ORDER DENYING 28 U.S.C. § 2255 MOTION

WILEY Y. DANIEL, Senior District Judge.

I. INTRODUCTION

This matter is before the Court on Movant Michael Samuel Monroe II's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 filed February 8, 2016. The Government filed an Answer to the motion on March 15, 2016, and a Reply was filed on March 28, 2016. On October 18, 2016, Mr. Monroe filed a letter checking on the status of his motion and requesting transcripts "so I can balance my options further if necessary." (ECF No. 1397 at 1.)

I must construe liberally Mr. Monroe's filings because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, I should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. After reviewing the entire file, I find that an evidentiary hearing is not necessary as Mr. Monroe's claims are legal issues that are resolvable solely on the basis of the existing record. Hooks v. Workman, 606 F.3d 715, 731 (10th Cir. 2010); see also United States v. Fields, 565 F.3d 290, 298 (5th Cir. 2009) (if, based on the record, a court can conclude as a matter of law that the movant cannot establish the elements necessary to state a valid constitutional claim, an evidentiary hearing is not necessary). Since I find that the issues can be resolved on the existing record, I also deny Mr. Monroe's request for transcripts. For the reasons stated below, Mr. Monroe's 2255 motion is denied.

II. FACTUAL AND PROCEDURAL BACKGROUND

Mr. Monroe was charged on January 26, 2012, in a multiple-count indictment with a variety of cocaine-related offense. An Information was filed on May 13, 2014, charging Mr. Monroe in Count One with knowingly and intentionally distributing and possessing with the intent to distribute 280 grams or more of a mixture and substance containing a detectable amount of cocaine base (crack cocaine). (ECF No. 1063.) Also on May 13, 2014, Mr. Monroe pleaded guilty to this offense. (ECF Nos. 1063, 1066 at 2, ¶ 1.) He was sentenced to 120 months of imprisonment, the mandatory minimum sentence for the crime to which he pled guilty. (ECF No. 1151). Judgment was entered on January 28, 2015. (Id.)

This is Mr. Monroe's first § 2255 motion. He has met the procedural requirements of § 2255 for this Court to rule on the issues he raises in his motion. First, it appears that Mr. Monroe has not pursued any other federal remedies, including any prior post-conviction motions. See Rule 5(b) of the Rules Governing Section 2255 Cases. Second, his motion was submitted within the one-year statute of limitations set forth under 28 U.S.C. § 2255(f)(1).

III. ANALYSIS

Mr. Monroe's § 2255 motion and brief in support of the motion assert two claims of ineffective assistance of counsel: (1) counsel did not argue at sentencing for a drug quantity of 154 grams of crack cocaine, and should have objected to 280 grams; and (2) counsel did not file a Notice of Appeal. (See ECF No. 1275, at 4, 5; ECF No. 1275-1.) Mr. Monroe's ineffective assistance of counsel arguments must be addressed under the test set forth in Strickland v. Washington, 466 U.S. 668 (1984).

The Supreme Court has established a two-prong test to review ineffective assistance of counsel claims. The movant must demonstrate both that counsel's performance fell below an objective standard of reasonableness and that counsel's deficient performance was prejudicial. Strickland, 466 U.S. at 687. Courts are free to address these prongs in any order. Byrd v. Workman, 645 F.3d 1159, 1168 (10th Cir. 2011).

With respect to the first prong, requiring Mr. Monroe to demonstrate that his counsel's representation was constitutionally deficient by falling "below an objective standard of reasonableness", this standard is "highly demanding" for the 2255 movant. Kimmelman v. Morrison, 477 U.S. 365, 382 (1986). He must show "that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy." Id. at 381 (citation omitted). The reasonableness is evaluated from the perspective of the attorney at the time of the claimed error. Id. "For counsel's actions to rise to the level of constitutional ineffectiveness, his strategic decisions must have been `completely unreasonable, not merely wrong, so that [they] bear no relationship to a possible defense strategy.'" Fox v. Ward, 200 F.3d 1286, 1296 (10th Cir. 2000) (quotation and internal quotation marks omitted). "Judicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689. There is a "strong presumption" that counsel's performance falls within the range of "reasonable professional assistance." Id.; see also Byrd, 645 F.3d at 1168 ("`[c]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. . . .'") (quotation omitted).

In order to demonstrate the second prong, Mr. Monroe must establish "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. If the movant fails to satisfy either prong of the two-part Strickland test, the ineffective-assistance-of-counsel claims must be dismissed. Id. at 697.

