WILLIAM D. STIEHL, District Judge.
Before the Court is petitioner Alejandro Villa-Gomez's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 2) and a supplement (Doc. 3). The Government has responded (Doc. 7), and petitioner has replied (Doc. 8). Petitioner claims that his Sixth Amendment right to effective assistance of counsel was violated. He says his attorney should have objected at petitioner's sentencing when the Court imposed a two-level enhancement for obstruction of justice. He also believes his attorney should have argued that the charges against petitioner in the indictment under Title 21 should be vacated. Petitioner further suggests that the reason he perjured himself at sentencing was that he did not understand the law and that he was given the wrong dose of insulin for his diabetes.
Petitioner pleaded guilty before this Court to one count of conspiracy to possess and distribute cocaine and two counts of distribution of cocaine. See 21 U.S.C. §§ 841(a)(1), 846. Before entering his guilty plea, petitioner signed a stipulation of facts with the Government admitting to the conduct that gave rise to the charges against him. He admitted to distributing cocaine, directly and through others, during the time periods charged in the superseding indictment. He admitted to distributing about 120 grams of cocaine on February 15, 2007, and he admitted to distributing another 20 grams of cocaine on April 18, 2008. He admitted that the total amount of cocaine he distributed was over 5 kilograms (Doc. 61, No. 09-CR-30100).
At petitioner's change-of-plea hearing, he testified that he had received a copy of the indictment, it had been translated for him, and that he had discussed it with his attorney. He agreed that he understood the maximum possible punishment on each charge, and that there was a mandatory minimum penalty of 10 years for the conspiracy charge. He also testified that he had been provided with a Spanish translation of his stipulation of facts, that it had been read and explained to him, and that he had discussed it with his attorney. He said everything in it was true and correct to the best of his knowledge. And he reiterated that he had done what the stipulation said. Given that testimony, the Court found that petitioner understood the stipulation and admitted it was true (Doc. 113, 14:8-15:23, No. 09-CR-30100). The Court went on to accept petitioner's plea of guilty.
At sentencing, however, petitioner contested a number of factual allegations, including that he had distributed over 5 kilograms of cocaine. After the Government presented evidence, petitioner's attorney stated that had advised petitioner not to testify and petitioner was heeding that advice (Doc. 116, 31:7-10, No. 09-CR-30100). The Court found by a preponderance of evidence that the amount of cocaine reasonably foreseeable to petitioner was more than 5 but less than 15 kilograms ( id., 43:1-22).
The Government then asked the Court to remove the three-level reduction being given to petitioner for acceptance of responsibility. The Government noted that petitioner was contesting his relevant offense conduct and even the actions making up his own counts of conviction. Petitioner's attorney opposed removing the reduction, suggesting that petitioner was only contesting the sentencing because he believed the $90, 000 that had been seized from him only translated to 4.5 kilograms of cocaine.
As the attorneys were making their arguments, petitioner said he wanted to make a statement. He was sworn in and put on the witness stand. He then proceeded to contradict his earlier admissions, including those in the stipulation of facts. He evaded the Government's questions and preposterously denied knowing that the $90, 000 confiscated from his car was for drugs. As the Seventh Circuit wrote about the sentencing:
He recanted a stipulation to his guilt and to the drug quantity that was even better than a jury's finding beyond a reasonable doubt. That stipulation was backed by drug transactions between Villa-Gomez and government informants, along with surveillance, voice recordings, information from his codefendant and others, and even Villa-Gomez's own post-arrest interviews. And yet at sentencing Villa-Gomez testified that he was not involved in any drug dealing and did nothing other than transport some currency of unknown origin-$90, 000 was seized from his car during the investigation-for a friend who might have been a drug dealer.
Villa-Gomez, 400 Fed.App'x at 106 (internal quotation and citation omitted).
After petitioner was questioned by the attorneys, the Government resumed its argument about acceptance of responsibility. It also asked that two points be added to petitioner's offense level for obstruction of justice for lying to the Court. At that point, petitioner's attorney asked for leave to withdraw due to ethical considerations, since he had previously advised his client not to testify. Petitioner said he did not want a new attorney, however, so leave to withdraw was denied.
The Court stated that it was "abundantly clear" that petitioner had perjured himself and not been truthful. The three-level reduction for acceptance of responsibility was removed and two levels were added for obstruction of justice. That rendered an offense level of 34 and a guidelines range of 151 to 188 months. The Court told petitioner that it had originally been inclined to sentence him at the low end of the guidelines range (which would have been the statutory minimum of 120 months). "However, " the Court continued, "your insistence in blatantly lying in front of this Court as part of these proceedings... is not something that I can ignore or set aside. You may have thought that you were out-smarting the system, but you didn't succeed" ( id., 59:5-13). Petitioner was sentenced to 168 months in prison for each of the three counts, to run concurrently.
Petitioner appealed, but his attorney believed the appeal was frivolous and moved to withdraw. The Seventh Circuit agreed and affirmed petitioner's conviction and ...