The opinion of the court was delivered by: John Garrett Penn United States District Judge
Petitioner Rickey Buchanan moves to vacate, set aside, or correct his sentence pursurant to 28 U.S.C. § 2255. Mr. Buchanan claims that (1) he is serving an illegal sentence in light of the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005); (2) the government breached its plea agreement with him; and (3) he was denied his Sixth Amendment right to effective assistance of counsel. The Court finds no merit to his first two claims.*fn1 However, because Mr. Buchanan has raised an issue regarding the effectiveness of his trial counsel which cannot be adequately addressed on the present record, the Court will hold an evidentiary hearing on the matter before issuing a final ruling. In all other respects, the motion is denied.
On August 24, 2001, the government filed a criminal information charging the Petitioner, Rickey Buchanan, with one count of Bank Fraud, in violation of 18 U.S.C. § 1344, in criminal case number 01-299. On September 5, 2001, Mr. Buchanan pled guilty to Bank Fraud pursuant to a written plea agreement that was filed with the Court, and the Court released Mr. Buchanan on personal recognizance pending his sentencing. On February 19, 2002, before Mr. Buchanan had been sentenced in case number 01-299, the government filed a new criminal information charging Mr. Buchanan with another count of Bank Fraud, in violation of 18 U.S.C. § 1344. In this information, criminal case number 02-085, the government alleged that Mr. Buchanan and other individuals had attempted to obtain fraudulent loans from Sun Trust Bank totaling more than $30,000. On March 11, 2002, Mr. Buchanan pled guilty to the additional charge of Bank Fraud pursurant to a second written plea agreement that was filed with the Court. Mr. Buchanan was again released on personal recognizance pending sentencing. In March 2004, in accordance with his written plea agreement, Mr. Buchanan testified at the sentencing hearing in another criminal case. Based on his testimony, and previous cooperation in a government investigation, the government filed a consolidated motion for downward departure.
On August 9, 2004, the government filed a motion to revoke Mr. Buchanan's conditions of release and to hold him without bond pending sentencing. The government sought to revoke bond because Mr. Buchanan was arrested while assisting another individual purchase a Jaguar automobile*fn2 in Maryland.*fn3 At the time of his arrest, Mr. Buchanan was in possession (and presented to the arresting officers) a fraudulent driver's license. The government filed a second sentencing memorandum on August 12, 2004. The Court held a hearing on the government's motion on August 25, 2004. At the hearing, defense counsel did not contest the government's claim that Mr. Buchanan was, at the time of his arrest at the Maryland Jaguar dealership, in possession of an identification card for "Roger Buchanan." Indeed, defense counsel candidly conceded that "Roger Buchanan" was in fact Mr. Buchanan's alias, which he had possessed for ten years and used to make consumer purchases. See Tr. Mots. Hr'g before Judge John Garrett Penn, Aug. 25, 2004, at 32-34. At the close of the hearing, the Court found that Mr. Buchanan had violated the conditions of his release and concluded that he should be held without bond pending his sentencing. Id. at 43. The government filed a third sentencing memorandum shortly after.
Mr. Buchanan's sentencing hearing was held on September 21, 2004. At the hearing, Mr. Buchanan explained in greater detail why he possessed a false identification card for "Roger Buchanan." He stated that his personal credit was "messed up," and that he kept, as a substitute, an "actual real driver's license" for "Roger David Buchanan" for "probably a little over ten years." See Tr. Sen. Hr'g before Judge John Garrett Penn, Sept. 21, 2004, at 12-13. While he did not use the false identification to "harm" anyone or to "borrow money from a bank," he did use it to complete large, non-routine consumer transactions, such as buying a house and a car, that involved taking out personal lines of credit. Id. at 12. Apparently, this fictitious "Roger Buchanan" individual would be extended consumer credit where Mr. Buchanan would not. In regards to the Jaguar dealership, Mr. Buchanan explained that he was carrying the "Roger Buchanan" identification card at the time he was arrested because his actual license was expired. Id. at 14 ("I had that [Roger Buchanan] ID on me at that time. I should have had Rickey Buchanan on, but I didn't have it. It was expired. My license had expired, the Rickey Buchanan, I didn't have it on me so I had the Roger David [Buchanan]."). Mr. Buchanan maintained that he never intended to use his "Roger Buchanan" license at the Jaguar dealership, and that he only went with his friend "because [he was] into cars." Id. at 24.
