United States District Court, E.D. Virginia, Richmond Division
ROBERT E. PAYNE, Senior District Judge.
Paul Jackson Gibson, Jr., proceeding pro se, submitted this motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence ("§ 2255 Motion") (ECF No. 27). Gibson asserts entitlement to relief upon the following grounds:
Claim 1 Gibson failed to receive the effective assistance of counsel because counsel failed to file an appropriate objection at sentencing. (§ 2255 Mot. 5.) "Prior to entering into a plea agreement with the government, Petitioner stipulated to a specific type and quantity of Methamphetamine that would be used to convict and sentence him." (Id.) "[A]fter the plea was accepted by [P]etitioner, the type and amounts changed. Counsel did not oppose or file timely objections challenging the sentencing under those terms." (Id.)
Claim 2 Counsel failed to challenge the erroneous term of supervised release imposed by the Court. (Id. at 6.)
The Government has responded. (ECF No. 30.) Gibson has filed a reply. (ECF No. 33.) For the reasons set forth below, Gibson's claims will be dismissed.
I. PROCEDURAL HISTORY
On March 10, 2010, pursuant to a plea agreement, Gibson pled guilty to conspiracy to distribute a mixture and substance containing a detectable amount of methamphetamine. (Plea Agreement ¶ 1, ECF No. 14.) The Government made no promise or representation regarding what sentence Gibson would receive. (Id. ¶ 5.) Gibson acknowledged that by pleading guilty he faced up to twenty years of imprisonment "and at least three years of supervised release." (Id. ¶¶ 1, 5.) In the Statement of Facts, Gibson submitted in conjunction with the Plea Agreement, Gibson agreed that:
For purposes of relevant conduct... had the matter gone to trial, the United States could have proven beyond a reasonable doubt that from on or before April 22, 2009 and continuing up through and including June 2, 2009, the defendant did conspire to distribute... at least 30 grams, but less than 40 grams of methamphetamine, a Schedule II controlled substance.
(Statement of Facts ¶ 10, ECF No. 15.)
The Sentencing Guidelines distinguish between diluted and pure or "actual" methamphetamine. U.S. Sentencing Guidelines Manual § 2D1.1(c), n. (B) (2009) ("U.S.S.G."). Specifically, the Sentencing Guidelines provide:
The terms "PCP (actual)", "Amphetamine (actual)", and "Methamphetamine (actual)" refer to the weight of the controlled substance, itself, contained in the mixture or substance. For example, a mixture weighing 10 grams containing PCP at 50% purity contains 5 grams of PCP (actual). In the case of a mixture or substance containing PCP, amphetamine, or methamphetamine, use the offense level determined by the entire weight of the mixture or substance, or the offense level determined by the weight of the PCP (actual), amphetamine (actual), or methamphetamine (actual), whichever is greater.
Id. Prior to sentencing, the Probation Office prepared a Presentence Report wherein it recommended that, for purposes of relevant conduct, Gibson should be held accountable for 15.33 grams of actual methamphetamine. (Presentence Report ¶¶ 10-11.) The Presentence Report stated:
Based on the purity level reported by laboratory analysis for all of the drugs involved, the actual amount of methamphetamine was calculated to be 15.33 grams. For guideline purposes, the defendant's offense level should be 26 reflecting a drug weight of approximately 15.33 grams of actual methamphetamine, pursuant to the United States Sentencing Guidelines (U.S.S.G.) § 2D1.1(c)(7) and Note B of the drug table.
(Id. ¶ 11.) The Presentence Report further recommended awarding a two-level enhancement for obstruction of justice (id. Worksheet A, at 1), and subtracting three levels for Gibson's timely acceptance of responsibility (id. at Worksheet D, at 1), which resulted in a total offense level of 25. (Id.) Gibson had a criminal ...