The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION AND ORDER
Petitioner Sergio Gutierrez ("petitioner" or "Gutierrez") has filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. For the reasons explained below, that petition is denied.
On July 24, 2000, Gutierrez pled guilty to Count I of the indictment which charged that he conspired with others to distribute over five kilograms of mixtures containing cocaine, in violation of 21 U.S.C. § 841(a)(1). On March 21, 2001, Gutierrez was sentenced to a term of 262 months' imprisonment followed by a five-year term of supervised release, and was ordered to pay a fine of $200 and a special assessment of $100. Despite instruction by Gutierrez and by the Seventh Circuit, Gutierrez's counsel failed to file a timely appeal. After receiving permission to file a late appeal, Gutierrez, with the help of newly appointed counsel, appealed. On April 25, 2003, the Seventh Circuit affirmed Gutierrez's conviction and sentence.
On September 27, 2004, Gutierrez filed the instant petition. Having reviewed the pro se petition, the court has done its best to determine what claims Gutierrez makes. They are:
(1) ineffective assistance of trial counsel where counsel failed to pursue his previous motion for a downward departure based on Gutierrez's willingness to consent to deportation; (2) ineffective assistance of trial counsel where counsel failed to file an appeal; and (3) violation of Gutierrez's Sixth Amendment rights in light of United States v. Booker, 543 U.S. 220 (2005). After the government answered, the court appointed Gutierrez counsel. Appointed counsel filed a reply on Gutierrez's behalf.
On April 29, 1999, pursuant to a search of Gutierrez's house, government agents seized 231.6 grams of crack cocaine, which Gutierrez intended to distribute. On August 25, 1999, Gutierrez sold approximately five kilograms of cocaine to Clyde Williams, one of his co-defendants, who had been cooperating with the government. On August 26, 1999, co-defendant Williams purchased another four kilograms of cocaine from Gutierrez. In addition to these two sales, Gutierrez sold multi-kilogram quantities of cocaine several times to co-defendant Williams between 1997 and August 1999. During this same time period, Gutierrez purchased several multi-kilogram quantities of cocaine from Gerrardo Olivas-Quintero, another one of the co-defendants.
Under 28 U.S.C. § 2255, federal prisoners can challenge the imposition or length of their detention if their conviction or sentence has been founded on an error that is "jurisdictional, constitutional, or is a fundamental defect which inherently results in a complete miscarriage of justice." Oliver v. United States, 961 F.2d 1339, 1341 (7th Cir. 1995); 28 U.S.C. § 2255. If the court determines that any of these errors infected the judgment or sentence, the petitioner's conviction will be vacated or set aside, and the petitioner will be discharged, resentenced, or granted a new trial. 28 U.S.C. § 2255(b).
A. Ineffective Assistance of Trial Counsel
To establish ineffective assistance of counsel, Gutierrez must demonstrate: (1) that his attorney's performance was deficient; and (2) that such representation prejudiced his case. Precin v. United States, 23 F.3d 1215, 1218 (7th Cir. 1994) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). The first prong is satisfied by showing that counsel's performance fell below the "objective standard of reasonableness" guaranteed under the Sixth Amendment. Barker v. United States, 7 F.3d 629, 633 (7th Cir. 1993) (quoting Strickland, 466 U.S. at 687). To satisfy the Strickland prejudice element, Gutierrez must demonstrate that it is reasonably likely that, but for his counsel's errors, the decision reached would have been different. Strickland, 466 U.S. at 696.
In his first claim of ineffective assistance of trial counsel, Gutierrez argues that his counsel was ineffective for failing to pursue a motion for a downward departure based on Gutierrez's consent to deportation. The Presentence Report ("PSR") stated that there was no information to warrant a departure from the sentencing guidelines. Gutierrez's counsel argued in his written objections to the PSR and in his sentencing memorandum that Gutierrez should receive a two-level downward departure pursuant to USSG § 5K2.0 due to his willingness to consent to deportation. Counsel also argued in both documents for a downward departure because Gutierrez's alien status prevented him from benefitting from certain prison programs.
The sentencing occurred over two days -- December 20, 2000 and March 21, 2001. At the end of the December 20, 2000 hearing, the ...