The opinion of the court was delivered by: Mary L. Cooper United States District Judge
This matter comes before the Court on the motion of pro se petitioner Dominick Scibetta to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. As set forth in this Memorandum Opinion, the Court is of the view that defendant has presented good grounds for the Court to conclude that his sentence was calculated improperly under the Guidelines, and that petitioner has met his burden of establishing ineffective assistance of counsel limited to that issue.
For this reason, the Court will appoint counsel to represent petitioner in this proceeding, and will afford the parties an opportunity to address the sentencing issue which is discussed and analyzed in this Memorandum Opinion. No order adjudicating the matter will be entered until the parties have had an opportunity to present their further arguments to the Court.
Petitioner and three co-defendants were indicted in a one-count Indictment filed on September 7, 1995. The Indictment charged that on or about November 4, 1991, at Union City, New Jersey, the defendants conspired to obstruct, delay and affect commerce by robbery, in violation of 18 U.S.C. § 1951, a Hobbs Act offense. He was convicted by jury verdict rendered on February 12, 1996. *fn1
Petitioner received a sentence of 34 months imprisonment and three years of supervised release, with waiver of any fine. The sentence was within the Guideline range of 33 to 41 months, as calculated in the Presentence Investigation Report ("PSR"), which was approved by the Court without objection by either party. (Sent. Hr'g Tr. at 2-3, 11- 12.) *fn2 That calculation was based upon Section 2B3.1(a) of the United States Sentencing Guidelines ("USSG" or "Guidelines"), which assigned a base offense level of 20, with no specific offense or other adjustments, and a criminal history category of I. (PSR ¶¶ 31-41, 44, 65.)
Petitioner filed a timely appeal of his conviction and sentence, but the appeal was not perfected and was administratively dismissed by consent on August 28, 1996. Petitioner timely filed the present motion under 28 U.S.C. § 2255 on May 13, 1997. *fn3 The motion presents no factual issues requiring an evidentiary hearing. *fn4
A. Petitioner's Allegations
Section 2255 of Title 28, United States Code, provides that a prisoner in custody under sentence of a federal court may move before the court which imposed the sentence to vacate, correct, or set aside a sentence, on the grounds that:
the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. 28 U.S.C. § 2255.
The instant Petition seeks to vacate, set aside or correct the sentence on the ground that petitioner should have been sentenced under USSG § 2X1.1, which pertains to certain conspiracies, rather than under the robbery guideline, § 2B1.3. (Pet. ¶¶ 12A, 12B; Pet. Reply Br. at 6-11.) Petitioner asserts that if § 2X1.1 is applicable, then under the facts of his case he should have been entitled to a three-level downward adjustment pursuant to § 2X1.1(b)(2). (Id.) That Guideline section provides in pertinent part:
1. CONSPIRACIES, ATTEMPTS, SOLICITATIONS
§ 2X1.1 Attempt, Solicitation, or Conspiracy (Not Covered by a ...