United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JOHN F. GRADY, District Judge.
Pursuant to a written plea agreement, Feliciano Velazquez pleaded guilty to possessing, with intent to distribute, quantities of cocaine. He sold the cocaine to an undercover law enforcement agent in June 2011 and was arrested in July 2011 while transporting an additional quantity of cocaine that he intended to deliver to the same undercover agent. Velazquez was sentenced to a term of 46 months' imprisonment and three years' supervised release.
Velazquez has filed a pro se motion to vacate his sentence pursuant to 28 U.S.C. § 2255. He asserts two grounds for the motion. Ground One is that he instructed his attorney, Alexander Salerno, to file an appeal, but Salerno failed to do so. Ground Two is that Salerno rendered constitutionally ineffective assistance in connection with both the guilty plea and the sentencing.
Attached to the petitioner's motion are a memorandum of law and an affidavit in which he provides his version of what occurred.
We will discuss the petitioner's complaints in turn.
The Guilty Plea
In his affidavit, the petitioner states:
When the Judge imposed the sentence [of] a term of 46 months imprisonment and three years supervised release, I was clear and manifesting my disagreement and dissatisfaction to my counsel because said sentence received was absolutely opposed to his promise which he made to induce me to sign the Plea Agreement and to accept my culpability under by telling me that I should receive a term of 24 to 30 months imprisonment.
(Velazquez Aff. ¶ 6.)
The petitioner has the burden of proving the grounds of his § 2255 motion. In order to determine whether he has established that his attorney "induced" him to plead guilty by a promise that he would receive a sentence of 24 to 30 months' imprisonment, we look first at the transcript of the plea itself:
THE COURT: There's a difference between the amount of cocaine stated in the plea agreement on Page 4, which is 497.5 grams, and the amount that is referred to in the Guideline calculations, which is in excess of 500 grams. So there's a 3-gram difference. What accounts for that?
MR. SALERNO: Judge, I've explained to the defendant that the Count to which he pleads guilty is the 497.5-gram delivery or attempted delivery or possession with intent to deliver. The other relevant conduct places the amount of actual drugs over 500 grams.
THE COURT: Oh, I see. It's the relevant conduct that raises it over the 500.
MR. SALERNO: Yes, Judge. But there is no mandatory minimum on the -
THE COURT: I see.
MR. SALERNO: - on the -
THE COURT: I see.
MR. TZUR [Asst. U.S. Attorney]: That's correct, your Honor.
THE COURT: Thank you.
All right. Then let me explain to you then, Mr. Velazquez, what the possible penalties are that you ...