The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION & ORDER
Petitioner Julius Browne moves the court to vacate his conviction and
sentence pursuant to 28 U.S.C. § 2255. Browne challenges his
conviction and sentence on four grounds. He first argues that his
defense counsel was ineffective, in violation of the Sixth Amendment,
for failing to file a notice of appeal or to discuss the possibility
of an appeal with him. Second, he argues that the government breached
his plea agreement by arguing for a sentence outside of the guideline
range agreed to by the parties. Third, he argues that his counsel was
ineffective for failing to seek relief under the "safety valve"
provision of the Sentencing Guidelines and for failing to arrange for
him to make a proffer of information to the government. Fourth, he
argues that his counsel was ineffective for failing to argue for a
minor-role adjustment to his offense-level calculation.*fn1
The court concludes that Browne's claims lack merit and
denies the motion.
On December 12, 2006, a grand jury charged Browne and a co-defendant with 50 counts of drug distribution and money laundering. A grand jury returned a 53-count superseding indictment against the defendants on October 2, 2007, charging Browne with conspiracy to possess with intent to distribute and conspiracy to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § 846; conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h); and money laundering, in violation of 21 U.S.C. § 1956(a)(1)(B)(i). After the indictment, Browne fled to Mexico, where he lived for two years before being returned to the United States by federal agents.
Browne was arrested on March 27, 2009. (Return of Warrant, Criminal Case No. 06 CR 0932-1, ECF No. 86.) On April 22, 2010, he entered a plea of guilty to Count One of the superseding indictment-conspiracy to possess with intent to distribute and conspiracy to distribute five kilograms or more of cocaine. He also agreed to the entry of a forfeiture judgment. (Plea Agreement, Criminal Case No. 06 CR 0932-1, ECF No. 129.) In his plea agreement, Browne admitted that he purchased multi-kilogram quantities of cocaine for resale in the Chicago area. According to the plea agreement, narcotics proceeds were recovered three times from Browne, each time in the amount of approximately $200,000 to $300,000. (Id. at 3.) Browne was personally responsible for between 50 and 150 kilograms of cocaine. (Id. at 4.)
The plea agreement stated that the statutory mandatory-minimum sentence for Count One was ten years. The Sentencing Guidelines calculation set out in the agreement stated that the base offense level for the drug quantity involved in Count One was 36. It further stated, "The government contends, and defendant does not agree, that he qualifies for a 2 level enhancement under Guideline §3C1.1, due to his flight from the United States to Mexico." (Id. at 6.) The parties agreed that Browne qualified for a two-level reduction in offense level for acceptance of personal responsibility pursuant to Guideline §3E1.1(a), and an additional one-level reduction pursuant to §3E1.1(b), for timely notifying the government of his intention to enter a guilty plea.
(Id. at 6-7.) Browne's criminal-history category was I. (Id. at 7.) The agreement stated that the anticipated guideline range in the government's view was 168-210 months' imprisonment, while in the defendant's view, it was 135-168 months' imprisonment. (Id. at 7-8.) The government agreed to recommend that a sentence be imposed within the applicable guideline range. (Id. at 9.) The government also agreed not to seek an enhancement of the sentence on the basis of a prior conviction for a felony drug offense. (Id. at 10.) Browne agreed to a forfeiture judgment in the amount of $200,000. (Id.)
The plea agreement further provided that Browne waived his rights to trial and to appeal his conviction and sentence. He also waived "his right to challenge his conviction and sentence, and the manner in which the sentence was determined, and (in any case in which the term of imprisonment and fine are within the maximums provided by statute) his attorney's alleged failure or refusal to file a notice of appeal, in any collateral attack or future challenge, including but not limited to a motion brought under Title 28, United States Code, Section 2255." (Id. at 14.) The waiver did "not apply to a claim of involuntariness, or ineffective assistance of counsel, which relates directly to this waiver or to its negotiation[.]" (Id.)
In his sentencing memorandum, Browne's counsel acknowledged that the applicable guideline range was 168 to 210 months of imprisonment, because the two-point enhancement for obstruction of justice applied, based on Browne's post-indictment travel to Mexico. Browne's counsel argued, however, that the court should depart from the guideline range to impose a mandatory-minimum sentence of 120 months' imprisonment. (Def.'s Sentencing Mem. 2-3, Criminal Case No. 06 CR 0932-1, ECF No. 135.) On August 18, 2010, the court sentenced Browne to 144 months' imprisonment. Browne did not file a direct appeal. He filed this motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on August 23, 2011, but his signature on the motion is dated August 15, 2011, and the court assumes that the motion was timely filed. The government responded to the motion on January 13, 2012. Browne was granted an extension of time to file a reply, but none was filed. The court therefore considers the motion fully briefed.
Pursuant to 28 U.S.C. § 2255, a person convicted of a federal crime may move to vacate, set aside, or correct his sentence "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). If the petition is successful, "the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." Id. § 2255(b). Post-conviction relief is "an extraordinary remedy" because a petitioner has already "had an opportunity for full process." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). Relief "is appropriate only for 'an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice.'" Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004) (quoting Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991)). In deciding a § 2255 motion, the court views the evidence "in a light most favorable to the government." United States v. Galati, 230 F.3d 254, 258 (7th Cir. 2000).
Browne challenges his conviction and sentence, claiming that, for various reasons, his counsel was ineffective, and that the government breached ...