1. Counsel's Failure to Object to 280 Grams of Crack Cocaine and Failure to Argue for a Drug Quantity of 154 Grams

Mr. Monroe first argues that his counsel was ineffective at sentencing because he failed to determine that the drug quantity of 280 grams or more of crack cocaine which triggered the statutory ten year mandatory minimum sentence was incorrect. Instead, Mr. Monroe argues that the actual and correct drug amount was 154 grams as found by the Grand Jury. It is contended that counsel should have recognized this and objected to the 280 gram quantity, and that this would have resulted in a lesser sentence.1 Mr. Monroe further asserts that the facts and record do not demonstrate or establish that he was directly involved with 280 grams of crack cocaine, only that he was involved and accountable for 154 grams. (See Exs. C and D to Mem. of Facts and Law in Supp. of Movant's 28 U.S.C. § 2255 Mot.) Therefore, he asserts that the 280 grams of crack cocaine stipulated in the one-count information was clearly erroneous, that the court failed to make particularized findings regarding the drug amount, and that this affected the outcome of the proceeding. He argues that under Alleyne v. United States, 133 S.Ct. 2151 (2013), "the imposition of a statutory mandatory minimum sentence requires that the drug quantity be proved beyond a reasonable doubt or admitted by the Defendant." (Mem. Br. at 5.)

Turning to my analysis, the problem with Mr. Monroe's argument is that he did admit that he was directly involved with 280 or more grams of crack cocaine. He agreed to this both in the Plea Agreement and at the Change of Plea Hearing. Thus, he agreed to plead guilty to "knowingly and intentionally distribut[ing] and possess[ing] with the intent to distribute 280 grams or more of a mixture and substance containing a detectable amount of cocaine base, a Schedule II Controlled Substance, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii)." (ECF Nos. 1063. 1066 at 2, ¶ 1.) Mr. Monroe also stipulated to the following facts in paragraph 23 of the Plea Agreement, "The parties agree that during the course of the offense, the defendant's relevant offense conduct, including the reasonably foreseeable conduct of others whom he was engaged in the narcotics business with, included at least 280 grams of cocaine base but less than 840 grams of cocaine base. (Id. at 7) (emphasis added.) In exchange, the government agreed to dismiss all remaining counts of the indictment against him at the time of sentencing. (ECF No. 1066 at 2, ¶ 2.)

Also, at the Change of Plea Hearing, Mr. Monroe was asked: "[H]ow do you wish to plead to Count 1 of the Information, which charges that . . . you, Michael Monroe, did knowingly and intentionally distribute and possess with the intent to distribute 280 grams or more of a mixture and substance containing a detectable amount of cocaine base, also known as crack cocaine . . ., guilty or not guilty?" He responded "Guilty." (ECF No. 1309 at 4:15-25) (emphasis added.) In addition, this Court specifically questioned Mr. Monroe at the Change of Plea hearing to make sure he understood that, by way of his plea of guilty, he was agreeing that the relevant conduct in this case involved at least 280 grams of cocaine base. Mr. Monroe stated he did agree that the relevant conduct involved at least 280 grams. (Id. at 19:8-25; 20:1.)

The government was required to prove drug quantity at sentencing only by a preponderance of the evidence. United States v. Topete-Plascencia, 351 F.3d 454, 459 (10th Cir. 2003). Mr. Monroe was responsible for all "relevant conduct", defined with respect to offenses involving contraband (including controlled substances), as "all quantities of contraband which [the defendant] was directly involved and, in the case of a jointly undertaken criminal activity, all reasonably foreseeable quantities of contraband that were within the scope of the criminal activity that he jointly undertook." U.S.S.G. § 1B1.3, App. Note 2. The facts as stipulated in the plea agreement, and reinforced by Mr. Monroe during his testimony at the Change of Plea hearing, provided more than a mere preponderance of evidence from which this Court could properly find that Mr. Monroe should be held accountable for 280 grams of crack cocaine.

