it declined to deem these efforts sufficiently exceptional to warrant a
downward departure See id. at 352.
In the case at bar, petitioner presents a record similar to that of
Jaramillo. He has successfully completed 320 hours of educational
courses, and his work performance has been outstanding, as evaluated by
his supervisor. Contrasting negatively with Jaramillo, however,
petitioner was subject to disciplinary action on one occasion. Petitioner
was found in possession of unauthorized money and thereafter attempted to
bribe the correction officer to clear his record.
The Court considers much of petitioner's conduct to be as expected for
any prisoner in his situation. The Court is unwilling to grant any
special credit, beyond that awarded under the good-time credit program for
early release, for behavior that merely conforms to the rules of the
institution. The Court also recognizes that a Sally downward departure
normally occurs before sentencing. See Sally, 116 F.3d at 79; see
alsoJohnson v. United States, No. Civ.A.98-CV-2941, 1998 WL 964200, at *2
(E.D.Pa. Nov. 3, 1998). Even if the Court were to extend Sally to
postsentencing relief, petitioner's efforts have not been sufficiently
extraordinary, falling outside the "heartland" of cases, thereby
compelling relief. Therefore, any supposed error by counsel in not
requesting a downward departure on this ground cannot have prejudiced
petitioner, as required by Strickland.
4. Breach of Contract
Petitioner argues that the government breached the plea agreement. This
claim is completely unfounded.
The government promised to `move the sentencing judge, pursuant to
section 5K1.1 of the Sentencing Guidelines, to depart from the otherwise
applicable guideline range," if petitioner provided "substantial
assistance in the investigation or prosecution of one or more persons who
have committed offenses." (See Government Exhibit B). This application
was made and accepted by the Court. (See Government Exhibit E). In
addition, while not required to do so, the government objected to the
probation officer's factual determination regarding the applicable drug
amount for sentencing purposes.
Petitioner finds fault with the government for its failure to argue for
a downward departure, given petitioner's allegedly minor role, pursuant
to U.S.S.G. § 3B1.2. However, the government never stipulated to this
fact (see Government Exhibit B), and the petitioner admitted at the plea
colloquy that the government made no promises not contained within the
plea agreement. (See Government Exhibit C).
Petitioner also claims a breach of the plea agreement based on the fact
that the Court did not adopt the parties' stipulations and predictions
with regard to the relevant drug quantity, petitioner's criminal history
category, and the appropriate sentencing guideline range. However,
petitioner was duly informed by the Court that any prediction or
stipulation written in the plea agreement or orally conveyed to
petitioner was not binding on the Court and was subject to revision
following the presentence report. (See Government Exhibit C); see also
Fed.R.Crim.P. 11(e); U.S.S.G. § 6B1.4(d).
During the plea agreement colloquy, the Court asked, "Mr.
[petitioner], you understand that, until the presentence report is
completed, it's impossible for either the Court or your lawyer to know
precisely what sentence range will be prescribed by the guidelines?"
(Government Exhibit C). Petitioner replied that he understood. The Court
also explained to petitioner that "[t]he Government is not making any
representation to [him] as to what level offense will ultimately be
determined or what [his] criminal history category is." (id.). Petitioner
stated that he understood this as well. Finally, the plea agreement,
signed by petitioner, warns, "[t]he sentence
to be imposed upon [petitioner] is within the sole discretion of the
sentencing judge." (id.).
In short, petitioner was thoroughly advised of his rights under the
plea agreement, and the government fulfilled its obligations therein.
Accordingly, petitioner's argument is without merit.
For the reasons set forth above, petitioner's application for relief
will be denied with prejudice.
An appropriate Order is attached.
In accordance with the Court's Opinion filed herewith,
It is on this 23d day of August, 2000
ORDERED that petitioner's application for a writ of habeas corpus is
denied with prejudice.