KATHARINE S. HAYDEN, District Judge.
Hyun-Yop Sung waived indictment and entered into a plea agreement with the United States on a two-count information that charged him with 1) conspiring to unlawfully produce an identification document and to commit credit-card fraud (18 U.S.C. § 371) and 2) aggravated identity theft (18 U.S.C. § 1028A and section 2). The plea agreement recited Sung's sentencing exposure: a maximum of five years of incarceration on count one and a statutory, consecutive mandatory minimum of two years of incarceration on count two. The agreement also contained factual stipulations, specifically that the offenses of conviction involved losses "totaling approximately more tha[n] $120, 000 but not more than $200, 000" and involved ten or more victims. But the parties did not stipulate to a sentencing range deemed to be reasonable; as to the Guidelines range, Sung was entering an "open" plea. ( See Plea Agreement 2-3, 7 [D.N.J. Crim. No. 2:12-cr-00070 D.E. 569].)
In the final Presentence Report ("PSR"), Sung's adjusted offense level was level 15. ( See PSR ¶ 65.) The two year mandatory minimum consecutive sentence for his conviction on count two was expressly excluded from the adjusted offense level calculation. (PSR ¶ 53.) Sung scored a criminal-history category of II, so the Guidelines sentencing range was 21 to 27 months; factoring in the mandatory minimum, his sentencing range became 45 to 51 months. (PSR ¶ 94.)
Prior to sentencing, Sung's attorney submitted a sentencing memorandum in which he sought a departure from the guidelines. He argued that the adjusted Guidelines range calculated in the presentence report was too severe in light of the actual offense conduct, and specifically objected to Sung's criminal-history classification, which "substantially over-represent[ed] the seriousness of Mr. Sung's criminal history and the likelihood that he will commit other crimes." (July 12, 2012 Letter 3-5.) Counsel separately articulated several other rationales for a downward departure, including the fact that Sung, as a non-citizen, would "be further incarcerated while he awaits deportation proceedings." (July 12, 2012 Letter 7.) The Court sentenced Sung to 21 months-the bottom of the Guidelines range-on count one and to a consecutive mandatory two-year term on count two, for an aggregate term of 45 months.
Sung did not appeal. Rather, in November 2012, he filed a timely pro se motion to vacate his sentence under 28 U.S.C. § 2255. [D.E. 1.] Sung claimed that his attorney had been ineffective for failing to seek both a downward departure under the Fast Track program (citing the "unwarranted sentencing disparities" language of 18 U.S.C. § 3553(a)(6)) and a downward departure "based on the harsher conditions of" Sung's confinement. Separately, Sung requested early deportation under 8 U.S.C. § 1231(a)(4)(B).
After being apprised of his rights under United States v. Miller , 197 F.3d 644, 649-50 (3d Cir. 1999), Sung elected to withdraw his § 2255 motion in anticipation of filing an "all-inclusive" application for relief. The replacement, still-timely § 2255 motion-which is now before the Court accompanied by a memorandum of law-raises an altogether different set of claims:
1) "The District Court committed Plain and Procedural Error by Imposing Sentence Outside of [Sung's] Applicable Guideline Range, " and
2) "Sentence Disparity: [Sung's] Sentence was greater than necessary to achieve 18 U.S.C. § 3553(a) purpose[s]."
( See Second § 2255 Motion 5-7 [D.E. 6].)
In ground one, Sung argues that his sentence amounted to an "upward departure from the plea agreement applicable sentencing guideline range of level 15 or 21-27 months['] imprisonment." (Mem. 2 [D.E. 6-2].) Relying on United States v. Vidal-Reyes , 562 F.3d 43 (1st Cir. 2009), Sung maintains that this Court "should have taken the mandatory two-year sentence into consideration by departing downwards with regards the Conspiracy Count which is not a predicate offense." (Mem. 3.) Sung also contends that he should have received "fair notice" before any upward departure was applied.
In ground two, Sung claims that his sentence, as imposed, creates an unwarranted sentence disparity, suggesting that this Court did not properly weigh the § 3553(a) factors in determining his sentence. Sung requests "alternatively" what he terms "Smith's Departure, " based on the outcome in United States v. Smith , 27 F.3d 649, 655-56 (D.C. Cir. 1994) (concluding that a downward departure based on incarceration severity pending deportation was "appropriate" in certain circumstances). (Mem. 6-8.)
In its response, the government argues that Sung's claims are procedurally defaulted and that the "alleged sentencing errors are not cognizable ...