The opinion of the court was delivered by: Judge Joan H. Lefkow
Aris Santiago ("Santiago"), who is currently incarcerated at the United States Penitentiary in Marion, Illinois, has filed a pro se petition under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. His claims are based on the alleged violation of his the Second and Sixth Amendment rights. Santiago asserts three grounds for relief: (1) his felon-in-possession conviction under 18 U.S.C. § 922(g)*fn1 violates his right to possess firearms; (2) he received ineffective assistance of counsel at sentencing because his attorney failed to object to a four level enhancement under USSG § 2K2.1(b)(6);*fn2 and (3) he received ineffective assistance of counsel on direct appeal because his attorney moved to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 2d 493 (1967),*fn3 failing to raise either the Second Amendment or sentencing enhancement issue. For the reasons stated below, Santiago's petition is denied.
Santiago was convicted of aggravated vehicular hijacking, a felony, in July 2002 and sentenced to seven years' imprisonment. He was released from parole in October 2004. In May 2006, Santiago was arrested in connection with an investigation in which police, pursuant to a Title III wire tap, intercepted a telephone conversation between Santiago and Adam Alicea, a fellow member of the Maniac Latin Disciples. In that conversation, Santiago is heard planning a home invasion and armed robbery of a certain individual. See Transcript of May 1, 2006 Telephone Conversation (hereinafter "Telephone Conversation Tr."). During the call, Santiago suggests following the individual or his girlfriend home, id. 5:16-33, putting a gun to his or her head to force him or her into the house, id. 3:32-4:4, tying him or her up, id. 8:25-9:5 and robbing the house of all valuables, id. 6:7-7:31. Two days later, Santiago and his co-defendant, Edward Rivera, were stopped by police on their way to commit the home invasion and armed robbery discussed during the intercepted call. Upon searching the car, the police found a loaded firearm.
Santiago was indicted on August 16, 2006 and charged with one count of possessing a firearm as prohibited by 18 U.S.C. § 922(g)(1). He was not charged with home invasion or armed robbery. On October 17, 2006, Santiago pleaded guilty to the felon-in-possession charges. In its Presentence Investigation Report, the probation office recommended that Santiago's base offense level of 24 be increased by four levels in accordance with United States Sentencing Guidelines ("USSG") § 2K2.1(b)(6), because he possessed the firearm in connection with the planned unexecuted home invasion and armed robbery. Initially, there was some dispute as to whether the enhancement would apply because Santiago had not been charged with those crimes. The government intended to introduce the recorded telephone conversation at the sentencing hearing in support of its argument that the enhancement should apply. At the sentencing hearing on January 26, 2007, however, Santiago's counsel represented that he and his client had conferred and had decided not to contest the application of the enhancement:
[SANTIAGO'S COUNSEL]:.... [O]riginally we had anticipated that we would dispute the additional 4 point enhancement for relevant conduct.... But I spoke to Mr. Santiago about this, I spoke to him about the benefits of challenging relevant conduct, and I also explained to him the risk of challenging this relevant conduct. He consulted with his family and we decided because he wants to avoid the risk of being away from his family any longer than he has to that he will not concede -- we are conceding the he is subject to the 4 point enhancement.
THE COURT: This would be the [§]2k2.1(b)(6) enhancement, is that right, on Page 4, Line 125, and following?
[SANTIAGO'S COUNSEL]: Yes, your honor.
THE COURT: Okay. Does that obviate the need to listen to the tape?
[THE GOVERNMENT]: Yes, your honor. It is my understanding that the defendant has decided not to contest it. Now, whether that is because he fears losing acceptance of responsibility -- I mean, if he wants to contest it the government can show the evidence what would show that the enhancement is appropriate in this case.
Sentencing Hr'g Tr. 9:23-10:23.*fn4 Later on in the hearing, when asked if he would like to make a statement to the court before it imposed a sentence, Santiago requested to confer with his attorney. After he was given the opportunity to do so, he stated:
THE DEFENDANT:.... First of all, I want to say I am sorry to my family because I know they are -- you know, like she said, I know they are taking it harder than I am, you know?*fn5 And I really in the beginning, like my lawyer said, wanted to go a different route with this, I really did, but I talked with my family and I needed closure, so this is where I am at right now.
Sentencing Hr'g Tr. 20:18-24.
Based on the parties' representations that they were in agreement on the USSG § 2K2.1(b)(6) issue, the court increased Santiago's offense level from 24 to 28. After a three-level deduction under USSG § 3E1.1 for acceptance of responsibility, Santiago's offense level was 25, with a corresponding guidelines range of 84 to 105 months imprisonment. Taking into consideration his youth, ...