REPORT AND RECOMMENDATION
LAWRENCE O. ANDERSON, Magistrate Judge.
This case is before the Court on Defendant Francisco Aguilera-Montoya's ("Movant") pro se Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255. (Doc. 1) The United States ("Respondent") filed a Response, doc. 8, but Movant did not file a Reply and the time to do so has expired.
I. Procedural Background
On September 5, 2011, Movant was arrested by Immigration and Enforcement agents and, two days later, was charged via Complaint with Reentry of Removed Alien, a felony, in violation of 8 U.S.C. § 1326(a), as the sentence may be enhanced by § 1326(b)(1). (CR doc. 1) On September 20, 2011, Movant waived his right to proceed by indictment and Respondent filed an information, charging Movant with same crime alleged in the Complaint. (CR doc. 7) That same day, Movant entered into a written plea agreement with Respondent in which he pled guilty to Reentry of Removed Alien as alleged in the information. (CR doc. 23)
During the change-of-plea proceeding before Magistrate Judge David K. Duncan, Movant admitted he was not a citizen or national of the United States and was removed from the United States through Nogales, Arizona on February 24, 2005. (CR doc. 23 at 17) Movant further admitted that, without obtaining the express consent of United States before he returned to the United States, he voluntarily returned and was found in or near Phoenix, Arizona on September 28, 2009. ( Id. at 17-18) Movant also admitted that, for sentencing purposes, he was convicted of Aggravated Assault and Leaving the Scene of a Serious Injury or Fatal Accident, both felonies, on December 4, 2003, in the Maricopa County Superior Court, State of Arizona. ( Id. at 18) Movant admitted he was represented by an attorney in that State matter and was sentenced to one-and-a-half years in prison for the aggravated assault conviction and three years probation for the leaving-the-scene conviction. ( Id. )
During the change-of-plea proceeding, Movant agreed to waive his rights to appeal and collaterally attack his federal conviction and sentence, provided his sentence was consistent with his plea agreement. (CR doc. 10 at 5; doc. 23 at 16-17) As to his sentence, Movant's plea agreement provided he be sentenced in accordance with the United States Sentencing Guidelines ("Guidelines"), considering any prior felony enhancement and reductions pursuant to the Attorney General's Early Disposition Program and Movant's acceptance of responsibility. (CR doc. 10 at 2-4) The sentencing ranges set forth in the plea agreement varied according to any enhanced offense level for Movant's prior felony conviction and his criminal history category. ( Id. )
Before asking Movant for his plea, Magistrate Judge Duncan inquired whether someone read Movant the plea agreement before he signed it and whether he understood everything in it, to which Movant responded, "Yes." (CR doc. 23 at 4) Movant told Magistrate Judge Duncan he had enough time to talk with his lawyer, had his questions answered, and was satisfied with his counsel's representation to that point in time. ( Id. at 4-5) Movant further stated he understood the nature of the offense to which he was pleading guilty and the maximum penalties available for that offense. ( Id. at 7-8) When asked if anyone forced him to plead guilty, made threats against him, or made any unwritten promises to him to get him to plead guilty, Movant answered, "No." ( Id. at 9) Movant also stated he understood the Court's explanation of how sentencing works in District Court and had no questions about sentencing. ( Id. at 12-14)
Magistrate Judge Duncan also explained to Movant the rights he would be foregoing by pleading guilty. ( Id. at 14) Movant said he understood those rights and wished to give them up. ( Id. at 16) When asked if he understood everything covered during the change-of-plea proceeding, Movant answered, "Yes." ( Id. at 19) Movant then pled guilty to a violation of 8 U.S.C. § 1326(a), as enhanced for sentencing purposes by § 1326(b)(1). ( Id. at 20) Magistrate Judge Duncan found Movant "knowingly, intelligently and voluntarily" entered his guilty plea, there was a factual basis for his plea, and Movant was competent to enter his plea. ( Id. at 20-21) Sentencing was scheduled for December 12, 2011, before the Honorable Charles B. Kornmann, a visiting United States District Judge. ( Id. at 21)
A few days before the sentencing hearing, Judge Kornmann issued a Memorandum to all counsel, explaining he intended to reject the plea agreement at the sentencing hearing. (CR doc. 15) Judge Kornmann explained that, in his view, "[t]he criminal history category of the defendant (IV) substantially under-represents the seriousness of the defendant's criminal history as well as the likelihood that he will commit other crimes." ( Id. )
According to the presentence report ("PSR"), the U.S. Probation Officer determined Movant's offense level was ten and his criminal history category was IV. (Sealed doc. 10 at 15). As reflected in the PSR, the sentencing range under the Guidelines, and pursuant to the terms of the plea agreement, was 15 to 21 months in the Bureau of Prisons. ( Id. )
The sentencing hearing was held as scheduled. (CR doc. 16) Judge Kornmann rejected the plea agreement and determined Movant's criminal history category should be VI with an offense level of ten, thus providing a range of 24 to 30 months in prison. (CR doc. 22 at 3-5) Judge Kornmann stated he was inclined to sentence Movant to 30 months. ( Id. at 5) After hearing counsels' arguments and Movant's statements, Judge Kornmann indicated he was still inclined to impose an upward departure or variance, but "maybe a little bit less than what I indicated to you." ( Id. at 11) Judge Kornmann then asked Movant if he wished to proceed with the sentencing or withdraw his guilty plea and proceed to trial. ( Id. ) Movant stated he wanted to proceed with sentencing and his counsel agreed. ( Id. ) Using the previously indicated Guideline range, Judge Kornmann then sentenced Movant to 26 months in prison and a three-year term of supervised release upon release from prison. ( Id. at 11-14; CR doc. 17)
Following the imposition of the sentence, Judge Kornmann advised Movant he had 14 days from the date of judgment to file an appeal. (CR doc. 22 at 14) Judge Kornmann further explained:
In the plea agreement you gave up the right to appeal. However, you did not give up that right when I have sentenced you to what's called an upward departure or upward variance. And so if you wish to appeal, you have that right.
( Id. ) Judge Kornmann also advised Movant he could file his notice of appeal, or the Clerk of Court would do it for him upon request, without paying the statutory filing fee, and counsel would be ...