Robertson's plea agreement also included a broadly worded appellate and collateral review waiver, in which Robertson "voluntarily and expressly waive[d] all rights to appeal or collaterally attack [his] conviction, sentence, or any other matter relating to this prosecution, whether such a right to appeal or collateral attack arises under 18 U.S.C. § 3742, 28 U.S.C. § 1291, 28 U.S.C. § 2255, or any other provision of law." Id. ¶ 9. This waiver provision is subject to certain limited exceptions. First, the waiver is "not intended to bar the assertion of constitutional claims that the relevant case law holds cannot be waived." Id. Second, the plea agreement permitted Robertson to file a direct appeal of his sentence if the Government appealed from the sentence. See id. ¶ 9(a). Third, in the event the Government did not appeal, the plea agreement permitted Robertson to file a direct appeal raising only claims that
(1) the defendant's sentence on any count of conviction exceeds the statutory maximum for that count as set forth in paragraph six above;
(2) the sentencing judge erroneously departed upward pursuant to the Sentencing Guidelines; and
(3) the sentencing judge, exercising the Court's discretion pursuant to United States v. Booker, 543 U.S. 220 (2005), imposed an unreasonable sentence above the final Sentencing Guideline range determined by the Court.
Id. ¶ 9(b).
At the change of plea hearing, the Court reviewed Robertson's guilty plea agreement with him in some detail, confirming Robertson had read the agreement from cover to cover, reviewed it with his lawyer, understood it, and had no questions about it. Change of Plea Hr'g Tr. 44-46, Mar. 10, 2011. With regard to the sentencing stipulations in Paragraph 8 of the agreement, the Court confirmed Robertson understood the stipulations would impact his potential sentence, and confirmed he was agreeing to a base offense level of seven; a loss amount of $1, 495, 117, corresponding to a 16-level increase in his base offense level; a two-level increase due to the number of victims involved; and a three-level reduction for acceptance of responsibility and timely notification of his intent to plead guilty. Id. at 46-49. The Court also confirmed Robertson understood he could potentially receive an additional four-level enhancement because of his role in the offense, depending upon the Court's ruling regarding this enhancement at sentencing, resulting in a possible total offense level of 26 based on the stipulations in the plea agreement. Id. at 48-49. The Court made clear, however, that the stipulations were "not binding upon [the Court] nor the Probation officer, " noting if "during the investigation of the Probation officer, something surfaces that changes these stipulations, I don't have to follow them, " and that Robertson would not be able to withdraw his guilty plea if he did not like the sentence imposed. Id. at 50-51. The Court also ensured Robertson understood he was facing "significant incarceration" with a total aggregate statutory maximum on all counts of more than 1, 000 years. Id. at 27-29, 51.
The Court also reviewed the appellate waiver with Robertson, directing his attention to the written waiver in paragraph 9 of the guilty plea agreement and confirming he had read the provision carefully and understood that by pleading guilty he was "giving up forever [his] right to appeal [or] to attack [his] conviction..., [his] sentence or any other matter relating to the prosecution of this case, whether such a right to appeal or to attack arises under these provisions of law or any other provision of ...