SUSAN D. WIGENTON, District Judge.
Presently before the Court is the motion of Victor Espada ("Petitioner") to vacate, set aside, or correct his sentence brought pursuant to 28 U.S.C. § 2255. (ECF No. 1). Petitioner filed his motion on or about November 25, 2013. (ECF No. 1). Following this Court's order to answer, the Government filed a response (ECF No. 7). Petitioner did not file a reply. For the following reasons, this Court will deny Petitioner's motion to vacate his sentence, and will deny Petitioner a certificate of appealability.
On October 24, 2011, Petitioner, Victor Espada, was indicted and charged with knowingly and intentionally conspiring to distribute and possess with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. §§ 841(a) and (b)(1)(B) and attempting to distribute and possess with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). (Document 2 attached to ECF No. 7). Following his indictment, Petitioner entered into a plea agreement with the Government under which he would plead guilty to conspiracy to possess more than 500 grams of cocaine. (Document 1 attached to ECF No. 1). In that agreement, Petitioner was directly informed that this guilty plea "carries a statutory minimum prison sentence of 5 years, a statutory maximum prison sentence of 40 years" and appropriate fines. (Id. at 2). Petitioner was also informed in the agreement that his sentence would be "within the sole discretion of the sentencing judge, subject to the provisions of the Sentencing Reform Act, 18 U.S.C. § 3551-3742, and the sentencing judge's consideration of the United States Sentencing Guidelines [which] are advisory, not mandatory." (Id.) The agreement also stated that the sentencing judge "may impose any reasonable sentence up to and including the statutory maximum." (Id.). The plea agreement also included an agreed upon guidelines calculation of 27, including reductions for acceptance of responsibility and enhancements for possession of a firearm, resulting in a recommended sentence of 70 to 87 months imprisonment. (Id. at 8-9).
On February 28, 2012, Petitioner appeared before this Court to enter a plea of guilty. (See Document 7 attached to ECF No. 7). After determining that Petitioner had discussed his plea with counsel to his satisfaction and was capable of understanding proceedings with the aid of his interpreter, thus Court conducted the following colloquy with Petitioner:
(Document 7 attached to ECF No. 7 at 4-13). This Court thus accepted Petitioner's knowing and voluntary plea of guilty in this matter.
Following his guilty plea, Petitioner again appeared before this Court on June 4, 2012, for sentencing. (Document 8 attached to ECF No. 7). At sentencing, both Petitioner and the Government agreed that the recommended guideline offense level of 27 was appropriate, and that the applicable sentencing range under that offense calculation was between 70 and 87 months. (Document 8 attached to ECF No. 7 at 3-7). Based on this agreed upon offense level and a consideration of the relevant sentencing factors, this Court sentenced Petitioner to 70 months imprisonment, the bottom of the advisory guidelines range. (Id. at 10). Petitioner thus ultimately received a sentence of 70 months imprisonment alongside a five year term of supervised release following his imprisonment and the appropriate fines. (Document 3 attached to ECF No. 7). Petitioner does not appear to have appealed his conviction or sentence.
Following his conviction, Petitioner and the Government filed a joint motion for a reduction of sentence in April 2015 based on the 2014 amendment to the applicable sentencing guidelines which retroactively reduced the offense level for certain drug quantities. (Docket No. 11-735 at ECF No. 27). On April 29, 2015, this Court granted that motion and resentenced Petitioner to 60 months imprisonment. (Docket No. 11-735 at ECF No. 38).
A prisoner in federal custody may file a motion pursuant to 28 U.S.C. § 2255 challenging the validity of his or her sentence. Section 2255 provides, in relevant part, as follows:
28 U.S.C. § 2255. Unless the moving party claims a jurisdictional defect or a constitutional violation, to be entitled to relief the moving party must show that an error of law or fact constitutes "a fundamental defect which inherently results in a complete miscarriage of justice, [or] an omission inconsistent with the rudimentary demands of fair procedure." United States v. Horsley, 599 F.2d 1265, 1268 (3d Cir. 1979) (quoting Hill v. United States, 368 U.S. 424, 429 (1962)), cert. denied 444 U.S. 865 (1979); see also Morelli v. United States, 285 F.Supp.2d 454, 458-59 (D.N.J. 2003).
A district court need not hold an evidentary hearing on a motion to vacate where "the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005); United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992). "Where the record, supplemented by the trial judge's personal knowledge, conclusively negates the factual predicates asserted by the petitioner or indicate[s] that petitioner is not entitled to relief as a matter of law, no hearing is required." Judge v. United States, ___ F. Supp. 3d ___, ___, No. 13-2896, 2015 WL 4742380, at *3 (D.N.J. Aug. 11, 2015); see also Government of Virgin Islands v. Nicholas, 759 F.2d 1073, 1075 (3d Cir. 1985); see also United States v. Tuyen Quang Pham, 587 F. App'x 6, 8 (3d Cir. 2014); Booth, 432 F.3d at 546. For the reasons set forth below, Petitioner's motion to vacate sentence is patently without merit, and no evidentiary hearing is necessary in this matter.
