ORDER AND OPINION

MICHELLE CHILDS, District Judge.

This matter is before the court on Petitioner Kelvin Dewayne Groves's ("Petitioner") Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("Motion to Vacate") Pursuant to 28 U.S.C. § 2255. (ECF No. 681.) The Government responded with a Motion for Summary Judgment (ECF Nos. 694, 695) and Petitioner filed a Response (ECF No. 699). For the following reasons, the court DENIES Petitioner's Motion to Vacate (ECF No. 681) and GRANTS the Government's Motion for Summary Judgment (ECF No. 695).

I. JURISDICTION

This court has jurisdiction over this matter pursuant to 28 U.S.C. § 2255, which states that a federal district court has jurisdiction to entertain a § 2255 petition when the petitioner is in custody under the sentence of a federal court.

II. RELEVANT BACKGROUND TO THE PENDING MOTION

On March 13, 2012, a federal grand jury returned a Second Superseding Indictment, charging Petitioner, inter alia, with conspiracy to possess and distribute five kilograms or more of cocaine and twenty-eight grams or more of cocaine base.1 (See ECF No. 290.) On November 6, 2012, pursuant to a written Plea Agreement, Petitioner pleaded guilty to conspiracy to possess and distribute cocaine and cocaine base. (See ECF No. 517.) The Presentence Investigation Report ("PSR") indicates that Petitioner's advisory guideline range based on a Total Offense Level of 23 and a Criminal History Category of II was 51-63 months imprisonment. (See ECF No. 600 at 30 ¶ 182.) At the sentencing hearing held on February 21, 2013, the court stated that:

(ECF No. 690 at 3-4.) The addendum to the PSR demonstrates that Petitioner's counsel filed objections challenging the applicable drug weight and firearm enhancement. (See ECF No. 600-1.) Additionally, on February 19, 2013, Petitioner's counsel filed a Motion for Downward Variance from the Calculated Guidelines Level. (ECF No. 623.)

At the sentencing hearing, Petitioner's counsel withdrew her objections. (See ECF No. 690 at 2-3.) The sentencing transcript indicates that the court granted Petitioner's counsel's variance, which resulted in a 2-level offense reduction and a range of 41-51 months imprisonment. (See id. at 2.) The court accepted Petitioner's Plea Agreement and sentenced him to 41 months imprisonment. (ECF No. 690.) Judgment was entered on the District Court docket on February 22, 2013. (ECF No. 634.) Petitioner did not file a direct appeal.

On May 21, 2013, Petitioner filed a "Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 2241," wherein he sought relief from a two-point gun enhancement, maintaining that a firearm was not involved in his offense. Groves v. Atkinson, 5:13-cv-01367-TMC, ECF No. 1 (D.S.C. May 21, 2013). Upon review, United States District Court Judge Timothy M. Cain issued an Order determining that Petitioner's § 2241 motion be re-characterized as a § 2255 motion. Groves v. Atkinson, 5:13-cv-01367-TMC, ECF No. 28 (D.S.C. August 5, 2013). On August 5, 2013, Petitioner's now re-characterized Motion to Vacate was docketed by the court. (ECF No. 681.)

III. LEGAL STANDARD

Summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is "material" if proof of its existence or non-existence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248-49 (1986). In ruling on a motion for summary judgment, a court must view the evidence in the light most favorable to the non-moving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990). The non-moving party may not oppose a motion for summary judgment with mere allegations or denial of the movant's pleading, but instead must "set forth specific facts" demonstrating a genuine issue for trial. Fed. R. Civ. P. 56(e); see Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Shealy v. Winston, 929 F.2d 1009, 1012 (4th Cir. 1991). "Mere unsupported speculation . . . is not enough to defeat a summary judgment motion." Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995).

A prisoner in federal custody under sentence of a federal court may petition the court that imposed the sentence to vacate, set aside or correct the sentence. See 28 U.S.C. § 2255. The prisoner may be entitled to relief upon a showing: (1) that the sentence was imposed in violation of the Constitution or laws of the United States; (2) that the court was without jurisdiction to impose such sentence; (3) that the sentence was in excess of the maximum authorized by law; and (4) that the sentence is otherwise subject to collateral attack. Id. Additionally, a claim of ineffective assistance of counsel may properly be raised in a § 2255 motion. See United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999) (citation omitted).

To succeed on a claim of ineffective assistance of counsel, a petitioner must show that counsel's performance fell below an objective standard of reasonableness and that counsel's deficient performance was prejudicial. See United States v. Brown, 292 F. App'x 250, 251-52 (4th Cir. 2008) (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). "Under the first prong of Strickland, a petitioner must demonstrate that counsel's performance `fell below an objective standard of reasonableness' under prevailing professional norms." Id. (citing Strickland, 466 U.S. at 688). A court's scrutiny of counsel's performance is highly deferential. See Strickland, 466 U.S. at 689-90 (recognizing that "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment").