As noted in United States v. Bridges, 189 F.Supp.2d 1226, 1231 (D. Kan. 2002), "defendant's stipulation to the proper amount of drugs attributable to him satisfied the government's burden of establishing the quantity of drugs for which Defendant was responsible". Moreover, "[t]he court employed a quantity agreed to by the parties, which had a reasonable factual basis listed in the presentence investigation report." Id.; see also United States v. Harris, 543 F. App'x 587, 589 (7th Cir. 2013) (unpublished) ("By pleading guilty and admitting the amount[] alleged, [the defendant] waived his right to a jury determination and also established that amount beyond a reasonable doubt"); United States v. Tucker, 298 F. App'x 794, 801 (10th Cir. 2008) (finding that counsel's failure to challenge the knowledge requirement was reasonable in light of Tucker's express admission in the plea agreement satisfying the knowledge requirement"); United States v. Warneke, 310 F.3d 542, 550 (7th Cir. 2002) ("An admission is even better than a jury's finding beyond a reasonable doubt; it removes all contest from the case.").2

Mr. Monroe complains, however, that sentencing him to a statutory mandatory minimum period of incarceration violated Alleyne v. United States, 133 S.Ct. 2151 (2013), which found "that a fact triggering a mandatory minimum alters the prescribed range of sentences to which a defendant is exposed". Id. at 2160. Moreover, it stated that "when a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury." Id. at 2162. This includes "facts that increase mandatory minimum sentences", which must be found by the jury beyond a reasonable doubt. Id. at 2163.

The Supreme Court specifically noted in Alleyne, however, that its ruling "does not mean that any fact that influences judicial discretion must be found by a jury." Id. at 2163. The Alleyne case involved a case that had gone to a jury trial. The Alleyne Court recognized that "broad sentencing discretion, informed by judicial factfinding, does not violate the Sixth Amendment." Id. Thus, a defendant's admissions in a plea agreement and at the plea hearing can support an inference of drug quantity beyond a reasonable doubt. See United States v. Yancy, 725 F.3d 596, 601-02 (6th Cir. 2013) (explaining that Alleyne does not alter the rule that, for statutory enhancements, defendant's guilty plea and admissions during plea colloquy relieve government of burden of proving facts to jury beyond a reasonable doubt); Harris, 543 F. App'x at 589; see also United States v. Harakaly, 734 F.3d 88, 96-97 (1st Cir. 2013).

Mr. Monroe also complains that the one-count information to which he pled guilty did not charge him with a conspiracy. Nonetheless, the court may calculate the defendant's offense level based upon not only the drugs the defendant personally distributed or possessed with intent to distribute, but also all of the drug transactions undertaken by the operation that he was aware of or could have foreseen. See United States v. Duque, 182 F.3d 933 (Table), 1999 WL 381116, *4 (10th Cir. June 11, 1999) (unpublished).

Based on Mr. Monroe's own admissions in the Plea Agreement and in the Change of Plea Hearing, Mr. Monroe cannot establish that his counsel's performance fell below an objective standard of reasonableness or that he was prejudiced by his counsel's actions. This Court acknowledged at sentencing that Mr. Monroe knowingly and voluntarily pled guilty, and that Mr. Monroe admitted in his plea agreement and at the Change of Plea hearing that the relevant conduct involved 280 grams. (ECF No. 1310 at 11-17.) If counsel had objected at sentencing to 280 grams of crack cocaine, this Court would have readily attributed 280 grams to Mr. Monroe given his agreement to that amount. Mr. Monroe's relevant conduct involving 280 grams made the mandatory minimum sentence of 120 months of imprisonment applicable to him. Accordingly, even if counsel was deficient in failing to object to the drug quantity amount, this deficiency could not have affected the outcome of Mr. Monroe's sentencing and Mr. Monroe was not prejudiced.

Finally, I note that Mr. Monroe does not challenge the validity of the plea agreement or request that it be set aside. Thus, he does not argue that the agreement was entered into as the result of coercion, or that it was not entered into knowingly and voluntarily. However, given Mr. Monroe's statements at the Change of Plea hearing that he was familiar with the terms of the plea agreement, including the stipulation to the drug amount of 280 grams or more of cocaine base and that he wanted to plead guilty, the "admissions were his own" and there was no coercion. See United States v. Hutto, 198 F. App'x 715, 718 (10th Cir. 2006). Additionally, he presents no evidence that he was unaware of the stipulations in the plea agreement or disagreed with them such that it rendered his guilty plea unknowing or involuntary. See United States v. Bishop, 529 F. App'x 910, 913 n. 1 (10th Cir. 2013).

Based upon the foregoing, I find that Mr. Monroe's first claim of ineffective assistance of counsel must be denied.

2. Counsel's Failure to File a Notice of Appeal

Mr. Monroe next argues that counsel's performance was deficient in failing to file a Notice of Appeal. He asserts that he asked counsel to file a Notice of Appeal, and that if the appeal had been filed, he could have successfully contested the drug amount that triggered the ten year mandatory minimum sentence. I note that the United States Supreme Court has held that Strickland's deficient performance prong is met when a defendant's lawyer disregards a client's specific instructions to appeal. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000).