In his motion, Petitioner presents a single claim — that his sentence violates Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013), because he was sentenced above the mandatory minimum for the crime to which he pled guilty based on this Court's Guidelines calculation. In Alleyne, the Court extended its prior holding in Apprendi v. New Jersey, 530 U.S. 466 (2000), to require that any fact which increases the mandatory minimum sentence of an offense be found by a jury beyond a reasonable doubt as any such fact is essentially an element of the offense in question. Alleyne, 133 S. Ct. at 2158 ("facts that increase the mandatory minimum are. . . elements and must be submitted to the jury and found beyond a reasonable doubt"). Before reaching the question of whether Alleyne applies to Petitioner's case, the Court must first note that Petitioner was convicted and sentenced in June of 2012. (Document 3 attached to ECF No. 7). Petitioner was thus sentenced prior to the Court's decision in Alleyne. As it does not appear that Petitioner filed a direct appeal of his conviction or sentence, Alleyne would therefore only apply to Petitioner's sentence if Alleyne were made retroactive to cases on collateral review. As the Third Circuit has explained, however, the "decision to make Alleyne retroactive [to cases on collateral review] rests exclusively with the Supreme Court which has chosen not to do so." See United States v. Reyes, 755 F.3d 210, 213 (3d Cir. 2014). Thus, Alleyne does not apply retroactively to cases on collateral review, and will not do so unless and until the Supreme Court so holds. Id.; see also Simpson v. United States, 721 F.3d 875, 876 (7th Cir. 2013). Because Alleyne does not apply retroactively to cases on collateral review, and because Petitioner was convicted and sentenced as of June 4, 2012, and did not choose to appeal, Alleyne does not apply to Petitioner's case. Reyes, 755 F.3d at 213. As such, even if Petitioner had a meritorious Alleyne claim, it would be of no benefit to him.
In any event, it is clear that Petitioner does not have a meritorious Alleyne claim. In this matter, Petitioner pled guilty to conspiracy to possess with intent to distribute more than 500 grams of cocaine, and provided a more than adequate factual basis suggesting that the conspiracy involved Petitioner seeking to purchase two kilograms of coccaine and his possession of a firearm. (Document 7 attached to ECF No. 7 at 10). Thus, Petitioner, in his plea colloquy, admitted to all of the facts which were necessary to subject him to the mandatory minimum to which he was subject in this case — five years. See, e.g., United States v. Ramirez, 528 F. App'x 678, 679-80 (7th Cir. 2013) (admission as to drug quantity in plea colloquy "negated the need for the district court to make a finding beyond a reasonable doubt regarding drug quantity"); United States v. Yancy, 725 F.3d 596, 601-602 (6th Cir. 2013) (admission of critical facts by a defendant during his plea colloquy negates any need for a jury to find those facts beyond a reasoanble doubt); see also United States v. Booker, 543 U.S. 220, 244 (2005) (holding, under Apprendi rule upon which Alleyne was based, that "any fact . . . which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt," emphasis added). Thus, Petitioner's admissions alone subjected him to the mandatory minimum of five years, and no Alleyne violation resulted from Petitioner being subjected to that minimum.
Likewise, to the extent that Petitioner asserts that Alleyne required that he be given a mandatory minimum sentence, that assertion is categorically incorrect. Alleyne has never been held to require that all persons be sentenced to the mandatory minimum, instead Alleyne controls only when the range to which a defendant is subject changes. Alleyne, like Apprendi before it, was not designed to remove any and all judicial discretion in applying a given sentence. Based on his admission of guilt, Petitioner was subject to a sentencing range between five years, the statutory minimum, and forty years, the statutory maximum. See 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). Thus, based on the facts admitted by Petitioner, he was subject to a sentence between five and forty years, and any sentence within that range would give rise to neither an Alleyne nor an Apprendi violation. Based on the sentencing guidelines, this Court determined that Petitioner was subject to an advisory range of 70 to 87 months. This Court, in its discretion, sentenced Petitioner to the bottom of that range, 70 months. Petitioner's sentence thus fell within the range authorized by his guilty plea and factual recitation, and no error occurred when this Court sentenced Petitioner to a term above the mandatory minimum based on its review of the advisory guidelines and the relevant sentencing factors. See, e.g., Unitd States v. Freeman, 763 F.3d 322, 336 (3d Cir. 2014) (no Alleyne error occurs when sentencing court makes factfindings necessary for determining a guidelines range that do not change the mandatory minimum or maximum sentence applicable to a defendant's conviction "so long as the ultimate sentence imposed was within the statuorilly prescribed range"). Petitioner's claim that his 70 month sentence violates Alleyne would therefore be without merit even if that case did apply to Petitioner's sentence.
Finally, the Court notes that, after his sentence was entered, Petitioner filed a motion pursuant to 18 U.S.C. § 3582(c) in April 2015 which resulted in his sentence being reduced from 70 months to the 60 month mandatory minimum based on retroactive changes to the sentencing guidelines. (See Docket No. 11-735 at ECF Nos. 37-38). As such, Petitioner's assertion that he should have received a five year sentence, were it of any merit, would now essentially be moot as Petitioner's sentence has aready been reduced to the mandatory minimum of sixty months. Petitioner's claim must therefore be denied for that reason as well. Because Petitioner's Alleyne claim is without merit, this Court will deny his motion to vacate sentence.
Pursuant to 28 U.S.C. § 2253(c) the petitioner in a § 2255 proceeding may not appeal from the final order in that proceeding unless he makes "a substantial showing of the denial of a constitutional right." "A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude that the issues presented here are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Because Petitioner's claims are clearly without merit in so much as Alleyne does not apply retroactively to cases on collateral review and no Alleyne error occurred in any event, jurists of reason would not disagree with this Court's denial of Petitioner's motion, and Petitioner's claims are not adequate to deserve encouragement to proceed further. This Court therefore denies Petitioner a certificate of appealability. Id.
For the reasons set forth above, Petitioner's motion to vacate his sentence (ECF No. 1) is DENIED, and Petitioner is DENIED a certificate of appealability. An appropriate order follows.
