CINDY K. JORGENSON, District Judge.
Pending before the Court is Petitioner's Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (28 U.S.C. §2255). (Doc. 1). The government filed a response on April 22, 2013. (Doc. 4). Petitioner has not filed a reply.
On September 18, 2006, Petitioner was sentenced by the Honorable James A. Parker, presiding in the District of New Mexico, to 57 months incarceration and a 36 month term of supervised release following his conviction for illegal re-entry after deportation in violation of Title 8 U.S.C. §1326, enhanced by 8 U.S.C. §1326(b)(2). (CR-11-50149, Doc. 3). Petitioner was released from prison on November 12, 2010. Id. He was deported on February 15, 2011. Id.
On April 13, 2011, Petitioner was indicted for illegal re-entry after deportation in violation of Title 8 U.S.C. §1326, enhanced by 8 U.S.C. §1326(b)(2). (CR-11-1303, Doc. 5). At the time of his indictment, Petitioner was still serving his period of supervised release from his prior conviction. On May 18, 2011, defense counsel moved for a preliminary pre-sentence investigation report. (CR-11-1303, Doc. 12). Magistrate Judge D. Thomas Ferraro granted defense counsel's motion and ordered the U.S. Probation Office to prepare a report and provide it to defense counsel by June 18, 2011. (CR-11-1303, Doc. 13).
On June 13, 2011, the U.S. Probation Office filed a petition to revoke Defendant's supervised release. (CR-11-50149, Doc. 3). On June 14, 2011, the District of New Mexico transferred Petitioner's case for violating the terms of his supervised release to this Court. (CR-11-50149, Doc. 1). On July 25, 2011, Petitioner entered a plea of guilty to the indictment, before Magistrate Judge D. Thomas Ferraro, without the benefit of a plea agreement. (CR-11-1303, Doc. 20). Additionally, Petitioner admitted to violating the terms of his supervised release. (CR-11-50149, Doc. 13).
According to the presentence report, Petitioner's base offense level under the sentencing guidelines for a violation of 8 U.S.C. §1326 is 8. Four levels were added since Petitioner had been deported following a felony conviction. The presentence report only recommended adding 4 levels because the government had not established that Petitioner's prior conviction for robbery was a crime of violence. Two levels were then subtracted since Petitioner accepted responsibility for his actions, resulting in a total offense level of 10. Based on a total offense level 10 and a criminal history category IV, the guideline range for imprisonment is 15 to 21 months on the indictment and not more than 2 years on the violation of his supervised release.
On October 31, 2011, the government filed its objections to the presentence report. (CR-11-1303, Doc. 24). Specifically, the government objected to the 4 level enhancement applied in the presentence report. Id. According to the government, Petitioner's prior conviction for robbery was a crime of violence and thus, the 16 level enhancement applied. Id. As support for its proposition, the government attached to its filing a Judgment on a Guilty Plea, a Judgment of Conviction and Sentence of Probation, and an Order on a Motion to Revoke Probation, which all related to Petitioner's robbery conviction. Id.
Visiting Judge Stephen J. Murphy conducted a two day sentencing hearing in December 2011. (CR-11-1303, Docs. 28, 29). On December 2, 2011, Visiting Judge Murphy determined that the judicially noticeable documents submitted by the government with its objections to the presentence report established that Petitioner pled guilty to robbery and that his robbery conviction categorically qualified as a crime of violence warranting a 16 level enhancement. (CR-11-1303, Doc. 39). Petitioner was sentenced to a 63 month term of imprisonment on his plea of guilty to the indictment and 12 months for the supervised release violation with the two sentences to run concurrently. Id.
On December 6, 2011, Petitioner filed a Notice of Appeal challenging the visiting judge's determination that his prior robbery conviction was a crime of violence. (CR-CR-11-1303, Doc. 31). On December 7, 2012, the Ninth Circuit Court of Appeals affirmed the district court's determination that Petitioner's prior robbery conviction constituted a crime of violence warranting a 16 level enhancement. (CR-11-1303, Doc. 44).
Then, on January 2, 2013, Petitioner filed his Motion to Vacate Set Aside or Correct Sentence by a Person in Federal Custody (28 U.S.C. §2255). (Doc. 1). In his motion, Petitioner asserts three grounds for relief. First, he claims that he was denied effective assistance of counsel at sentencing; second, the Court violated his Sixth Amendment rights and failed to consider the full range of factors available during sentencing and only relied upon the sentencing guidelines; and third, the Petitioner is entitled to relief for post sentencing rehabilitation pursuant to the Supreme Court case in " Pepper." (Doc. 1).
Ineffective Assistance of Counsel
To prevail on a claim of ineffective assistance of counsel, Petitioner must satisfy a two prong test, demonstrating: (1) deficient performance, such that counsel's actions were outside the wide range of professionally competent assistance, and (2) that Petitioner was prejudiced by reason of counsel's actions. Strickland v. Washington, 466 U.S. 668, 686-90, 104 S.Ct. 2052, 2064-66, 80 L.Ed.2d 674 (1984).
In order to establish this, he must identify the acts or omissions that rendered the representation objectively unreasonable. Id. at 690. Second, he must show that he was prejudiced by his counsel's deficient performance. Id. at 693. If Petitioner fails to prove both elements, the Court may reject his claim upon finding that counsel's performance was reasonable or that the claimed error was not prejudicial. Id. at 697. To show deficient performance, Petitioner must overcome a strong presumption that his ...