At the conclusion of the sentencing hearing, the Court granted the government's motion for a downward departure and sentenced Mr. Buchanan to 48 months incarceration for each count of Bank Fraud. See Tr. Sen. Hr'g before Judge John Garrett Penn, Sept. 21, 2004, at 35, 40. The sentences were to run concurrent with each other. Id. at 45. Mr. Buchanan was also sentenced to serve a three-year period of supervised release following his incarceration and ordered to pay restitution in the amount of $101,518. Id. Mr. Buchanan did not file an appeal.
Following the Court's sentencing of Mr. Buchanan in September 2004, the United States Supreme Court issued its opinion in United States v. Booker, 543 U.S. 220, 226-27, 125 S.Ct. 738, 746 (2005). Applying the principles articulated in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), the Supreme Court held that "[a]ny fact (other than a prior conviction) 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." Booker, 543 U.S. at 244, 125 S.Ct. at 756. See also United States v. Draffin, 2007 U.S. Dist. LEXIS 35692, *3 (D.D.C. 2007) ("On January 12, 2005, the United States Supreme Court held that the Sixth Amendment requires criminal defendants to admit, or juries to determine, all facts used to increase sentences beyond the maximum ranges set in the Sentencing Guidelines (other than prior convictions)."). On April 25, 2005, Mr. Buchanan filed the instant motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255, based in large part on the Supreme Court's decision in Booker. The government opposes Mr. Buchanan's motion to vacate.*fn4
Mr. Buchanan raises three principle claims in his § 2255 motion. First, he claims that he is serving an illegal sentence in light of the Supreme Court's recent decision in United States v. Booker. Second, he claims that the government breached its plea agreement with him. Finally, he claims that he was denied his Sixth Amendment right to effective assistance of counsel. The Court will examine each of Mr. Buchanan's claims in order.
Mr. Buchanan's primary claim is that he is serving an illegal sentence in light of the Supreme Court's recent decision in United States v. Booker. Mr. Buchanan argues that he "is serving a sentence where the [federal Sentencing] Guidelines were assessed in a 'mandatory manner,'" and that this application of the Guidelines "violate[d] [his] Sixth Amendment right." Def.'s Mot. at 5. More specifically, Mr. Buchanan argues that the Court's "downward departure  was constrained by the mandatory nature of the guideline regime," id. at 18, and that this was constitutionally deficient because "[a]fter United States v. Booker, the federal Sentencing Guidelines can only be assessed in an advisory manner.'" Id. Id. at 18. The crux of Mr. Buchanan's argument seems to be that it was error for the Court to consider the fact that he was arrested in Maryland in possession of a false identification card for his alias "Roger Buchanan."*fn5 He argues that the Court would have imposed a less severe sentence had it not improperly taken this incident into consideration.
Mr. Buchanan's Booker claim is foreclosed by the decision in In re Fashina. Very recently, the Court of Appeals for the District of Columbia examined whether the Supreme Court's decision in Booker created a new rule of constitutional law that could be applied retroactively to cases on collateral review. In re Fashina, 2007 U.S. App. LEXIS 11091, *2 (D.C. Cir. 2007). See also In re Zambrano, 369 U.S. App. D.C. 119, 433 F.3d 886 (D.C. Cir. 2006). In Fashina, the Court of Appeals flatly held that "Booker does not apply retroactively." Id. See also United States v. Crawford, 2007 U.S. Dist. LEXIS 35673, *5 (D.D.C. 2007) ("Our Court of Appeals recently addressed whether Booker applies retroactively under Teague and joined every other circuit considering the issue in holding that it does not."); United States v. Draffin, 2007 U.S. Dist. LEXIS 35692, *5-6 (D.D.C. 2007) (Our Court of Appeals recently addressed whether Booker applies retroactively under Teague, and joined every other circuit considering the issue in holding that it does not.").
