MEMORANDUM DECISION AND ORDER

BRIAN M. COGAN, District Judge.

Defendant brings this motion pursuant to 28 U.S.C. § 2255 and Federal Rule of Criminal Procedure 35(a) seeking an order to "correct and or/vacat[e] the sentence and/or judgement [sic] of conviction." For the reasons discussed below, his motion is denied.1

BACKGROUND

A grand jury indicted defendant for 1) conspiring to distribute at least 280 grams of crack cocaine; 2) conspiring to and attempting to commit a Hobbs Act robbery, and 3) conspiring to distribute at least 400 grams of fentanyl (a conspiracy that resulted in an overdose death). Defendant pled guilty to a fentanyl-distribution count pursuant to a plea agreement before Magistrate Judge Orenstein. The plea was to a lesser-included offense that did not require him to allocute to the full weight of the conspiracy, or to causing the overdose death. Under the plea agreement, defendant was subject to a 5-year mandatory minimum sentence, instead of the 20-year mandatory minimum sentence triggered by the overdose death, or the 10-year mandatory minimum sentence triggered by the weight of fentanyl.

The plea agreement estimated that the United States Sentencing Guidelines ("Guidelines") range would be 108-135 months, after enhancements for possessing a dangerous weapon, U.S.S.G. § 2D1.1(b)(1), and for maintaining a distribution premises, U.S.S.G. § 2D1.1(b)(12). The enhancements applied because defendant was arrested inside of his apartment, which was a sophisticated drug stash house (with marijuana plants, a ventilation system, a pill-making machine, and a kilogram press) and because police found a loaded gun there. In the plea agreement, defendant stipulated to both the estimated range and to the applicability of the enhancements.

During the plea hearing, defendant confirmed that he read, understood, and signed the plea agreement. Magistrate Judge Orenstein informed defendant (as did the plea agreement) that the Guidelines provided only an estimate of his actual sentence, and further, that disagreement with the Guidelines calculation in the presentence investigation report ("PSR") would not serve as a basis to withdraw his plea. When eventually issued, the PSR calculated the advisory range at 108-135 months (the same as in the plea agreement).

I subsequently sentenced defendant to a 126-month sentence. At the sentencing, I first had to determine whether to accept the guilty plea that defendant had given Magistrate Judge Orenstein. Despite his stipulation, defendant, speaking on his own behalf, expressly raised concerns about the enhancements — claiming, specifically, that the gun enhancement was not applicable. When I pointed out to him that he had stipulated to the enhancements, but that he could withdraw from the plea agreement if he wanted to, defendant was adamant that he did not want to withdraw from the plea agreement. He nevertheless attempted to argue that the enhancements were inappropriate. He was successful to the extent that I advised him that notwithstanding the stipulated Guidelines in the plea agreement, I would make my own determination whether the enhancements applied.

Sentencing Transcript, 3:6-3:15; 3:20-4:9; 6:4-6:7; 6:22-7:3; 7:11-7:20.

I specifically cautioned defendant that if I accepted his guilty plea and found that the enhancements were proper under the Guidelines, he would not be able to reargue any complaint about the enhancements at a later date:

Sentencing Transcript, 4:13-4:19; 8:1-8:6.

Defendant nevertheless insisted that he wanted to plead guilty pursuant to the plea agreement.

Sentencing Transcript, 6:2-6:3; 6:13-6:15.

Defendant now seeks habeas relief, claiming ineffective assistance of counsel,2 because "neither the Court nor counsel advised Defendant that he could have withdrawn from the plea agreement and maintained his guilty plea upon a showing of `fair and just reasons,'" and that had he been so advised, "he would have withdrawn from the plea agreement but maintained his plea of guilty, thus, requiring the Court to decline to apply the two aforementioned enhancements given their inapplicability to the offense of the conviction." He also claims that the Government made "material misrepresentations to the Court," arguing that it searched his residence and took photographs before obtaining a warrant, but that his counsel failed to mount a defense based on the alleged illegality of the search. Defendant also seeks the same relief under Federal Rule of Criminal Procedure 35(a), alleging that his sentence was improperly increased with sentencing enhancements.

DISCUSSION

Section 2255 of Title 28, United States Code, allows a prisoner in custody under sentence of a federal court to move the sentencing court to vacate, set aside or correct a sentence. To obtain relief pursuant to 28 U.S.C. § 2255, a federal prisoner must establish: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the Court was without jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. See Hill v. United States, 368 U.S. 424, 426-27, 82 S.Ct. 468, 470 (1962). "The Court's discretion to grant relief under section 2255 is to be exercised sparingly, for such applications `are in tension with society's strong interest in the finality of criminal convictions.'" Francis v. United States, No. 02 CV 0468, 2010 WL 1260158, at *3 (E.D.N.Y. March 31, 2010) (quoting Elize v. United States, No. 02 CV 1350, 2008 WL 4425286, at *5 (E.D.N.Y. Sept. 30, 2008).

To demonstrate ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 687 (1984), a defendant must show two things: (1) that his counsel's performance was deficient, and (2) that the deficient performance prejudiced his defense. A court will deem performance deficient if "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment." Id. If there is a reasonable probability that the outcome might have been different because of a legal error, the defendant has established prejudice and is entitled to relief. See Weaver v. Massachusetts, 137 S.Ct. 1899, 1910-11 (2017); Lafler v. Cooper, 566 U.S. 156, 166 (2012); Glover v. United States, 531 U.S. 198, 203-04 (2001). An ineffective assistance of counsel claim will fail if the defendant fails to make a sufficient showing under either of the Strickland prongs. See Strickland, 466 U.S. at 697.

