The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge
MEMORANDUM OPINION AND ORDER
In February 2005, a grand jury returned a 49-count indictment against 46 defendants, including Marvel Thompson ("Thompson"), stemming from their involvement in the Black Disciples drug-distribution network. On March 29, 2005, Thompson pleaded guilty to conspiracy to possess and distribute drugs. Subsequently, I sentenced him to 540 months in prison, a sentence affirmed by the Seventh Circuit. See United States v. White, 582 F.3d 787, 795--99 (7th Cir. 2009). On May 24, 2011, Thompson filed this Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. For the reasons stated, the motion is denied.
In his initial pro se § 2255 motion, Thompson asserted that his sentence must be vacated because: (1) the government breached plea agreements that it made with him; (2) his constitutional rights were violated by the drastic increase between the sentence of 108-135 months that he expected to receive, and the 540-month sentence imposed; (3) the government "sandbagged" him into pleading guilty and did not move to correct certain errors during Thompson's plea colloquy; and (4) he received ineffective assistance of counsel at the time he pleaded guilty, at sentencing, and on appeal. (Dkt. No. 1.) On June 10, 2011, Thompson filed a supplement elaborating on his claim of ineffective assistance. (Dkt. No. 4.) Subsequently, Thompson obtained counsel, who sought and was granted leave to file an amended memorandum in support of his motion. That memorandum incorporated Thompson's previous filings and included a new twist: that associates of Thompson's cooperated with the government in exchange for the government's agreement that it would seek a sentence of about 10 years in prison for Thompson. (Dkt. No. 23.) Thompson was a third-party beneficiary of these agreements, which the government breached, Thompson contends. He also contends that his attorney at sentencing and on appeal should have raised this argument. Thompson has included affidavits from the two associates supporting this argument.
B. Thompson's Plea Hearing
When Thompson appeared for his change-of-plea hearing on March 29, 2005, it was unclear whether he would enter a blind plea or enter into a written plea agreement. (Tr. of Change of Plea Hearing ("COP Hr'g") 3.) After a recess, Thompson informed me that he wanted to plead guilty, but did not want to plead guilty to all of the offenses spelled out in the plea agreement. (Id. at 9--10.) Rather, he only wanted to plead guilty to certain narcotics transactions involving co-defendants Donnell Jehan and Kenyatta Coates. (Id. at 22.) He likewise refused to acknowledge that he was at one time the king of the Black Disciples gang.*fn1 (Id.) Thompson entered a blind plea, with the relevant portions of the plea colloquy set forth below.
Under oath, Thompson said he was 36 years old, married, and had finished the eleventh or twelfth grade. (Id. at 7.) He had no difficulty reading or writing. (Id.) He was employed as a record producer and the owner of a construction company and restaurant. (Id.) He had not taken any medication or drugs in the last 24 hours, was in good physical health, and had no mental health issues. (Id. at 8.)
Initially, Thompson said that he had not had enough time to speak with his attorney, Mr. Jack Friedlander. When I said I would delay the change of plea hearing so he could do so, Thompson backtracked, saying "I had enough time to understand exactly what I'm dealing with." (Id. at 10--11.) Mr. Friedlander explained that he had spent some 100 hours consulting with Thompson and explaining the nature of the government's conspiracy charge. (Id. at 13.) Thompson said that he wanted to go ahead with the plea, and was satisfied with his attorney's advice. (Id. at 14.)
In response to my questioning, Thompson confirmed that he had read the superseding indictment, had discussed it with Mr. Friedlander, and understood the charges against him. (Id. at 14--15.) He said that he understood he had a right to trial by jury, a right to appointed counsel if he could not afford an attorney, and the right to plead not guilty. (Id. at 15.) Thompson affirmed that he knew he had a right to a speedy trial, to confront and cross-examine the witnesses against him, and the right to use the court's subpoena power to obtain the attendance of witnesses. (Id. at 16.) He said that he understood the presumption of innocence, the burden of proof, his right to testify, and the fact that no inference of guilt could be drawn from his failure to testify. (Id.)
Thompson said that he understood his right to a jury trial, or to a bench trial if all parties and the court agreed. (Id.) He understood his right to help select the jury, that a jury would have to consider each count of the indictment separately and reach a unanimous verdict, and that the verdict would have to be determined beyond a reasonable doubt. (Id. at 17.) He understood that if he was found guilty, he would have the right to appeal. (Id.) Thompson said he understood that he was giving up all of these rights by pleading guilty. (Id.)
The government then explained that the maximum statutory penalty was life in prison, with a mandatory minimum of at least 10 years in prison, a maximum fine of up to $4 million, and a term of supervised release of not less than five years up to and including life. (Id. at 18.) Thompson said that he understood the possible sentence. (Id.) I then asked him whether anyone had forced him to plead guilty, threatened him to cause him to plead guilty, or made any promises to cause him to plead guilty. (Id.) Thompson replied "no" to all of these questions, and said the decision to plead guilty was voluntary. (Id.) He said he understood that I would make the final decision as to what sentence he would receive. (Id. at 19.)
The government then gave its factual basis for the plea, but Thompson indicated he was not willing to plead guilty to all the conduct outlined. (Id. at 19--22.) Rather, he admitted that he sold approximately 29 kilograms of powder cocaine and one kilogram of heroin during 2004 to gang members Jehan and Coates, knowing that they planned to resell the drugs. (Id. at 22--24.) Because Thompson did not agree that he was guilty of all the allegations in the superseding indictment, I expressed concern that Thompson understood the effect of his guilty plea. (Id. at 27.) Mr. Friedlander explained that Thompson understood that he was entering a blind plea and that at sentencing the government would have to prove any additional acts attributable to him by a preponderance of the evidence. (Id.) Mr. Friedlander explained that Thompson understood that "the proactive work done by him and others for the government will have to be proven to Your Honor without any help of that being offered from the government." (Id.) Mr. Friedlander added:
And when you ask me have I explained all this to him, yes, I have. I've explained it to him, to his family on more than ten occasions, so he understands it. It's just he is a defendant who wants to plead guilty to what he did. (Id.)
Thompson agreed that he did understand this. (Id. at 28.) He then asked to see the indictment because the government had mentioned a shooting in its factual basis that was not in the indictment. (Id.) Mr. Friedlander explained that the indictment did not contain every act that Thompson allegedly committed, to which Thompson replied, "That's for sentencing, right?" (Id. at 29.) Mr. Friedlander affirmed that was correct. (Id.)
I then explained to Thompson that while he did not have to agree with the government's factual basis, he did need to know that if he pleaded guilty, the government would attempt to prove those acts at sentencing by a preponderance of the evidence, and that if it did so, I could consider those acts in imposing sentence. (Id. at 29.) Thompson acknowledged that he wanted to plead guilty, and I accepted the plea. (Id. at 31--32.)
C. Thompson's Sentence, Appeal, and Subsequent Proceedings
Thompson's presentence report put him in Criminal History Category I, with an adjusted offense level of 46, meaning that the advisory guideline sentence was life imprisonment. White, 582 F.3d at 795. As noted, I imposed a sentence of 540 months in prison. On appeal, Thompson argued that I committed several errors in the application of certain guidelines enhancements. The Seventh Circuit rejected all of these arguments and affirmed Thompson's sentence in all respects. See White, 582 F.3d at 795--98. In particular, the Seventh Circuit affirmed my finding that Thompson obstructed ...