ORDER On March 2, 2012, Petitioner Hemayer Baghoumian pleaded guilty to racketeering conspiracy, in violation of 18 U.S.C. §1962(d).1 On April 12, 2013, this Court sentenced Baghoumian to 135 months’ imprisonment, and three years’ supervised release. (See No. 10 Cr. 895, Judgment (Dkt. No. 649)) Baghoumian moves, pursuant to 28 U.S.C. §2255, to vacate his sentence. (No. 14 Civ. 8683, Mot. (Dkt. No. 1)) For the reasons stated below, Baghoumian’s motion will be denied.BACKGROUNDI. FACTS AND PROCEDURAL HISTORYA. IndictmentIndictment 10 Cr. 895 (PGG) was filed on September 30, 2010, and charged twenty-eight defendants with a massive nationwide scheme to defraud Medicare of more than $100 million. The fraud scheme involved “stealing the identities of doctors, setting up fake medical clinics in their names, and then stealing identities of patients so that Medicare could be billed for millions of dollars of fictitious medical treatments.” (No. 10 Cr. 895, Indictment (Dkt. No. 3) 12(a)) In connection with this scheme to defraud Medicare, Baghoumian was charged with racketeering conspiracy, in violation of 18 U.S.C. §1962(d); conspiracy to commit health care fraud, in violation of 18 U.S.C. §1349; conspiracy to commit money laundering, in violation of 18 U.S.C. §1956(h); and conspiracy to commit fraud in connection with identity theft, in violation of 18 U.S.C. §§371 and 1028(a)(7). (No. 10 Cr. 895, Indictment (Dkt. No. 3))B. Guilty Plea1. Plea AgreementOn March 2, 2012, Baghoumian entered into a plea agreement with the Government. Baghoumian agreed to plead guilty to Count One of the Indictment, which charged him with racketeering conspiracy. The plea agreement set out the maximum sentence for the offense — 20 years’ imprisonment. (Plea Agmt. (Dkt. No. 977) at 1)In the plea agreement, Baghoumian and the Government entered into the following stipulations concerning application of the Sentencing Guidelines: (1) the base offense level is seven; (2) a 20-level enhancement applies pursuant to §2B.1.1(b)(1)(K), because the loss amount attributable to Baghoumian is between $ 7 million and $20 million dollars; (3) a two-level enhancement applies pursuant to §2B1.1(b)(10)(c), because the offense involves sophisticated means; (4) a four-level enhancement applies pursuant to §2B1.1(b)(2)(c), because Baghoumian’s offense involves 50 or more victims; and (5) a three-level reduction pursuant to §§3E1.1(a) and (b) would be appropriate, if Baghoumian demonstrated acceptance of responsibility prior to the imposition of sentence. (Plea Agmt. (Dkt. No. 977) at 3-4) Pursuant to these calculations, the parties agreed that Baghoumian’s total offense level is 30.2 (Id. at 4)The parties also stipulated that — “[b]ased upon the information now available to [the U.S. Attorney's] Office (including representations by the defense)” — Baghoumian has zero criminal history points, placing him in Criminal History Category I. (Id.) The parties further agreed that at offense level 30 and Criminal History Category I, Baghoumian’s Guidelines sentencing range is 97 to 121 month’s imprisonment. (Id.)The plea agreement also addresses the possibility that new information relevant to Baghoumian’s sentence would be discovered after his guilty plea: “[N]othing in this Agreement limits the right of the parties…to seek an appropriately adjusted Guidelines range if it is determined based upon new information…that the defendant’s criminal history category is different from that set forth above.” (Id.) The plea agreement further states that “[i]t is understood that…neither the Probation Office nor the Court is bound by the above Guidelines stipulation, either as to questions of fact or as to the determination of the proper Guidelines to apply to the facts,” and that “the sentence to be imposed…is determined solely by the Court…. [The U.S. Attorney's] Office cannot, and does not, make any promise or representation as to what sentence the defendant will receive.” (Id. at 5) Baghoumian and the Government further agreed that “defendant will have no right to withdraw his plea of guilty should the sentence imposed by the Court be outside the Stipulated Guidelines Range.” (Id.)Finally, Baghoumian agreed that he would not file a direct appeal or collaterally challenge any sentence within or below the Stipulated Guidelines Range of 97 to 121 months’ imprisonment. (Id.)2. Rule 11 ProceedingOn March 2, 2012, Baghoumian pled guilty to Count One of the Indictment before Magistrate Judge Katz. Judge Katz informed Baghoumian that Count One carried a maximum statutory penalty of twenty years’ imprisonment. (Plea Tr. (Dkt. No. 978) at 2) Baghoumian told Judge Katz that he had “had a chance to discuss the charges in the indictment with Mr. Cooper[, his lawyer], and [to discuss] how [he] wish[ed] to plead.” Baghoumian also told Judge Katz that he had spoken “with Mr. Cooper about how the United States Sentencing Guidelines appl[ied] to [his] case.” Baghoumian also affirmed that he was satisfied with his attorney’s services. (Id. at 5-7)Baghoumian also acknowledged that he understood that although he and the Government had “reached some understanding…about the sentencing range [Baghoumian] face[d] under the [G]uidelines, that’s not binding on Judge Gardephe and the sentence to be imposed lies solely in his discretion.” (Id. at 10) When Judge Katz asked whether Baghoumian “underst[ood] that even if Judge Gardephe were to impose a more severe sentence than…121 months in prison, that would not be a basis for [him] to withdraw [his] plea of guilty,” Baghoumian answered, “I understand that.” (Id.)Baghoumian also assured Judge Katz that his guilty plea was voluntary:The Court: Have any threats been made to you by anyone which are causing you to plead guilty today?Defendant: No.The Court: Have any promises been made to you about the sentence you will receive?Defendant: None.The Court: Did you enter into a plea agreement with the government?…Defendant: Yes.The Court: Have you read and signed that agreement?Defendant: I did.The Court: Have you discussed it with Mr. Cooper?Defendant: We did.The Court: Do you understand what it said?Defendant: I understand.…The Court: Is your plea made voluntarily and of your own will?Defendant: Voluntarily.(Id. at 8-9, 11)As to the factual basis for Baghoumian’s plea, the Government “proffer[ed]…that part of the scheme was the theft of patient[]s['] identities,” on behalf of whom “false Medicare claims were submitted.” (Id. at 12) Baghoumian then allocuted that[d]uring the period of time alleged in the indictment…I participated with [co-defendant Davit] Mirzoyan and others to engage in a pattern of activity that included mail, wire, and bank fraud, [the object of which] was to commit healthcare fraud.… As part of my role, I assisted in submitting the numerous claims to Medicare that I knew were related to either fictitious or unknown individuals, as well as fictitious treatments at medical clinics in the United States with the intent to obtain money for which there was no legitimate medical claim.(Id. at 12-13) Baghoumian further stated that (1) the telephone, mail, and wires were used to commit the fraud; and (2) Medicare submitted payment for the fraudulent claims electronically, transmitting monies to banks and bank accounts that co-conspirators had set up to receive the fraud proceeds. (Id. at 14-15)Finally, Baghoumian’s counsel informed Judge Katz that he and his client[H]ave had ample discussions with respect to this [plea]. And I’ll state on the record that I have discussed with Mr. Baghoumian specifically the effects of [§] 3553(a) and how it might impact on his case. And we have discussed those issues that I would intend to raise. The government is aware of, certainly, a number of those that I intend to raise. So while it is very clear that the stipulated guideline range is 97 to 121 months, Mr. Baghoumian is aware that I intend to raise 3553(a) issues with respect to reasonable sentence before Judge Gardephe at the time.(Id. at 15)C. Presentence Investigation and ReportThe Probation Office issued a Presentence Investigation Report (“PSR”) on July 19, 2012. According to the PSR, Baghoumian “played [a] key role[] in the [charged racketeering enterprise],” as a “principal partner[] in operating the health care fraud scheme.” (PSR 73) In particular, Baghoumian “monitored the flow of fraudulent funds from the clinics, and reported to [co-defendant Davit] Mirzoyan [- the leader of the enterprise-] on the status of particular accounts regularly. Baghoumian also assisted Mirzoyan in obtaining new ‘patients’ — i.e. stolen identities — to use to bill [the phony] Medicare clinics. Baghoumian also assisted the money laundering operations of [the racketeering enterprise]…and received hundreds of thousands of laundered funds over the life of the offense, including payments from a Las Vegas casino where the conspirators exchanged money through chips, and from a gold dealer.” (Id. 74)In determining offense level, the Probation Office employed the same calculations set forth in the parties’ plea agreement, and arrived at the same total offense level of 30.3 (Id.
105-07) As to criminal history, however, the Probation Office discovered two convictions of which the Government had been unaware when the parties negotiated the plea: a 2006 Nevada conviction for Driving Under the Influence (“DUI”), for which Baghoumian was sentenced to a fine; and a 2009 California conviction for DUI, for which Baghoumian was sentenced to three days’ imprisonment (suspended) and three years’ probation. (Id.