Defendant alleges that his counsel was ineffective in two ways. First, defendant claims that his counsel failed to explain to him that he could have withdrawn from the plea agreement but pled guilty to the indictment. Defendant asserts that he wanted to plead guilty, but would not have accepted the plea agreement if it had been properly explained that "the enhancements would result in a misapplication of the Guidelines." Defendant alleges that had he withdrawn from the plea agreement, he would have received a "significantly shorter" term of imprisonment. Second, defendant claims that his counsel did not "investigate the circumstances surrounding the search [of the apartment] and move to dismiss the indictment."

As to defendant's first claim, he is mistaken in his belief that withdrawing from the plea agreement would have resulted in a "significantly shorter" term of imprisonment. It would have resulted in a much longer one. If he withdrew from the plea agreement, but plead guilty to the indictment, the Court would have been compelled to sentence him to least 20 years of prison — nearly double the sentence he received — or as long as life. Notably, neither in his motion nor anywhere else has defendant suggested that he wanted to go to trial. This is hardly surprising, given that he was arrested in a drug stash house following intercepted calls in which he discussed the sale of drugs and the overdose death.

In any event, even though defendant may have come close to breaching the plea agreement, I did what defendant asked me to do and considered not just the parties' stipulation in the plea agreement, but I undertook my own analysis of whether the enhancements were appropriate under the Guidelines. They were.

First, the premises enhancement applies if "the defendant maintained a premises for the purpose of manufacturing or distributing a controlled substance." U.S.S.G. § 2D1.1(b)(12). Furthermore, "[m]anufacturing or distributing a controlled substance need not be the sole purpose for which the premises was maintained, but must be one of the defendant's primary or principal uses for the premises, rather than one of the defendant's incidental or collateral uses for the premises." see Id. cmt. N. 17. Here, defendant lived in an apartment with a room dedicated to growing marijuana (complete with a ventilation system). Additionally, authorities found a pill-making machine and a kilogram press in the apartment. With these facts, there is simply no credible way to claim that manufacturing or distributing drugs was an "incidental" use of defendant's apartment. Defendant maintained a small-scale drug factory.

Second, the firearms enhancement applies "[i]f a dangerous weapon (including a firearm) was possessed." U.S.S.G. § 2D1.1(b)(1). Application notes provide for the enhancement "if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense." Id., Application Note 11(A) (emphasis added). This is not a case where an unloaded hunting rifle was found stored away in a closet. Police recovered a loaded pistol from defendant's grow-house apartment. Especially in light of intercepted calls with his alleged co-conspirators in which they discussed the use of firearms in drug-related activity, there is every reason to believe that the recovered weapon was connected to the offense for which defendant plead, and no viable argument to find that connection "clearly improbable."

Defendant's main point, in arguing against the enhancement (despite his plea agreement), was that authorities found the gun about six months after the end date of the conspiracy in the indictment. I considered that, but I did not find it "clearly improbable" that the gun was connected to the conspiracy. "The fact that the gun was found six months after the end of the charged date does not suggest to me under the terms of these guidelines that it was not involved in this particular crime."

Finally — and critically — the Guidelines would have called for both enhancements whether or not defendant plead under the plea agreement. Agreement or not, defendant was not escaping from the increase in his sentence.

In short, there was nothing deficient about defense counsel's performance: defendant cannot plausibly claim that his counsel secured anything for him but, as the Government put it, "a remarkable plea." Accordingly, this claim fails the first Strickland prong.

As the transcript excerpted above makes evident, defendant understood that the enhancements were part and parcel of the plea agreement; he acknowledged that he would not be permitted to re-litigate any concerns about their application at a later date; and yet informed of these facts, he freely plead guilty.

Defendant's second claim of ineffective assistance of counsel turns on his assertion that the Government removed from his apartment the pill-making machine and "some of the contraband" before obtaining a warrant, and never "froze" the apartment. Defendant alleges that in light of this allegedly illegal search, his counsel should have moved to dismiss the indictment. This argument fails for two reasons.

First, the search was legal. "Under the Fourth Amendment's protective sweep exception, agents executing an arrest inside a home may, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched." United States v. Guerrero, 813 F.3d 462, 467 (2d Cir. 2016) (internal quotations omitted). Defendant offers no facts to show that anything different happened here, and the facts that I found at sentencing, pursuant to my adoption of the PSR, are only consistent with a legal search.

Second, even if the search had been illegal, I still would have considered its results at sentencing. Here, once again, it is important to note that defendant does not claim that he would have gone to trial; he merely asserts that he would have pled to the indictment instead of the plea agreement. But whether defendant had pleaded guilty to an indictment or under an agreement, I would have considered the results of the search, legal or not, because the exclusionary rule does not apply at sentencing, and a sentencing judge is entitled to consider evidence that would not be admissible at trial. "Absent a showing that officers obtained evidence expressly to enhance a sentence, a district judge may not refuse to consider relevant evidence at sentencing, even if that evidence has been seized in violation of the Fourth Amendment." United States v. Tejada, 956 F.2d 1256, 1263 (2d Cir. 1992). Any claim of deficient performance on the part of his counsel as to this point therefore fails under both of Strickland's requirements.

Finally, defendant's argument under Federal Rule of Criminal Procedure 35(a) is unavailing. Rule 35(a) only allows a court to "correct a sentence that resulted from arithmetical, technical, or other clear error." Fed. R. Crim. P. 35. See United States v. Abreu-Cabrera, 64 F.3d 67, 72 (2d Cir. 1995) (Rule 35(a) "is intended to be very narrow and to extend only to those cases in which an obvious error or mistake has occurred in the sentence, that is, errors which would almost certainly result in a remand of the case to the trial court for further action."). Indeed,

United States v. Abreu-Cabrera, 64 F.3d 67, 72 (2d Cir. 1995).

CONCLUSION

The motion is denied. Because defendant has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c).

SO ORDERED.