Even if I assume based on Roe that the first prong of Strickland is satisfied, I find that Mr. Monroe has failed to demonstrate the second prong, i.e., that there is a "reasonable probability" that the outcome of the proceeding might have been different. That is because he waived his right to appeal.

Thus, in the plea agreement he agreed that he was "knowingly and voluntarily waiv[ing] the right to appeal any matter in connection with this prosecution, conviction, or sentence unless it meets one of the following three criteria: (1) the sentence imposed is above the maximum penalty provided in the statute of conviction, (2) the Court, after determining the otherwise applicable sentencing guideline range, either departs or varies upwardly, or (3) the Court determines that the total offense level is greater than 27 (if the Court grants the adjustment contemplated in paragraph 26(c) of this agreement) or 29 (if the Court denies the adjustment) and imposes a sentence based upon that offense level determination." (ECF No. 1066 at 2-3, ¶ 4.) He also agreed that he was "knowingly and voluntarily waiv[ing] the right to appeal the manner in which the sentence is determined on grounds set forth in 18 U.S.C. § 3742." (Id. at 3, ¶ 5.) The parties conceded, however, that the waiver provision would not prevent Mr. Monroe from seeking relief otherwise available if there is a claim he was denied the effective assistance of counsel. (Id.) Thus, while he was not precluded from filing this § 2255 motion, the waiver of appeal would not allow an appeal unless one of the three exceptions in the waiver was present.

I find that none of these exceptions is met. Thus, the sentence imposed was not above the maximum penalty provided in the statute of conviction. Mr. Monroe pled guilty to "Distribution and Possession with the Intent to Distribute 280 grams or more of . . . cocaine base (crack cocaine)" in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii). (ECF No. 1066 at 2.) The maximum penalty for a conviction under 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii) is life imprisonment. See 21 U.S.C. § 841(b)(1)(A). Mr. Monroe received the minimum period of incarceration permissible based on the drug amount he stipulated to, namely, ten years or 120 months. (See ECF No. 1066 at 2; see also ECF No. 1151.) Mr. Monroe's sentence of 120 months does not exceed the statutory maximum and, thus, does not constitute an exception to the appellate waiver.

Second, after determining the otherwise applicable sentencing guideline range, this Court did not either depart or vary upwardly. Rather, Mr. Monroe received the mandatory minimum sentence. Such a sentence, by definition, does not constitute an upward departure or upward variance. See, e.g., United States v. Wheeler, 128 F. App'x 58, 59 (10th Cir. Apr. 11, 2005) (unpublished) (decision to depart upward from statutory mandatory minimum sentence constitutes an upward departure). Third, this Court did not determine that the total offense level was greater than 27. (See ECF No. 1151 at 7, Part III.) As a consequence, there was no basis for defense counsel to file a Notice of Appeal, and any appeal that would have been filed likely would have been dismissed.

I note that when assessing the enforceability of a plea agreement containing a waiver of rights, the Tenth Circuit must determine: (1) "whether the disputed [issue] falls within the scope of the appellate waiver"; (2) "whether the defendant knowingly and voluntarily waived his appellate rights"; and (3) "whether enforcing the waiver would result in a miscarriage of justice." United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004). Here, Mr. Monroe has not shown that the disputed issues fall within the scope of the appellate waiver. Further, he has not argued or shown that the plea agreement with the waiver of his appellate rights was entered into unknowingly or involuntarily. Finally, he has not shown or argued that enforcing the waiver would result in a miscarriage of justice. Thus, the Waiver of Appeal likely would have been upheld by the Tenth Circuit and the appeal dismissed. Thus, Mr. Monroe cannot establish "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.

Based upon the foregoing, I find that Mr. Monroe has not met his burden of demonstrating ineffective assistance of counsel as to his second claim of ineffective assistance of counsel.

IV. CONCLUSION

I find from the foregoing that Mr. Monroe has not shown ineffective assistance of counsel and that his § 2255 motion must be denied. It is therefore

ORDERED that Movant Michael Samuel Monroe II's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 filed February 8, 2016 (ECF No. 1275) is DENIED. It is

FURTHER ORDERED that Mr. Monroe's letter of October 18, 2016, requesting transcripts (ECF No. 1397) is DENIED. Finally, it is

ORDERED that no certificate of appealability will issue because Mr. Monroe has not made a substantial showing of the denial of a constitutional right or a substantial showing that jurists of reason would find it debatable whether the procedural ruling is correct and whether the underlying claim has constitutional merit.