That the decision in Booker does not apply retroactively is important because Mr. Buchanan's conviction became final on October 5, 2004 (when the time expired for filing a notice of appeal from his conviction),*fn6 which is several months before the Supreme Court issued its decision in Booker. Simply put, when Mr. Buchanan was sentenced by the Court in 2004, the federal Sentencing Guidelines were mandatory, not advisory. The Supreme Court's decision in Booker, which would make the Sentencing Guidelines advisory, had yet to be announced. This is important, because as the Supreme Court explained in Teague v. Lane, a judicial decision announcing a new rule of law applicable to criminal cases is retroactive only if the rule is substantive or a "watershed" procedural rule. 489 U.S. 288, 109 S.Ct. 1060. The Court of Appeals has stated that Booker was "neither a substantive rule nor a watershed rule of procedure and therefore is not retroactive." In re Fashina, 2007 U.S. App. LEXIS 11091 at *18.*fn7 Because Booker announced a new rule of criminal procedure, and did so after Mr. Buchanan's conviction became final, it does not apply to his case on collateral review. See Guzman v. United States, 404 F.3d 139, 144 (2d Cir. 2005) ("Booker is not retroactive, i.e., it does not apply to cases on collateral review where the defendant's conviction was final as of January 12, 2005, the date that Booker issued.").
Mr. Buchanan's second claim is that the government breached its plea agreement with him. Mr. Buchanan asserts, for the first time in this motion, that the government made an oral promise that he would receive only three years of probation, and no term of imprisonment, if he performed undercover work as part of another criminal investigation. See First Affidavit of Rickey Buchanan, April 18, 2005, at ¶ 2. Mr. Buchanan asserts that after he performed his part of the contract, i.e, the undercover work, the government "reneg[ed] on the [verbal] plea agreement" once it had received "the fruits of [his] extensive cooperation." Id. at ¶ 2. He states that this verbal agreement "was not revealed" to the Court or made a part of "the record." Id. at ¶ 8. The Court finds no merit to Mr. Buchanan's belated claim because it is inconsistent with both the two written plea agreements and Mr. Buchanan's own sworn testimony
As a general rule, "[w]hen a prosecutor secures a plea with a promise, the promise must be fulfilled." United States v. Jones, 313 U.S. App. D.C. 128, 131, 58 F.3d 688, 691 (D.C. Cir. 1995) (citing Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498 (1971)). "In other words, a plea agreement is a contract." Id. (citing United States v. Pollard, 295 U.S. App. D.C. 7, 18, 959 F.2d 1011, 1022 (D.C. Cir. 1992)). "As a consequence, courts will look to principles of contract law to determine whether a plea agreement has been breached." Id. (citing United States v. Papaleo, 853 F.2d 16, 19 (1st Cir. 1988) (other citation omitted)). The Supreme Court has explained that "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Santobello, 404 U.S. at 262, 92 S.Ct. at 498. See also United States v. Griffin, 641 F. Supp. 1546, 1549 (D.D.C. 1986)("[I]f the defendant's plea rests in any significant degree on a false promise, so that the false promise can be said to be part of the consideration of the plea agreement, defendant's plea loses its consensual character if such promise is not fulfilled."). Of course, it also follows that "'while the government must be held to the promises it made, it will not be bound to those it did not make. To do otherwise is to strip the bargaining process itself of meaning and content.'" United States v. Ahn, 343 U.S. App. D.C. 392, 402, 231 F.3d 26, 36 (D.C. Cir. 2000) (quoting United States v. Fentress, 792 F.2d 461, 464 (4th Cir. 1986)). "In the context of plea agreements, the defendant maintains the burden of proving that the agreement has been breached." Id. (citation omitted).
If Mr. Buchanan was promised by the government that he would only be sentenced to probation, as he now claims, he would be entitled to relief. Santobello, supra. On the record before the Court, however, it is plain that the government made no such promise. Mr. Buchanan signed two written plea agreements. The first written plea agreement contained an integration clause that expressly stated that no other agreements or promises existed between the parties. After signing the agreement and being released on his own recognizance, Mr. Buchanan was involved in a second incident of bank fraud. He then entered into a second written plea agreement, which also contained an integration clause that expressly stated that no other agreements or promises existed between the parties, excluding the earlier plea agreement.*fn8 In addition to an integration clause, each agreement provided that by pleading guilty to Bank Fraud, in violation of 18 U.S.C. § 1344, Mr. Buchanan faced a maximum possible penalty of up to thirty years in jail, and a potential fine of $1,000,000. The agreements also explained that the "sentence to be imposed in this case ...