The opinion of the court was delivered by: Irenas, Senior District Judge
Before the Court is Petitioner's Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255.*fn1
Petitioner argues that his Sixth Amendment right to counsel was violated because his lawyer failed to raise several arguments for downward departures under the United States Sentencing Guidelines ("U.S.S.G."). (Pet. Mot. at 5; Pet. Mem. at 10-11) For the reasons set forth below, Petitioner's application will be denied without an evidentiary hearing.
Petitioner Kayode Adeyemi arrived in the United States on June 16, 2004, via a Virgin Atlantic flight that departed from London, England and arrived at Newark International Airport in New Jersey. (Presentence Investigation Report ("PSR") at 6) During the course of a customs examination, Petitioner admitted that he had swallowed approximately 70 pellets containing heroin. (Id.) Petitioner was then taken into custody. (See id. at 6, 13) Subsequent analysis of the pellets revealed Petitioner ingested 770 grams of heroin in an attempt to smuggle the narcotics into the United States. (See id. at 7) Upon his arrest, Petitioner cooperated with the authorities by providing extensive information.
In exchange for his cooperation, Petitioner accepted a plea agreement under which he would plead guilty to importing more than 700 grams but less than 1 kilogram of heroin. (PSR at 3) The stipulated facts resulted in a Base Offense Level of 30.*fn2
(Id. (citing § 2D1.1(C)(5)) On May 19, 2005, Petitioner pled guilty to a one count information in violation of 21 U.S.C. §§ 952(a) and 960(b)(2)(A) and 18 U.S.C. § 2. (Id. at 1, 3) As described in the PSR, offense level reductions were recommended for minor participation in the criminal activity (minus 2 levels, see § 3B1.2(b)), acceptance of responsibility (minus 2 levels, see § 3E1.1(a)), assisting authorities in prosecuting the offense (minus 1 level, see § 3E1.1(b)), and satisfying the "safety valve" provisions of the U.S.S.G. (minus 2 levels, see §§ 5C1.2 and 2D1.1(b)(6)). (Id. at 4-5) As a result of these reductions, the recommended Total Offense Level was 23. (Id. at 9-10)
Generally, a violation of 21 U.S.C. § 960(b)(2)(A) carries a mandatory minimum sentence of 60 months. (Id. at 14) The recommended period of imprisonment for a Level 23 offense is 46 to 57 months. (Id.; see also U.S.S.G. ch. 5 pt. A) Where, as here, the mandatory minimum sentence is greater than the upper limit of the recommended penalty under the guidelines, the mandatory minimum sentence becomes the recommended guideline sentence. § 5G1.1(b).
Petitioner had the opportunity to achieve relief from the 60 month mandatory minimum sentence via a showing of specified factors relating to his criminal history and conduct or by motion of the Government. (See PSR at 15 (citing 18 U.S.C. § 3553(f), U.S.S.G. § 5C1.2, 18 U.S.C. § 3553(e), U.S.S.G. § 5K1.1)) In the opinion of the United States Probation Office, Petitioner made the requisite showing under § 5C1.2 to gain relief from the mandatory minimum sentence. (See Sentencing Rec. at 2) The Probation Office further recommended Petitioner be sentenced to the minimum prison term within the applicable guideline range, 46 months. (Id.) Beyond this, the Government exercised its discretion under § 5K.1 and 18 U.S.C. § 3553 to request a sentence below the guideline range. (See Ltr. from U.S.D.O.J. at 1-2). Finally, Petitioner's counsel submitted a seven page brief with three attached exhibits. The brief sought a sentence of 30 months and delineated various justifications for this request. See infra pt. III (citing relevant aspects of Petitioner's Pre-Sentencing Brief).
This Court imposed a sentence of 30 months imprisonment on August 19, 2005. (Judgment dated Aug. 24, 2005, at 1-2) Nevertheless, Petitioner believes he received ineffective assistance of counsel in violation of the Sixth Amendment. He filed the instant motion on December 22, 2005.
Section 2255 provides, in pertinent part, 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 Constitutional 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255 (2000); see also Rules Governing § 2255 Cases, 4 Rule 1(1). Thus, Petitioner is entitled to relief only if he can establish that he is in custody in ...