The opinion of the court was delivered by: Freda L. Wolfson, U.S.D.J.
*** NOT FOR PUBLICATION ***
Petitioner Rashad Smith ("Petitioner" or "Smith"), a federal inmate proceeding pro se, filed the instant action as a petition to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Presently before the Court is the United States of America's ("the Government's") motion to dismiss Smith's petition, along with Smith's motion to appoint counsel and for an evidentiary hearing. For the following reasons, the Government's motion to dismiss will be granted and Smith's motion to appoint counsel and for an evidentiary hearing is denied.
On May 15, 2006, criminal complaints were signed and filed against Petitioner for his role in a multi-year drug trafficking conspiracy in Camden, New Jersey. Following a Superseding Indictment returned on May 2, 2007, Petitioner pled guilty to conspiracy to distribute and possess with intent to distribute cocaine and cocaine base under 28 U.S.C. § 846, and entered into a plea agreement on August 16, 2007. Per the plea agreement, Petitioner agreed that he was responsible for the distribution of "at least 1.5 kilograms" of cocaine base.
The plea agreement provided that the November 1, 2006, version ("2006 version" or "2006 Guidelines") of the United States Sentencing Guidelines ("the Guidelines") applied to Smith's plea. Under the 2006 version of the Guidelines, the base offense level for 1.5 kilograms of cocaine base was 38. See U.S.S.G. §2D1.1(c)(1). In the plea agreement, Smith stipulated that he was subject to a 4-level increase as an organizer or leader of relevant activity and the Government agreed to seek a downward adjustment of 2 levels for his acceptance of responsibility. The agreement further stated that, should Smith's applicable offense level exceed 16, he was entitled to additional 1-point reduction in his offense level. Taking into account these calculations, the provides "the parties agree that the total Guidelines offense level applicable to Rashad Smith is 39." Plea Agmt., ¶ 6.
Importantly, the plea agreement also contains a waiver provision whereby Smith waives his right to file an appeal under 18 U.S.C. § 3742, or to file a collateral attack under 28 U.S.C. § 2255. Moreover, the agreement includes language stating that Smith knowingly and voluntarily waived his rights to appeal and collateral attack. The wavier provision states that it is binding even if the Court adopts a different Guidelines calculation than that stipulated to by the parties. The only exception included in the waiver provision is that either party could appeal the sentencing court's determination of Smith's criminal history category. At the conclusion of the agreement, Smith signed underneath an acknowledgment, which stated "I have received this [plea agreement] letter from my attorney, Scott Krasny, Esq., I have read it, and I understand it fully."
At the plea hearing, the Court reviewed the provisions of the plea agreement with Petitioner and confirmed that he "underst[oo]d the circumstances under which the waiver of appeal and collateral attack applie[d]." Tr. of Plea Hrg. 17:4; id. at 17:8 - 18:22. The Court, further, asked Smith whether he discussed the waiver with his attorney and whether he was satisfied with the explanation given by his attorney, to which questions Smith answered "Yes." Id. at 18:9-15.
In addition, the Court reviewed the maximum penalty for the crime to which Smith pled, conspiracy to distribute cocaine or cocaine base - 21 U.S.C. § 846, for which the maximum penalty is a sentence of life imprisonment. Id. at 19:20-22. Thereafter, the Court explained the advisory nature of the Guidelines and confirmed that, over the life of the drug conspiracy, Smith and his co-conspirators were "responsible for acquiring in excess of 5 kilograms of cocaine and distributing more than 50 grams of cocaine base .." Id. at 20:1-5. Based on the Court's extensive colloquy, the Court concluded that Smith's plea and waiver was knowing and voluntary.
Prior to sentencing, probation recommended that Smith's total offense level should be 39, which recommendation was consistent with the plea agreement stipulation. Finding Smith to be a career offender, he was assigned a Criminal History Category VI. The advisory Guideline sentencing range was, accordingly, 360 months to life imprisonment.
Also prior to sentencing, on November 1, 2007, Amendment 706 to the Guidelines went into effect. That amendment altered the Guidelines' Drug Quantity Tables such that 1.5 to 4.5 kilograms of cocaine base results in a base offense level of 36, while 4.5 kilograms and above results in a base offense level of 38. This is in contrast to the 2006 version of the Guidelines, which provided that 1.5 kilograms of cocaine base resulted in a base level of 38.
The Court conducted a sentencing hearing on June 6, 2008. At the hearing, the Government proffered that it had evidence and witness testimony that the Petitioner was responsible for at least 4.5 kilograms of cocaine base. Smith's counsel indicated on the record that Smith conceded to this amount. Tr. Sentencing Hrg. 4:12-25.
Noting that there had been an exchange of letters between the parties prior to the hearing regarding the Guidelines amendment, the Court noted that there was no practical difference between sentencing under the 2006 drug quantity table versus the 2007 table: even if a different Guideline was used and if it were a level 36, and we go through the other calculations, and the defendant ended up at a 37 as opposed to a 39 [under the 2006 Guidelines] it still placed him at the same sentencing range, and it would have had actually no effect on the Guideline range itself even if there had been a different amount.
Id. at 6:9-16. The Court then confirmed that Smith's counsel had discussed this with Smith, and counsel indicated that Smith "understands the Guideline calculations were the same." Id. at 6:17-20. Smith confirmed ...