00 Civ. 5978 (LAK) (S1 96 Cr. 1099 (LAK)).United States District Court, S.D. New York.
September 8, 2000
ORDER
LEWIS A. KAPLAN, District Judge.
Movant was convicted on June 8, 1998 on his plea of guilty of (a) racketeering in violation of 18 U.S.C. § 1962(c) and (b) using or carrying of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). He was sentenced principally to consecutive terms of imprisonment of 144 and 60 months, respectively, for these offenses. The conviction was affirmed on December 15, 1999. He now moves to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255.
The motion seeks relief on the grounds that (1) the offense level was enhanced improperly for use of a firearm in view of the plea to the Section 924(c) count, (2) the use of USSG § 3D1.2 to determine the offense level violated the Due Process Clause, (3) movant received ineffective assistance of sentencing counsel in that counsel failed to argue point (1) or that the grouping analysis employed in the presentence report was erroneous, and (4) movant received the ineffective assistance of appellate counsel, presumably for failing to raise the preceding points on direct appeal.
Movant’s plea was made pursuant to a plea agreement in which the parties stipulated to a Guideline range of 135 to 168 months plus the 60 months on the Section 924(c) count, or an effective range of 195 to 228 months. Movant agreed neither to appeal nor otherwise litigate under 28 U.S.C. § 2255 any sentence within or below the stipulated Guideline range. The Court specifically inquired during the Rule 11 proceedings as to whether movant understood that provision of the agreement and entered into it knowingly and voluntarily. Movant so stated. (Tr., Jan. 7, 1998, 33-34) Indeed, movant agreed that he was waiving any right to challenge any sentence within the stipulated Guideline range even on the ground of ineffective assistance of counsel. (Id. at 34)
Accordingly, the motion is denied in all respects. As movant has raised no colorable claim, a certificate of appealability is denied, and the Court certifies that any appeal herefrom would not be taken in good faith.
SO ORDERED.