United States District Court, D. Kansas
MEMORANDUM AND ORDER
MONTI L. BELOT, District Judge.
Before the court is defendant's motion pursuant to 28 U.S.C. § 2255. (Doc. 57). The government has responded. (Doc. 58). Defendant has not filed a reply and the time for doing so has expired.
In addition to the parties' briefs, the court has considered the record of the case including the indictment (Doc. 13), defendant's petition to enter a plea of guilty (Doc. 30), the plea agreement (Doc. 31), the presentence report (Doc. 32), defendant's motion for downward departure and government's response (Docs. 38 and 39), transcripts of the Rule 11 hearing and sentencing hearing (Docs. 51 and 52), and the mandate of the Tenth Circuit on direct appeal. (Doc. 56).
Defendant's §2255 motion claims that he received ineffective assistance of counsel in two respects: first, he claims his attorney did not provide him with the presentence report before the sentencing hearing; and second, he says his attorney failed to explain to him the effect of being a career offender under the sentencing guidelines. For the reasons set forth, the court concludes the motion should be denied.
Defendant pled guilty to a single-count indictment charging unlawful possession with intent to distribute 50 grams or more of a mixture containing cocaine base, in violation of 21 U.S.C. § 841(a)(1). He was represented by his retained attorney, Steven D. Mank. The court found defendant's plea was knowing and voluntary after conducting a Rule 11 hearing at which defendant was examined under oath.
The Petition to Enter a Plea of Guilty (Doc. 30) signed by defendant when he pled guilty included the following representations: that defendant was guilty of the offense charged; that he understood the rights he was giving up by pleading guilty; that his lawyer informed him a plea of guilty could subject him to a term of not less than 5 years and not more than 40 years' imprisonment; that except as provided in the plea agreement no government agent had promised or predicted he would receive a lighter sentence for pleading guilty, and if anyone else including his attorney did, he knew they had no authority to do so; that the sentence was solely a matter within the control of the judge; that the court was not bound by the terms of the plea agreement; and that the plea of guilty was entered freely and voluntarily and was not the result of any promises made to defendant other than those in the petition.
Defendant's plea agreement with the government (Doc. 31) contained similar representations, including: that defendant understood the potential punishment was a mandatory minimum term of 5 years and a maximum possible term of 40 years' imprisonment; that although the parties were asking for a guideline sentence, this request was not binding on the court; that the sentence would be determined solely by the court; and that defendant was giving up any right to appeal or collaterally attack his conviction or sentence, with certain exceptions including claims for ineffective assistance of counsel.
The court reviewed these and other matters with defendant at the Rule 11 hearing. (Doc. 51). Among other things the court reviewed the guidelines generally and discussed the government's agreement to recommend a sentence at the low end of the guideline range. The court noted:
As far as a low end guideline sentence, I don't know. I have - I don't know anything about you, so I won't know what kind of sentence to give in terms of a guideline sentence, certainly, until the day of sentencing, I'll listen to the Government's recommendations. I don't always follow them.
Doc. 51 at 10.
The court explained that defendant was "facing a mandatory five-year sentence. That means at least five years in the penitentiary. It can be more because you're facing up to 40 years, and the guidelines factor in there; but whatever the guideline sentence would be in this case, it can't be less than five years." (Doc. 51 at 11). The court noted the possibility of a 5K1 motion in the plea agreement but made clear it was up to the government whether or not to file one, and in any event the sentence was still up to the court:
The point here is that I don't know what sentence you're going to receive in this case, and I won't know, and I don't make up my mind until the day of sentencing because whatever the [presentence] report says, whatever the substantial assistance motion might say, I won't decide until I've heard from the lawyers at sentencing, from you if you want to address me, from any witnesses that you might have, any other information that you might want to bring to my attention. All I'm saying today, to put it in a nutshell, is you're facing at least five years in the federal penitentiary, up to 40 years, and you cannot, as you sit here today, count on the Government filing a substantial assistance motion, or if it does, that I'll grant it.
Doc. 51 at 13. After confirming that defendant had talked to his lawyer about the sentence he ...