"To satisfy the second prong of Strickland, a petitioner must show `a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Brown, 292 F. App'x at 252 (citing Strickland, 466 U.S. at 694). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.

IV. ANALYSIS

In his Motion to Vacate, Petitioner maintains that the two-level firearm enhancement applied in the calculation of his sentence is in violation of the factors set out in 18 U.S.C. § 3553. (ECF No. 681.) Specifically, Petitioner argues that the enhancement should not apply because there was no visible possession of a firearm during the commission of the crime and that he does not have a history of possessing firearms.2 (See id. at 7.) The court disagrees.

Upon review, the court finds that Petitioner's claim is barred by his plea agreement and is substantively without merit. The United States Court of Appeals for the Fourth Circuit has held that a criminal defendant may waive the right to appeal his sentence in a plea agreement. See, e.g., United States v. Johnson, 410 F.3d 137, 149-53 (4th Cir. 2005); United States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). A waiver-of-appeal provision in a plea agreement is enforceable, so long as it is the result of a knowing and intelligent decision to forgo an appeal. See United States v. Cohen, 459 F.3d 490, 494 (4th Cir. 2006). "Although this determination is often made based on the adequacy of the plea colloquy—specifically, whether the district court questioned the defendant about the appeal waiver—the issue ultimately is `evaluated by reference to the totality of the circumstances.'" See United States v. Blick, 408 F.3d 162, 169 (4th Cir. 2005) (quoting United States v. General, 278 F.3d 389, 400 (4th Cir. 2002)).

The record indicates that Petitioner and the Government entered into a written Plea Agreement which this court ultimately approved. (See ECF No. 690 at 9.) At Petitioner's change of plea hearing, the Government summarized Petitioner's Plea Agreement as follows:

(ECF No. 691 at 30-31.) Thereafter, the court reviewed with Petitioner the offenses charged and questioned him regarding his understanding of the proceedings and the rights he was waiving by pleading guilty. (See id. at 31.) Petitioner responded that his plea was voluntary and agreed with the factual basis underlying his plea. (See id. at 31-43.) Having reviewed the record, the court finds that Petitioner knowingly and intelligently waived his right to appeal his sentence. Accordingly, Petitioner's claim is barred.

Furthermore, Petitioner's claim warrants denial even when considered on the merits. Petitioner's claim is based on a misunderstanding of the appropriate standard for the application of the United States Sentencing Guidelines Manual ("USSG") § 2D1.1(b)(1). Application Note 11(A) in the Commentary for § 2D1.1(b)(1) provides that two level firearm enhancement "should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense." Moore v. United States, Crim. No. 4:10-cr-00762-TLW, 2013 WL 5819276, at *3 (D.S.C. Oct. 29, 2013) (quoting USSG, Guidelines Manual, § 2D1.1, App. Note 11(A) (2012)). "The Fourth Circuit has stated that their `decisions strongly support the proposition that the proximity of narcotics to weapons is sufficient to warrant a Section 2D1.1(b)(1) enhancement.'" Moore, 2013 WL 5819276, at *3 (quoting United States v. Harris, 128 F.3d 850, 852-54 (4th Cir. 1997)).

Here, the PSR indicates that the investigation into this conspiracy led to the discovery of a mobile home used as a cook house for the conversion of powder cocaine into crack cocaine. (ECF No. 600 at 9-10 ¶¶ 34-39; ECF No. 691 at 37-38.) Several members of the conspiracy, including Petitioner, were present at the location, and were arrested while attempting to flee. (ECF No. 691 at 38-39; ECF No. 600 at 10 ¶ 36 (stating that while attempting to flee, Petitioner discarded 18.64 grams of crack cocaine).) The investigation resulted in the discovery of 57.08 grams of crack cocaine, 1,409.85 grams of cocaine, six firearms, and $46,782.00. (See ECF No. 600 at 9-10 ¶¶ 34-39; ECF No. 691 at 37-38.) Additionally, the investigation revealed that Petitioner was familiar with the mobile home. (ECF No. 691 at 37-38.) Finally, the transcript at Petitioner's change of plea hearing provides that:

(ECF No. 691 at 38.) Neither the record nor the relevant authority supports a finding that it was "clearly improbable" that the firearms, which were found in a location where significant quantities of drugs were discovered and distributed, were connected with the offense. Accordingly, Petitioner's claim is without merit.

V. CONCLUSION

For the following reasons, the court DENIES Petitioner's Motion to Vacate (ECF No. 681) and GRANTS the Government's Motion for Summary Judgment (ECF No. 695).

CERTIFICATE OF APPEALABILITY

A certificate of appealability may issue only if the applicant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c). A prisoner satisfies this standard by demonstrating that reasonable jurists would find this court's assessment of his constitutional claims is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. See, e.g., Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). In this matter, the legal standard for the issuance of a certificate of appealability has not been met. Therefore, the court DENIES the certificate of appealability.

IT IS SO ORDERED.